IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-11222 Summary Calendar

CECIL DON VINEYARD,

Petitioner-Appellant,

versus

JANIE COCKRELL, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,

Respondent-Appellee.

-------------------- Appeal from the United States District Court for the Northern District of Texas USDC No. 5:01-CV-173 -------------------- November 7, 2002

Before DAVIS, WIENER, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

We granted a certificate of appealability to Cecil Don

Vineyard, Texas prisoner no. 931998, on the issue whether

Vineyard’s reliance on his attorney’s alleged representations as

to the status of his case is sufficient to warrant equitable

tolling. Vineyard was twice convicted of possession of child

pornography arising out of a single transaction; the habeas

application now at issue pertains to the second conviction,

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 01-11222 -2-

identified in the record as “#6614.” The state appellate court

overturned the conviction on double jeopardy grounds because

Vineyard had already been convicted in the prior case based on

materials seized during the same search as in the present case.

Vineyard v. State,

(Tex. App. 1995), rev’d,

(Tex. Crim. App. 1998) (en banc). The Texas

Court of Criminal Appeals reinstated the conviction, holding that

the subsequent prosecution was not double jeopardy. Vineyard v.

State,

(Tex. Crim. App. 1998) (en banc).

On remand, the Texas court of appeals rejected Vineyard’s

remaining appellate arguments and affirmed the conviction in an

unpublished opinion. The Court of Criminal Appeals refused

Vineyard’s petition for discretionary review (“PDR”) on December

9, 1998. In June 4 2000, about 18 months after the PDR was

denied, and well after the expiration of the one-year limitation

period, Vineyard was arrested and returned to prison after having

been paroled on the earlier conviction and freed on an appeal

bond with respect to the conviction now at issue.

Vineyard contends that his

petition should

not have been dismissed as untimely because his retained counsel,

Lance Hall, deliberately or negligently failed to inform him that

the Court of Criminal Appeals had denied Vineyard’s PDR, thus

misleading Vineyard as to the starting time of the limitations

period of

. Vineyard also contends that Hall

misled him to believe that Hall was preparing a

No. 01-11222 -3-

petition. See

(d)(1)(A) (providing one-year

limitation period). In dismissing Vineyard’s pro se habeas

application as time-barred, the district court concluded without

explanation that no conditions existed for equitable tolling.

An attorney’s misrepresentations may be grounds for

equitable tolling. See United States v. Wynn,

(5th Cir. 2002). In Wynn, we remanded the case because the

district court did not conduct a hearing or make factual

findings, and the question was “sufficiently close to warrant

remand for factual findings as to the factual basis for Wynn’s

allegations and the reasonableness of Wynn’s reliance o[n] his

attorney’s representations and advice.”

.

Vineyard has asserted under penalty of perjury that on

specific dates during the limitation period he was deliberately

or negligently misinformed by Hall that his PDR was still pending

in the Court of Criminal Appeals. Vineyard also presented

affidavit and documentary evidence that Hall continued to mislead

Vineyard and his sister into believing that Hall was going to

file a federal habeas petition, thus further delaying Vineyard’s

pro se filing. Vineyard contends that he was not aware of the

PDR’s denial until he was arrested and returned to prison after

the limitation period had expired. He contends that he did not

know the actual date of the PDR’s denial until the respondent

sought dismissal of the present habeas application in the

district court. This misinformation or lack of information No. 01-11222 -4-

allegedly caused Vineyard to miscalculate the beginning of the

limitation period as having begun when he was arrested instead of

a year and a half earlier. He filed his federal habeas

application within a year of his arrest and shortly before he

believed the limitations period was to expire.

Vineyard has made a colorable claim that he is entitled to

equitable tolling under Wynn. Because the district court in

Vineyard’s case, like the court in Wynn, conducted no hearing and

made no factual findings, and because the record before this

court indicates that the issue is a close one, should Vineyard

substantiate his allegations, we VACATE the district court’s

dismissal and REMAND the case for further findings of fact

relevant to Hall’s alleged misrepresentations and the

reasonableness of Vineyard’s reliance upon them with regard to

equitable tolling of the one-year limitation period.

Vineyard has filed a motion that we construe as a motion to

supplement the record on appeal. The respondent has filed a

motion to strike some of Vineyard’s exhibits on grounds that they

are outside the record on appeal. In light of our remand for

further fact-finding by the district court, we DENY both motions

while noting that we did not consider the challenged exhibits in

reaching our decision.

JUDGMENT VACATED; CASE REMANDED; ALL MOTIONS DENIED