     Case: 17-30428    Document: 00515069553       Page: 1   Date Filed: 08/08/2019




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT


                                    No. 17-30428                United States Court of Appeals
                                                                         Fifth Circuit

                                                                       FILED
                                                                  August 8, 2019
UNITED STATES OF AMERICA,
                                                                  Lyle W. Cayce
             Plaintiff - Appellee                                      Clerk


v.

MARIO DURAN,

             Defendant - Appellant




                 Appeal from the United States District Court
                    for the Western District of Louisiana


Before ELROD, GRAVES, and OLDHAM, Circuit Judges.
JAMES E. GRAVES, JR., Circuit Judge:
      Federal Prisoner Mario Duran filed the instant 28 U.S.C. § 2255 motion
to vacate, correct, or set aside his prison sentence of 120 months and five years
of supervised release following his conviction for one count of transportation of
child pornography, in violation of 18 U.S.C. § 2252A(a)(1). In his § 2255 motion,
Duran argues that his counsel was ineffective for disregarding Duran’s instruc-
tion to file a direct appeal. Without holding an evidentiary hearing, the district
court found Duran’s motion untimely and alternatively found that his ineffec-
tive assistance of counsel claim lacked merit. We agree that Duran’s § 2255
motion is untimely. Therefore, we affirm.
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                                No. 17-30428
                                      I.
                                      A.
      While investigating an unrelated matter, Acadia Parish sheriff’s depu-
ties discovered Duran in a parking lot with two minor age girls in his vehicle.
Duran claimed the girls were the daughters of his friend, and that he was
transporting them to Laredo, Texas. After hearing his response, officers con-
ducted a search of Duran’s vehicle with his consent. Officers discovered three
cell phones during the search. Then the officers interviewed the girls, who
claimed that they had never met Duran before that day. Their uncle had taken
them to Alabama to meet Duran. Duran was supposed to take them to Laredo
to meet their deported father. The girls also told officers that Duran had made
sexual remarks to them.
      Duran later admitted to talking to one of the girls about her breasts and
virginity. The girl was 15-years old at the time. Duran denied touching either
girl. He later admitted to having an image of another young girl on one of the
cell phones and agreed to show the image to an officer. The officer discovered
several images of an 11-year old girl on the phone, who Duran claims is his
goddaughter. In one image, the girl was wearing only panties, and the camera
was focused on her pubic area. Another image was a close-up of the girl’s gen-
italia. Duran admitted that he had taken the picture of his goddaughter, that
she was almost 12-years old at the time, and that he had transported the im-
ages from Mexico to Alabama sometime in February or March 2014.
      A few months later, Homeland Security agents executed a federal arrest
warrant at Duran’s home, where they spoke with his wife. She identified the
girl on the pictures as Duran’s goddaughter and said that the pictures were
taken when the girl was 9 and 11-years old, respectively. Duran’s wife told the
Homeland Security agents the girl was almost 12-years old, and that she lived
in Veracruz, Mexico. Later, Duran denied that he personally took the pictures.
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                                  No. 17-30428
Duran asserted that he accidentally switched phones with his goddaughter’s
father during one of Duran’s many trips to Mexico, and that the pictures be-
longed to the girl’s father. Duran stated that he had never taken pictures of
anyone.
        Months later, to assist in the investigation, agents in Mexico’s Attorney
General’s Office located and interviewed the girl depicted in the photos. The
girl told the Mexican officers that Duran was her uncle, and that he would
frequently bring her and her cousins chocolate bars and clothes, including un-
derwear. She stated that in March 2014, while Duran was visiting the girl’s
mother, Duran asked her and her 10-year old cousins to take off their clothes
so he could take a picture of them naked. The children initially refused, and
Duran responded by pointing a gun at his goddaughter. She told Duran she
would take off her clothes as long as he did not make her younger cousins take
off their clothes. The girl removed her clothes from the waist down.
        She further explained that Duran attempted to touch her vagina but one
of her cousins slapped his hand away. Then Duran raised her leg and took a
picture of her vagina with her grandfather’s cell phone. He then touched her
buttocks and told the girls not to tell anyone what had happened. She added
that, roughly a month later, Duran gave her a plasma television. He had prom-
ised one to her as a gift.
                                        B.
        Duran pleaded guilty to one count of transportation of child pornogra-
