United States of America v. Julio Cardenas

New Orleans, LA - Criminal defense lawyer represented defendant

with various firearms and controlled-substance charges.

Cardenas (through counsel) then sought post-conviction relief. On

December 4, 2016, he filed a motion under 28 U.S.C. § 2255(a) seeking to

vacate his conviction and sentence. Cardenas raised two arguments. First, he

argued that the prosecuting attorney in his case had a conflict of interest.

According to Cardenas, "[t]he Supreme Court's decision in Young [v. United

States ex rel. Vuitton et Fils S.A., 481 U.S. 787 (1987),] categorically forbids an

interested person from controlling the defendant's prosecution.” Second,

Cardenas argued his counsel was ineffective for failing to object to the

conflict of interest.

The Government moved to dismiss. It argued Cardenas's motion

failed to comply with AEDPA's one-year limitations period, set forth in 28

U.S.C. § 2255(f). Specifically, the Government noted Cardenas's conviction

became final on October 19, 2015, the day the Supreme Court denied his

petition for writ of certiorari. The one-year limitations period of 28 U.S.C.

§ 2255 thus expired on October 18, 2016. And Cardenas filed his motion for

relief under § 2255 on December 4, 2016, roughly 46 days after the

limitations period expired. The Government further argued there was no

basis to equitably toll the limitations period, and alternatively, that

Cardenas's motion did not warrant relief on the merits.

Several months later, Cardenas's post-conviction counsel (William

Mallory Kent) filed a motion to withdraw and took responsibility for the

untimely filing. Kent had erroneously believed that a petition for rehearing

on denial of certiorari tolled the statute of limitations. According to Kent,

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"Mr. Cardenas was concerned that we had missed the deadline and I assured

him we had not.” Because of his mistake, and the failing health of his wife,

Kent asked the court for leave to withdraw. A magistrate judge granted the

motion.

Cardenas(through new counsel)filed a response to the Government's

motion to dismiss. He argued equitable tolling should apply to his § 2255

motion because Kent intentionally misled him regarding the limitations

period. In the alternative, Cardenas argued the district court should

recharacterize at least one of his earlier pro se filings as a timely § 2255

motion.

The magistrate judge issued a report and recommendation that

Cardenas's motion be dismissed as untimely, or alternatively, denied as

meritless. Cardenas submitted objections to the report. The district court

concluded the § 2255 motion was untimely and Cardenas was not entitled to

equitable tolling or recharacterization of his pro se filings. Cardenas appealed.

II.

It's undisputed that Cardenas's § 2255 motion is untimely. The only

question is whether he's entitled to equitable tolling or recharacterization of

his pro se filings. We review the district court's determinations for abuse of

discretion. See Fisher v. Johnson, 174 F.3d 710, 713 (5th Cir. 1999) (equitable

tolling); United States v. Elam, 930 F.3d 406, 409 (5th Cir. 2019)

(recharacterization). Under that standard, we review factual findings for

clear error and legal conclusions de novo. United States v. Lipscomb, 299 F.3d

303, 338–39 (5th Cir. 2002).

A.

AEDPA's statute of limitations may be equitably tolled. See Holland

v. Florida, 560 U.S. 631 (2010). A prisoner "is entitled to equitable tolling

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only if he shows (1) that he has been pursuing his rights diligently, and

(2) that some extraordinary circumstance stood in his way and prevented

timely filing.” Id. at 649 (quotation omitted). As a general matter, equitable

tolling is warranted only in "rare and exceptional circumstances.” Davis v.

Johnson, 158 F.3d 806, 811 (5th Cir. 1998); see also United States v. Patterson,

211 F.3d 927, 931–32 (5th Cir. 2020) (per curiam); United States v. Wynn, 292

F.3d 226, 230 (5th Cir. 2002).

Cardenas says he's entitled to equitable tolling because his attorney

erred in calculating the AEDPA limitations period. That argument is

squarely foreclosed by our precedent: "[A]n attorney's error or neglect does

not warrant equitable tolling.” United States v. Riggs, 314 F.3d 796, 799 (5th

Cir. 2002). That's because an "attorney is the prisoner's agent, and under

well-settled principles of agency law, the principal bears the risk of negligent

conduct on the part of his agent.” Maples v. Thomas, 565 U.S. 266, 280–81

(2012) (quotation omitted).

Cardenas tries to avoid this result by arguing that his attorney

intentionally deceived him. See Wynn, 292 F.3d at 230. But this case is a far

cry from Wynn. Wynn's counsel falsely claimed to have "filed [a] § 2255

motion and that a copy of the motion would be forwarded to petitioner.” Id.

at 228. After the clerk's office told Wynn that no motion had been filed, his

attorney again lied and claimed to have "filed the habeas corpus petition

directly” with the sentencing court. Id. at 228–29. We agreed that "Wynn's

allegation that he was deceived by his attorney . . . present[ed] a 'rare and

extraordinary circumstance' beyond petitioner's control.” Id. at 230. Even

then, the case presented "a close question as to whether Wynn was put on

notice to make further inquiry despite the representations made by his

attorney.” Ibid. We therefore remanded for further factual findings as to "the

reasonableness of Wynn's reliance of his attorney's representations and

advice.” Ibid.

