[NOT FOR PUBLICATION–NOT TO BE CITED AS PRECEDENT]

         United States Court of Appeals
                       For the First Circuit


No. 00-1524

                          RAYMOND L. GARY,

                       Petitioner, Appellant,

                                 v.

                           UNITED STATES,

                       Respondent, Appellee.


         APPEAL FROM THE UNITED STATES DISTRICT COURT

                  FOR THE DISTRICT OF RHODE ISLAND

              [Hon. Mary M. Lisi, U.S. District Judge]


                               Before

                     Stahl, Circuit Judge,
         Campbell and Bownes, Senior Circuit Judges.




     Raymond L. Gary on brief pro se.
     Margaret E. Curran, United States Attorney, Donald C.
Lockhart and Gerard B. Sullivan, Assistant United States
Attorneys, on brief for appellee.




                          February 2, 2001
            Per Curiam. Raymond J. Gary appeals pro se from the

denial of his 28 U.S.S. § 2255 petition as untimely given

the one-year time limit imposed by the Antiterrorism and

Effective Death Penalty Act of 1996 ("AEDPA").           Passing the

question whether the time limits of amended § 2255 are

subject to equitable tolling, we affirm essentially for the

reasons stated by the district court.         We add the following

comments to address arguments pressed on appeal.

            Gary suggests that the one-year time limitation

should be equitably tolled because he was "misled" by Lindh

v. Murphy, 

(1997) into thinking that the AEDPA

does not apply where, as here, the underlying criminal case

was initiated pre-AEDPA.          This argument fails.       First,

Gary's interpretation of Lindh is not reasonable.          Cf. Green

v.   White, 

, 1003 (9th Cir. 2000) (denying

equitable    tolling      where   reliance    on   Lindh   was     not

reasonable).       Second, Gary's reliance argument is largely

undercut by the fact that Lindh was decided only one day

before his § 2255 petition was due.

            Gary   also   suggests   that    equitable   tolling    is

warranted because his attorney gave him misleading advice to

the effect that he had "plenty of time" and should wait

until he reached his final destination before sending for
his record.       This argument fails if for no reason than that

attorney     error      does    not,    as    a     general   rule,     warrant

equitable tolling.             See, e.g., Kreutzer v. Bowersox, 

, 463 (8th Cir. 2000) (counsel's confusion about

AEDPA's time limit does not warrant equitable tolling);

Sandvik v. United States, 

, 1271 (11th Cir.

1999) (denying equitable tolling where § 2255 petition was

late because attorney used regular mail).

             As for Gary's suggestion that equitable tolling is

warranted because his counsel intended to deceive him, this

argument is arguably waived.             In his factual proffer below,

Gary   did      not   aver   that   counsel        acted   from   an   improper

motive.      In any event, the argument fails on the proffered

facts.     There is no suggestion in Gary's affidavit that he

indicated to counsel a desire to collaterally attack his

conviction until sometime after the time limit expired.

Rather, during the relevant period, Gary and his attorney

discussed Gary's desire to get federal credit for time

served     in     state      custody.         In    the    context     of   this

conversation, counsel's advice seems appropriate.

             Finally, Gary proffers copies of letters in which

he requests his former counsel to send his record.                          These

letters were not submitted below.                  Even if we could properly


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consider this material (and we cannot), see United States v.

Kobrosky, 

, 457 (1st Cir. 1983) (evidentiary

matters not first presented to the district court are not

properly before us), it would not alter the outcome.     The

letters go to the question whether Gary was unable to file

a timely § 2255 petition due to the fact that he did not

have necessary parts of the record, and, if so, whether he

was diligent in seeking his case file from his attorney.

The letters are some evidence that Gary was diligent late in

the game, when the time limit had already expired.   However,

they do not show him to have been diligent during the

relevant period.   In fact, during the relevant period Gary

simply acquiesced in his attorney's suggestion that he wait

until he reach his final destination before sending for his

record.

          Affirmed.




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