phy. His plea agreement did not include a waiver of any appellate rights. The
district court calculated the advisory Sentencing Guidelines range to be 188-
235 months of imprisonment. The district court sentenced Duran to 120
months’ imprisonment followed by five years of supervised release, well-below
the low end of the Guidelines range. Judgment was entered on November 2,
2015.
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                                 No. 17-30428
      Duran’s attorney filed a motion to withdraw from the case three days
later, on November 5, 2015. The district court granted the motion the next day.
No notice of appeal was filed. Duran’s conviction became final on November 16,
2015, fourteen days after entry of judgment. See United States v. Plascencia,
537 F.3d 385, 388 (5th Cir. 2008).
      What happened next is unclear, but on November 28, 2016, the district
court clerk filed Duran’s pro se § 2255 motion. Duran alleged that “[a] couple
days after sentencing, [he] called defense counsel from the facility at which he
was being held and instructed him to initiate a direct appeal” but later discov-
ered that no appeal was filed.
      Duran included a “Verification” on the last page that attests to the truth-
fulness of the assertions in the motion. The motion is dated November 8, 2016,
“at Granville county, North Carolina.” The envelope used to transmit the mo-
tion bears a Raleigh, North Carolina “Research Triangle” postmark dated No-
vember 21, 2016. The envelope bears a typewritten return address of the fed-
eral correctional center in Butner, North Carolina. There is no evidence that
shows the letter was processed by the prison mailing system. The district court
clerk office’s intake stamp indicates that the envelope arrived at the district
court on November 28, 2016.
      The district court issued an order explaining that it was unclear whether
Duran’s motion was timely under the one-year limitations period established
by § 2255(f)(1) and whether he could benefit from the prison mailbox rule af-
forded to inmates filing a motion from prison. The court also noted that it was
unclear when Duran discovered his counsel’s alleged failure to file a notice of
appeal, which could affect the timeliness issue under § 2255(f)(4). Thus, the
court ordered the Government to file a response addressing the timeliness is-
sues. The order gave Duran fifteen days to the date of the filing of the Govern-
ment’s response to reply.
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                                  No. 17-30428
      The Government filed its response on February 10, 2017, asserting that
Duran’s motion was untimely under § 2255(f)(1) because he failed to establish
whether he used the prison mailing system, and if he had, which day the mo-
tion was placed in the mail. The Government further contended that the mo-
tion was untimely under § 2255(f)(4), as Duran had not provided information
as to when he discovered his attorney’s alleged failure to file the notice of ap-
peal, or why he could not have discovered that information sooner.
      In addition, the Government argued that competent evidence defeated
Duran’s claim that his attorney failed to follow his request to file a notice of
appeal. In support, the Government attached a letter from his attorney’s files
advising Duran of his right to appeal. The letter also contained Duran’s written
acknowledgment that he did not wish to seek an appeal.
      On March 8, 2017, the magistrate judge issued a Report and Recommen-
dation (“R&R”) suggesting that Duran’s § 2255 motion be dismissed as un-
timely, or alternatively, on the merits. The magistrate judge found that Duran
failed to make a preliminary showing that he had used the prison mailing sys-
tem to trigger the prison mailbox rule. Additionally, Duran did not establish
that § 2255(f)(4) should provide a later start date for the statute of limitations.
The magistrate judge also provided an alternative basis for denying the mo-
tion, finding that his attorney’s letter showed that Duran expressly instructed
his attorney not to file an appeal.
      On March 13, 2017, the district court clerk filed Duran’s reply to the
Government’s response. The certificate of service on the reply is dated March
7, 2017, roughly ten days after the reply was due. The envelope used to mail
the reply has the stamp of the Butner federal correctional facility and indicates
that it was received for processing by the prison on March 7, 2017, the same
date on the certificate of service. In the reply, Duran contended that he placed
his § 2255 motion in the prison mail in his housing unit on November 8 or 9,
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                                  No. 17-30428
2016. Duran also claimed that he did not write the statement at the bottom of
his attorney’s letter that instructed the attorney not to file a notice of appeal.
Duran asserted that he has limited proficiency in English and that he did not
understand the advice his attorney gave him about foregoing an appeal, among
other things.
      The district court adopted the R&R on March 27, 2017. The court noted
that it considered Duran’s reply in reaching its ruling. On the same day, Du-
ran’s objections to the R&R were filed. He argued that his reply was timely