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Compare that case to Riggs. There, a federal prisoner sought to

challenge his conviction under 18 U.S.C. § 924(c) for using a firearm during

a drug-trafficking crime. 314 F.3d at 797. Post-conviction counsel erroneously

"told him that the [AEDPA] limitations period did not expire until Riggs

began to serve the § 924(c) sentence.” Id. at 798. Following that advice,

Riggs did not file a § 2255 motion until nearly five years after the limitations

period had expired. Ibid. Noting there was no evidence counsel

"intentionally deceived Riggs about the statute of limitations,” we held

Riggs's allegations did "not warrant equitable tolling of the statute of

limitations.” Id. at 799–800.

This case is squarely controlled by Riggs. The record shows that

Cardenas's counsel, Mr. Kent, simply messed up: "Mr. Cardenas was

concerned that we had missed the deadline and I assured him we had not. I

had no doubt in my mind at that time that the deadline was on the one-year

anniversary of the denial of rehearing by the Supreme Court.” Kent further

explained: "[A] petition for rehearing on a denial of certiorari on direct

appeal does not toll the AEDPA time limit. All I can say in my defense is the

concept is so counter intuitive [sic] that it did not even occur to me to check

or research the question.” Ignorant? Yes. Intentionally deceptive? No. This

is precisely the kind of case that does not warrant equitable tolling under

Riggs.

The district court therefore did not err, much less abuse its discretion,

in declining to equitably toll AEDPA's statute of limitations.

B.

The next question is whether Cardenas made pro se filings that should

have been recharacterized—either individually or together—as a timely

§ 2255 motion.

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Generally, "pro se habeas petitions are not held to the same stringent

and rigorous standards as are pleadings filed by lawyers.” Hernandez v.

Thaler, 630 F.3d 420, 426 (5th Cir. 2011) (per curiam) (quotation omitted).

When reviewing a pro se litigant's filings, "[i]t is the substance of the relief

sought by . . . [the] pleading, not the label that the petitioner has attached to

it, that determines the true nature and operative effect of [the] habeas filing.”

Id. at 426–27. To that end, this court has liberally construed pro se filings as

initial § 2255 motions under certain circumstances. See, e.g., Elam, 930 F.3d

at 410; United States v. Santora, 711 F.2d 41, 42 (5th Cir. 1983); United States

v. Flores, 380 F. App'x 371, 372 (5th Cir. 2010) (per curiam); United States v.

Moron-Solis, 388 F. App'x 443, 444 (5th Cir. 2010) (per curiam).

Cardenas argues that at least one of his pro sefilings in the district court

should have been recharacterized as a timely § 2255 motion under these

standards. He says he raised the very issue argued in his § 2255 motion—the

apparent conflict of interest with the prosecuting attorney in his case—

multiple times before his one-year statutory deadline. He further argues that

he submitted multiple requests for appointment of counsel and relief under

the Supreme Court's decision in Johnson v. United States, 576 U.S. 591

(2015).

There are two fundamental defects with Cardenas's argument. First,

the "substance of the relief” sought in most of the pro sefilings was not habeas

relief—that is, Cardenas did not challenge his custody by seeking vacatur of

his conviction or sentence.* Hernandez, 630 F.3d at 426. In one of the filings,

* Section 2255 is, of course, a statutory substitute for habeas corpus. See United

States v. Hayman, 342 U.S. 205, 219 (1952). But the sine qua non in habeas and § 2255

proceedings is the same: The prisoner must allege that his custody is unlawful. See, e.g., Ex

parte Milligan, 71 U.S. (4 Wall.) 2, 131 (1866) ("If the military trial of Milligan was contrary

to law, then he was entitled, on the facts stated in his petition, to be discharged from

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Cardenas merely sought a status update on his compassionate-release

motion, see 18 U.S.C. § 3582(c)(2), and asked the court to grant him leave to

file a pro se appeal if that motion was denied. In another, Cardenas asked the

court for a number of documents related to his case.

Those requests stand in stark contrast to filings we've previously

recharacterized. Consider, for example, our decision in Elam. There, the

§ 2255 movant filed a "Motion Requesting SPECIAL DISCOVERY

HEARING,” in which he "asserted that his constitutional right to effective

assistance of counsel had been violated, resulting in a deprivation of his

liberty.” 930 F.3d at 408, 410. He also "stated seven bases for [that] claim[,]

. . . challenged his conviction, maintained that his guilty plea was entered

under duress, and averred that counsel coerced his guilty plea.” Id. at 410.

