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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,
Case: 18-40790 Document: 00516004372 Page: 2 Date Filed: 09/07/2021
“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
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
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.
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).
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
Case: 18-40790 Document: 00516004372 Page: 4 Date Filed: 09/07/2021
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
The district court therefore did not err, much less abuse its discretion,
in declining to equitably toll AEDPA’s statute of limitations.
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
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
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).
Case: 18-40790 Document: 00516004372 Page: 7 Date Filed: 09/07/2021
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
Case: 18-40790 Document: 00516004372 Page: 8 Date Filed: 09/07/2021
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
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).