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United States v. Rodriguez

United States Court of Appeals, Fifth Circuit

June 5, 2017

UNITED STATES OF AMERICA, Plaintiff - Appellee
v.
EDUARDO RODRIGUEZ, also known as Reynaldo Soto-Gervacio, Defendant-Appellant

         Appeal from the United States District Court for the Southern District of Texas

          Before REAVLEY, HAYNES, and COSTA, Circuit Judges.

          HAYNES, Circuit Judge

         Defendant-Appellant Eduardo Rodriguez appeals the district court's dismissal of his application for post-conviction relief, contending that it is timely under 28 U.S.C. § 2255(f)(4). Because we conclude that the facts underlying Rodriguez's claim could have been discovered through the exercise of diligence at least one year before Rodriguez filed for habeas relief, we AFFIRM.

         I. Background

         Rodriguez pleaded guilty to conspiring to transport undocumented aliens and was sentenced on June 14, 2012. As part of his plea agreement, Rodriguez agreed to waive his rights to appeal his conviction and sentence as well as his right to seek post-conviction relief. The district court entered Rodriguez's judgment of conviction on June 28, 2012. He did not file an appeal.

         On July 25, 2014, Rodriguez filed the instant pro se § 2255 petition, claiming that his trial attorney, Marc Montemayor, rendered ineffective assistance by failing to file an appeal on Rodriguez's behalf despite the fact that Rodriguez instructed him to do so. Rodriguez acknowledged that he had "failed to file this motion within the one year statute of limitation of 28 U.S.C. § 2255, " but Rodriguez argued that he was excused because he did not learn of Montemayor's failure to file the appeal until October 2013.

         Noting that Rodriguez "acknowledges the untimeliness of [his] claims and set[s] forth arguments against the application of the limitations defense, " the district court considered whether Rodriguez's claims were time barred under § 2255(f). The district court reasoned that the motion was untimely under § 2255(f)(1), that Rodriguez was not eligible for equitable tolling, and that § 2255(f)(2)-(4) "d[id] not appear to apply." Accordingly, the district court denied Rodriguez's motion and dismissed the action with prejudice. Rodriguez filed a notice of appeal.

         This court granted a certificate of appealability on two issues: (1) whether Rodriguez adequately raised in the district court his argument that his ineffective assistance claim was timely under § 2255(f)(4) because he filed it within one year of discovering that his attorney had not filed a notice of appeal and, (2) if the foregoing argument was adequately preserved, whether the case must be remanded for the district court to evaluate the timeliness of Rodriguez's ineffective assistance claim under § 2255(f)(4).

         II. Standard of Review

         We review de novo the district court's conclusion that Rodriguez's motion is untimely. See United States v. Cavitt, 550 F.3d 430, 435 (5th Cir. 2008) ("In the context of 28 U.S.C. § 2255, this court reviews a district court's factual findings for clear error and its legal conclusions de novo."). Furthermore, although we usually review a district court's refusal to grant an evidentiary hearing on a § 2255 motion for abuse of discretion, Cavitt, 550 F.3d at 435, a review of a district court's determination that no hearing was required "obligates us to look behind that discretionary decision to the court's underlying determination that ['Rodriguez's'] motion is untimely-a determination we review de novo, " Anjulo-Lopez v. United States, 541 F.3d 814, 817 (8th Cir. 2008).

         III. Discussion

         As to the first issue, both Rodriguez and the Government contend that Rodriguez adequately raised his argument that his ineffective assistance claim was timely under § 2255(f)(4). Because we conclude that Rodriguez does not prevail on the merits of his argument, we pretermit consideration of this first issue and move to the second.

         We thus analyze whether there is evidence requiring a hearing on the timeliness of Rodriguez's ineffective assistance claim under § 2255(f)(4). A § 2255 movant has one year to seek post-conviction relief. 28 U.S.C. § 2255(f). This one-year period runs from the latest of four possible dates, one of which is "the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence." 28 U.S.C. § 2255(f)(4). For this provision to apply, "a petitioner's diligence must merely be 'due' or 'reasonable' under the circumstances." Starns v. Andrews,524 F.3d 612, 619 (5th Cir. 2008) (citation omitted) (analyzing 28 U.S.C. § 2244(d)(1)(D)).[1] As the Supreme Court has explained, "diligence can be shown by prompt action on the part of the petitioner as soon as he is in a position to realize" ...


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