from the United States District Court for the Southern
District of Texas
REAVLEY, HAYNES, and COSTA, Circuit Judges.
HAYNES, Circuit Judge
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,
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.
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
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.
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).
Standard of Review
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).
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.
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)). 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" ...