That radically differs from asking a court to provide a status update or to

produce documents.

Second, Cardenas's filings that do seek relief from his sentence assert

an entirely different basis for relief from the one asserted here. In his motion

for appointment of counsel, Cardenas argued his sentence violated Johnson

because the district court treated his prior attempted-murder conviction as a

predicate "crime of violence” for the § 4B1.2 career-offender enhancement.

Even if we recharacterized that filing as a § 2255 motion, it would not help

Cardenas. That's because Cardenas would still have to show his current

§ 2255 motion is an amendment that "relates back” to the original filing. See

Fed. R. Civ. P. 15(c); United States v. Gonzalez, 592 F.3d 675, 679 (5th

Cir. 2009) (per curiam) (explaining that an amendment does not relate back

if it "assert[s] a new ground for relief supported by facts that differ in both

custody . . . .”); Hayman, 342 U.S. at 223 n.40 (noting § 2255 creates statutory "procedures

providing the same relief” as the common-law writ of habeas corpus).

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time and type from those the original pleading set forth” (quotation

omitted)). Obviously, the old Johnson-based claim asserts a different

"ground for relief” from the new conflict-of-interest claim. Cf. Brannigan v.

United States, 249 F.3d 584, 588 (7th Cir. 2001) (holding the word "claim”

in AEDPA means "a challenge to a particular step in the case, such as the

introduction of a given piece of evidence, the text of a given jury instruction,

or the performance of counsel”).

Cardenas says that shouldn't matter because the district court

should've (1) recharacterized his Johnson motion as a § 2255 motion;

(2) given Cardenas notice of that recharacterization under Castro v. United

States, 540 U.S. 375, 383 (2003); and then (3) allowed Cardenas to add

whatever other claims he might've wanted to add under Elam. This misreads

both Castro and Elam.

Start with Castro. That case stands for the proposition that when a

district court recharacterizes a pro se litigant's motion it must provide him

with certain procedural opportunities:

[T]he district court must notify the pro se litigant that it intends

to recharacterize the pleading, warn the litigant that this

recharacterization means that any subsequent § 2255 motion

will be subject to the restrictions on "second or successive”

motions, and provide the litigant an opportunity to withdraw

the motion or to amend it so that it contains all the § 2255

claims he believes he has.

Castro, 540 U.S. at 383. Castro thus prevents district courts from enforcing

AEDPA's limitations on second-or-successive § 2255 motions against pro se

litigants who think they are filing their first § 2255 motion. See ibid.

(explaining that if a district court does not comply with the above-mentioned

procedure, "the [first] motion cannot be considered to have become a § 2255

motion for purposes of applying to later motions [AEDPA's] 'second or

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successive' restrictions”). Castro does not purport to create a remedy for

situations in which a district court failed to recharacterize a pro se litigant's

filings. Castro is thus a shield, not an appellate sword.

Taken out of context, our decision in Elam could be read to suggest

otherwise. There, we held it was an abuse of discretion not to recharacterize

a pro se prisoner's filing as a timely § 2255 motion. 930 F.3d at 410. We

directed the district court on remand to "give Elam notice that his specialdiscovery motion is being construed as a § 2255 motion and . . . allow a

reasonable opportunity to amend or withdraw it.” Ibid. (citing Castro, 540

U.S. at 377, 383). Cardenas takes that quote to mean the Castro procedure is

required every time a district court should have recharacterized a pro se filing,

and that a litigant may amend his recharacterized pleading to assert any claim.

But that can't be what Elam meant because such a broad reading

would overrule our precedents governing Rule 15(c)'s "relation-back”

standard in § 2255 cases. See Gonzalez, 592 F.3d at 679; Fed. R. Civ. P.

15(c). Under Cardenas's distorted reading of Elam and Castro, a § 2255

movant could violate AEDPA's limitations period, look back with the benefit

of hindsight to find something that might be recharacterized as a § 2255

motion, and then use that recharacterized motion to shoehorn all sorts of

brand new (and otherwise time-barred) claims into the § 2255 litigation—

including claims that "assert a new ground for relief supported by facts that

differ in both time and type from those the original pleading set forth.”

Gonzalez, 592 F.3d at 679 (quotation omitted). That would be quite a

bonanza, and it would conflict with both AEDPA's limitations period and

Gonzalez.

We decline Cardenas's invitation to rewrite Gonzalez. Instead, we see

Gonzalez and Elam as entirely consistent: When a district court

recharacterizes a filing as a § 2255 motion, the movant must have the

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opportunity to amend his now-recharacterized motion (Elam) to include any

claims that relate back to the original pleading under Rule 15(c) (Gonzalez).

Cardenas is not entitled to recharacterization of anything. And even if he

were entitled to have his pro se Johnson motion recharacterized as a § 2255

motion, his current arguments alleging prosecutorial conflict of interest do

not relate back to his Johnson filing under Rule 15(c).

AFFIRMED.