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In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 02-30396
_______________
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
VERSUS
KEVIN RIGGS,
ALSO KNOWN AS KEVIN THOMAS,
Defendant-Appellee.
_________________________
Appeal from the United States District Court
for the Western District of Louisiana
_________________________
December 30, 2002
Before SMITH, BARKSDALE, and
motion.
EMILIO M. GARZA, Circuit Judges.
I.
JERRY E. SMITH, Circuit Judge:
A.
In 1991, the police suspected Riggs and
The government appeals the grant of Kevin
associates of drug trafficking and lured Riggs
Riggs's motion for collateral relief under 28
and John Jackson from their motel room based
U.S.C. § 2255. Concluding that the district
on the statements of Riggs's associates that
court abused its discretion by equitably tolling
these two men possessed several grams of
the statute of limitations for Riggs's untimely
cocaine. Riggs got behind the wheel of their
motion, we reverse and dismiss the § 2255
car, and Jackson placed an object in the trunk.

Riggs then slowly drove the car toward the
wanted to challenge the possession conviction
motel lobby, with Jackson walking alongside.
as well and would not allow Higgins to file the
As the police approached the car, Riggs leaned
motion. According to Riggs, however, Hig-
toward the passenger-side floor as if to place
gins told him that the limitations period did not
something on or retrieve something from the
expire until Riggs began to serve the § 924(c)
floor.
sentence. Whatever the reason, it is
undisputed that Higgins never filed the
The police arrested both men. A search of
motion.3
the car yielded seventy grams of cocaine from
the trunk, a pistol from the underneath the
Riggs eventually retained new counsel and
passenger-side floor mat, and some pills
filed a § 2255 motion in December 2001,
scattered throughout the car.
nearly five years after the limitations period
expired. The Antiterrorism and Effective
Riggs was charged with, and convicted by
Death Penalty Act of 1996 ("AEDPA"), Pub.
a jury of, possession of cocaine with intent to
L. No. 104-132, 110 Stat. 1214 (1996),
distribute in violation of 21 U.S.C. § 841 and
imposed a new, one-year statute of limitations
using and carrying a firearm during a drug
on § 2255 motions. Because his conviction
trafficking crime in violation of 18 U.S.C.
was final before the enactment of AEDPA,
§ 924(c).1 The court sentenced him to 121
Riggs had a one-year grace period to file his
months' imprisonment for the possession
§ 2255 motion. United States v. Flores, 135
count and 60 months for the § 924(c) count,
with the sentences to run consecutively. In
2
1994, we affirmed in an unpublished opinion.
(...continued)
at 144. Arguably, this definition would not permit
a conviction of Riggs for "using" the pistol, though
B.
he might still be convicted for "carrying" it. See
In 1996, Riggs retained George Higgins III
Muscarello v. United States, 524 U.S. 125, 126-27
to file a motion for collateral relief under
(1998) (holding that the "carry" offense of § 924(c)
§ 2255. Higgins never filed the motion; Riggs
"applies to a person who knowingly possesses and
and Higgins dispute why. According to Hig-
conveys firearms in a vehicle"); United States v.
gins, he advised Riggs that they should
Brown, 161 F.3d 256 (5th Cir. 1998) (en banc)
challenge the § 924(c) conviction based on the
(applying harmless error analysis to a defective,
intervening decision in Bailey v. United States,
pre-Bailey jury instruction because a jury finding
516 U.S. 137 (1995).2 Higgins says that Riggs
of (impermissible-after-Bailey) passive "use"
necessarily included a finding of "carrying").
Riggs's indictment and jury instructions charged
1 Riggs also was charged with, and convicted by
him with both using and carrying the pistol.
a jury of, conspiracy to possess cocaine with intent
to distribute in violation 21 U.S.C. § 846, but the
3 Riggs also asserts that he wrote repeatedly to
court granted Riggs's motion for acquittal on this
Higgins, but Higgins denies receiving any letters
count.
from Riggs. Riggs also filed a complaint against
Higgins with the state bar disciplinary office. The
2 In Bailey, the Court held that the "use" offense
complaint and Higgins's response are in the record,
of § 924(c) requires "active employment" of a
and we have followed the lead of the parties in
firearm, not "mere possession." Bailey, 516 U.S.
using them to describe Higgins's conduct and the
(continued...)
dispute between Riggs and Higgins.
2