considering that he received the Government’s response almost a month after
it was filed in the district court. The date on the certificate of service for the
objections is March 23, 2017. Similar to his reply memorandum, the objections
bear the same processing date as the certificate of service and includes the
stamp of the Butner correctional facility. The district court denied Duran’s §
2255 motion without considering his objections and without holding an eviden-
tiary hearing.
      Duran had filed a notice of appeal and request for certificate of appeala-
bility on March 19, 2017. Similar to Duran’s reply and objections, the envelope
used to transmit the notice of appeal is stamped by the Butner correctional
facility and has a processing date that is one day after the date he signed the
notice of appeal. The request was denied.
      Later, this court allowed Duran to appeal and granted him a certificate
of appealability to consider (1) whether the district court erred by dismissing
Duran’s § 2255 motion as untimely, considering the prison mailbox rule, and
(2) whether the district court erred by concluding that Duran’s ineffective as-
sistance of counsel claim lacks merit.
                                         II.
      When considering the denial of a movant’s § 2255 motion, we review the
district court’s factual findings for clear error and legal conclusions de novo.
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                                  No. 17-30428
United States v. Cavitt, 550 F.3d 430, 435 (5th Cir. 2008). A § 2255 movant is
typically entitled to an evidentiary hearing “‘[u]nless the motion and the files
and records of the case conclusively show that the prisoner is entitled to no
relief’ on his underlying claims.” United States v. McDaniels, 907 F.3d 366, 370
(5th Cir. 2018) (alteration in original) (quoting § 2255(b)), cert. denied sub nom.
McDaniels v. United States, No. 18-9169, 2019 WL 2059624 (U.S. June 10,
2019) (Mem.). The denial of an evidentiary hearing is reviewed for an abuse of
discretion. Id.
      To obtain a reversal, a movant must provide “independent indicia of the
likely merit of [his] allegations, typically in the form of one or more affidavits
from reliable third parties.” Id. (alteration in original) (quotation marks omit-
ted). However, if the movant’s showing consists of conclusory allegations, or is
otherwise “inconsistent with the bulk of [his] conduct,” there is no need for an
evidentiary hearing. Id. (alteration in original) (citation & quotation marks
omitted).
      Because the denial of a hearing was based on the underlying issue of
timeliness, we must look beyond the decision to deny a hearing and consider
the conclusion that Duran’s motion was untimely, which we review de novo.
See United States v. Rodriguez, 858 F.3d 960, 961 (5th Cir. 2017).
                                       III.
      Duran submitted his § 2255 motion to raise an ineffective assistance of
counsel claim. However, because we conclude that the district court was correct
that his § 2255 motion is untimely, we pretermit discussion of the ineffective
assistance of counsel claim.
      Section 2255 has a one-year limitations period. 28 U.S.C. § 2255(f). In
this case, that period began to run on the date Duran’s judgment of conviction
became final. 28 U.S.C. § 2255(f)(1) (“A 1-year period of limitation shall apply
to a motion under this section. The limitation period shall run from . . . the
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                                     No. 17-30428
date on which the judgment of conviction becomes final.”) Therefore, to meet
the statute of limitations, Duran had to file his § 2255 motion by November 16,
2016.
        Under the prison mailbox rule, a pro se prisoner’s pleading is considered
filed when the document is placed in the prison mailing system. See Medley v.
Thaler, 660 F.3d 833, 835 (5th Cir. 2011); see also Rules Governing Section
2255 Proceedings in the United States District Courts 3(d). The rule applies
once it is established that the prisoner gave prison officials the pleading for
mailing, irrespective of whether the document reaches its intended recipient.
See Stoot v. Cain, 570 F.3d 669, 671–72 (5th Cir. 2009) (applying Louisiana’s
prison mailbox rule).
        While this court has never squarely addressed the issue, our case law
indicates that the burden is on the pro se prisoner to show when his pleading
was tendered to prison officials for delivery to the court. See Thompson v. Ras-
berry, 993 F.2d 513, 515–16 (5th Cir. 1993) (remanding case to allow appellant
the opportunity to prove that his objections were filed in a timely manner);
Logan v. Cent. Freight Lines, 858 F.2d 993, 994 (5th Cir. 1988) (remanding case
to allow appellant the opportunity to make the requisite showing regarding the
timeliness of his notice of appeal); Thompson v. Montgomery, 853 F.2d 287, 288
(5th Cir. 1988) (remanding case for reconsideration of timeliness issue while
noting that appellant’s assertion that he mailed his notice of appeal on time
was unsupported by the record). In United States v. Craun, a prisoner asserted
that he had placed a notice of appeal in a prison mailing system in a timely
manner. 51 F.3d 1043 (5th Cir. 1995) (unpublished). 1 He was given 30 days by
the district court to provide evidence—such as prison mail logs or affidavits—