F.3d 1000, 1006 (5th Cir. 1998). This period
court should not have equitably tolled the
expired on April 24, 1997.4 Riggs concedes
statute of limitations because Riggs has
that his motion is untimely.
alleged, at worst, attorney error or neglect,
which is not grounds for equitable tolling.
The district court nevertheless granted the
Although we review a decision to invoke
motion and vacated Riggs's § 924(c)
equitable tolling for abuse of discretion, Fierro
conviction. The court found that Higgins
v. Cockrell, 294 F.3d 674, 679 (5th Cir.
erred by advising Riggs "of the wrong time for
2002),6 a court by definition abuses its
filing his § 2255 motion." It concluded that
discretion when it makes an error of law,
this "incorrect legal advice" amounted to
United States v. Delgado-Nunez, 295 F.3d
ineffective assistance of counsel and warranted
494, 496 (5th Cir. 2002). Concluding that the
equitable tolling of the limitations period. The
district court made such an error, we reverse.
court granted the motion on the merits,
apparently concluding that a reasonable jury
Equitable tolling is permitted only "in rare
would not have convicted Riggs of the §
and exceptional circumstances." Davis v.
924(c) count if given a proper, post-Bailey
Johnson, 158 F.3d 806, 811 (5th Cir. 1998).
instruction.5
An attorney's intentional deceit could warrant
equit able tolling, but only if the petitioner
II.
shows that he reasonably relied on his
The government argues that the district
attorney's deceptive misrepresentations.
United States v. Wynn, 292 F.3d 226, 230-31
(5th Cir. 2002). On the other hand, "counsel's
erroneous interpretation of the statute of
4 Although the Supreme Court did not apply
limitations provision cannot, by itself, excuse
Bailey retroactively until Bousley v. United States,
the failure to file [petitioner's] habeas petition
523 U.S. 614 (1998), we have held that Bailey was
in the district court within the one-year
retroactive on its own terms before Bousley.
limitations period." Fierro, 294 F.3d at 683.
United States v. Lopez, 248 F.3d 427, 432 (5th
If there were ever any doubt that an attorney's
Cir.), cert. denied, 122 S. Ct. 222 (2001). Thus,
Riggs has no claim to tolling based on a newly
error or neglect does not warrant equitable
recognized right.
tolling, o ur recent decision in Cousin v.
Lensing, 2002 U.S. App. LEXIS 23381 (5th
5 The district court seemed concerned that the
Cir. Nov. 12, 2002), erased it: "[M]ere
evidence suggested an equally plausible and inno-
attorney error or neglect is not an
cent inference, namely, that Riggs reached toward
the passenger-side floor to hide the pills, not to get
the pistol (and thereby reveal his knowledge of its
presence), and that Jackson was acquitted of the
6 Fierro involved a petition for a writ of habeas
§ 924(c) count. Although we do not reach the
corpus under 28 U.S.C. § 2254, not a motion of
merits of Riggs's motion, we observe that a jury
collateral relief under § 2255, but AEDPA added
concluded that the evidence proved that Riggs was
similar one-year statutes of limitations to both sec-
reaching for the pistol and that Jackson was walk-
tions, which we interpret similarly for the purpose
ing outside the car when arrested. Furthermore, we
of an equitable doctrine like equitable tolling.
note that, even if Riggs's jury instruction was
Davis v. Johnson, 158 F.3d 806, 810 n.5 (5th Cir.
defective under Bailey, this error was susceptible
1998). We therefore do not distinguish between §
to harmless-error review.
2255 cases and § 2254 cases in this opinion.
3

extraordinary circumstance such that equitable
intentionally deceived him. Moreover, the
tolling is justified." Id. at *12.
district court, speaking as it did of Higgins's
being "ineffective in advising him" and offering
This holding was long implied in our case-
"incorrect legal advice, apparently believed
law and should not be surprising. As we noted
that Riggs had requested equitable tolling
in Cousin, a prisoner has no right to counsel
based on mere attorney error." Finally, Riggs
during post-conviction proceedings. Id. at *11
confirms, in his brief, the lack of evidence of
(citing Coleman v. Thompson, 501 U.S. 722,
intentional deceit; he can muster only a very
752 (1991)). This is why our equitable tolling
tepid and conclusory assertion that Higgins's
cases do not laboriously apply the familiar test
statements "were possibly a deception."9
of Strickland v. Washington, 466 U.S. 668
(1984): Ineffective assistance of counsel is
Riggs's assertions, if proven, may warrant
irrelevant to the tolling decision. Likewise, a
professional discipline against Higgins, but
petitioner's own ignorance or mistake does not
they do not warrant equitable tolling of the
warrant equitable tolling, and it would be
statute of limitations under our precedents.
rather peculiar to treat a trained attorney's
The district court abused its discretion by find-
erro r more leniently than we treat a pro se
ing otherwise. The order granting the § 2255
litigant's error. Id. at *11-*12 (citing Cole-
motion is REVERSED, and the § 2255 motion
man, 184 F.3d at 403).7
is DISMISSED.
The record contains no evidence that
Higgins intentionally deceived Riggs about the
statute of limitations for § 2255. The evidence
is conflicting on why Higgins did not file the
motion in 1996. Riggs asserts that Higgins
misunderstood the statute of limitations,
whereas Higgins asserts that Riggs refused to
let him file the motion. Even if we accept
Riggs's version,8 though, he merely asserts
that Higgins committed a very basic and
unprofessional error, not that Higgins
7 A district court's error in unintentionally mis-
9 Riggs also argues that he is actually innocent
leading a petitioner about the statute of limitations
of the § 924(c) count because the allegedly de-
warrants equitable tolling, United States v. Pat-
fective jury instruction did not ensure that the jury
terson, 211 F.3d 927, 931-32 (5th Cir. 2000), but
convicted him of every element of the crime. More
Riggs does not contend that the district court
to the point, he argues that actual innocence
misled him in any way.
warrants equitable tolling. The court, however, did
not base equitable tolling on this argument.
8 We do have some reason to accept Riggs's
Moreover, "a petitioner's claims of actual inno-
version. In his response to Riggs's complaint with
cence are [not] relevant to the timeliness of his
the state bar disciplinary office, Higgins stated that
petition." Cousin, 2002 U.S. App. LEXIS 23381,
he "believe[d] that the Bailey motion is still a
at *13 (citing Felder v. Johnson, 204 F.3d 168,
viable motion to be filed on behalf of [Riggs]."
171 (5th Cir. 2000)).
4