        1Unpublished opinions issued before January 1, 1996, are binding precedent of this
court. 5th Cir. R. 47.5.3.
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to prove his assertion. Id. The prisoner responded by asserting that the evi-
dence did not exist because the prison did not provide it. Id. He added that he
could not provide an affidavit because the prison policy forbade inmates from
obtaining affidavits from other inmates. Id. The district court found that, ab-
sent evidence corroborating the date the prisoner delivered his notice of appeal
to prison officials, his unsworn statement was insufficient to reinstate his ap-
peal. Id. This court noted that the prisoner was given time to provide proof for
his assertions and affirmed the district court. Id. The district court’s decision
was not erroneous whether it was a determination regarding the prisoner’s
credibility or a conclusion that he failed to supply evidence of a timely filing.
Id.
       Our case law indicates that a movant in a § 2255 proceeding has the
burden of demonstrating that his filings are timely. Duran did not meet his
burden.
       Duran did not file his sworn objections until March 23, 2017. Duran ex-
plained that he did not receive the magistrate judge’s R&R until March 20,
2017. He also conceded that his reply to the Government’s response was un-
timely but asserted that he did not receive the response until March 3, 2017.
       The district court ruled on Duran’s § 2255 motion the same day his ob-
jections to the R&R were filed. A district court’s failure to consider timely ob-
jections before adopting a magistrate judge’s R&R is a reversible error only
when a movant suffers prejudice. Kreimerman v. Casa Veerkamp, S.A. de C.V.,
22 F.3d 634, 646–47 (5th Cir. 1994). The Government contends that Duran did
not suffer prejudice because his objections only provided an explanation re-
garding the timeliness of his reply.
       Duran has not suffered prejudice. His § 2255 motion should have been
filed by November 16, 2016. The postmark on the envelope containing the mo-
tion was dated November 21, 2016, five days after the end of the limitations
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period. In his reply and objections, Duran alleged at least two substantial de-
lays in the processing and receipt of his mail at the prison. First, the postmark
on the Government’s response brief is February 13, 2017, but Duran did not
receive the brief until March 3, 2017. Second, the postmark on the magistrate
judge’s R&R was March 8, 2017, but Duran did not receive the R&R until
March 20, 2017.
        What is missing from the record is evidence indicating that processing
delays frequently occurred when he attempted to mail documents from the
prison. Duran alleges only one delay in the processing of mail sent by him.
Duran asserts that he placed his § 2255 motion in a prison housing unit mail-
box on November 8 or 9, although the envelope had a November 21, 2016, post-
mark. Duran did not include a certification of when he deposited the motion in
the prison mailing system. He did not provide a copy of a request to send legal
mail or a request for the relevant prison mail logs. Notably, all of Duran’s other
filings related to this motion were consistent in that they include sufficient
indicia of the date each respective filing was placed in the prison mailing sys-
tem. In each instance, the envelope used to mail the filing has the stamp of the
Butner federal correctional facility and provides a date that the filing was re-
ceived for processing. In each instance, the processing date either matches or
is within one day of the date Duran signed the filing. Such indicia are absent
from his § 2255 motion. Duran cannot benefit from the prison mailbox rule.
        The district court gave Duran an opportunity to reply to the Govern-
ment’s response and later considered his reply. That reply left the district court
to consider only Duran’s bare assertion that he placed his motion in a housing
unit mailbox against the fact that his motion was postmarked five days after
the one-year filing deadline. A district court does not have an obligation to in-
form pro se litigants on the kinds of evidence they may submit. Craun, 51 F.3d
1043.
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       In the absence of an attempt by Duran to provide evidence to support his
assertion, he suffered no prejudice from the district court’s conclusion that his
motion is time-barred under § 2255(f)(1). See id. In addition, Duran suffered
no prejudice from the conclusion that he could not use § 2255(f)(4) because Du-
ran never indicated when he discovered that this attorney did not file a notice
of appeal. See 28 U.S.C. § 2255(f)(4) (“The limitation period shall run from . . .
the date on which the facts supporting the claim or claims presented could have
been discovered through the exercise of due diligence.”).
       The district court was correct. Duran’s motion is untimely. Regarding
the lack of an evidentiary hearing, “[t]he district court could not have abused
its discretion by failing to consider facts not presented.” Rodriguez, 858 F.3d at
963.
       AFFIRMED.




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