     Case: 17-30008      Document: 00514890783         Page: 1    Date Filed: 03/27/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                        United States Court of Appeals
                                                                                 Fifth Circuit


                                      No. 17-30008
                                                                               FILED
                                                                          March 27, 2019
                                                                          Lyle W. Cayce
FRANCISCO FIGUEREDO-QUINTERO,                                                  Clerk

              Petitioner - Appellant

v.

SANDY MCCAIN, WARDEN, RAYMOND LABORDE CORRECTIONAL
CENTER,

              Respondent - Appellee




                   Appeal from the United States District Court
                      for the Western District of Louisiana
                              USDC No. 2:16-CV-85


Before HIGGINBOTHAM, GRAVES, and WILLETT, Circuit Judges.
PER CURIAM:*
       Petitioner-Appellant Francisco Figueredo-Quintero, Louisiana prisoner
# 577352, was convicted in a bench trial of oral sexual battery and sexual bat-
tery. He was sentenced to concurrent 20-year terms of imprisonment.
Figueredo-Quintero subsequently filed a 28 U.S.C. § 2254 petition pro se, chal-
lenging those convictions. The district court denied his petition. Later, this



       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                 No. 17-30008
court granted a certificate of appealability (COA) to address issues related to
Figueredo-Quintero’s attempt to amend his § 2254 petition. Although the issue
was not raised, we consider whether the district court abused its discretion in
dismissing Figueredo-Quintero’s § 2254 petition and implicitly denying his at-
tempt to amend the petition under Federal Rule of Civil Procedure 15(a). We
conclude that the district court did not abuse its discretion because Figueredo-
Quintero’s proposed amendment to his § 2254 petition would have been futile.
Therefore, the judgment of the district court is AFFIRMED.
                                       I.
      Figueredo-Quintero was convicted in a bench trial of oral sexual battery
and sexual battery. See State v. F.F.Q., 73 So.3d 536, 537 (La. Ct. App. 2011).
He moved for a new trial based on newly discovered evidence of paycheck stubs
which showed that Figueredo-Quintero had been working on certain dates.
Figueredo-Quintero argued that the evidence impeached the victim’s testi-
mony that she had been with him on the dates in question. The motion was
denied.
      A habitual offender, Figueredo-Quintero was sentenced to concurrent 20-
year terms of imprisonment on oral sexual battery and sexual battery convic-
tions. In addition, pursuant to a guilty plea, he was convicted of cruelty to ju-
veniles and received a consecutive 10-year sentence on that conviction.
Figueredo-Quintero appealed, arguing that the evidence was insufficient to
support his convictions and that there was a defective indictment. The state
appellate court affirmed Figueredo-Quintero’s convictions, and the Louisiana
Supreme Court (LSC) denied his writ application on March 9, 2012. State v.
Figueredo-Quintero, 84 So.3d 552 (La. 2012).
                                       A.
      The Magistrate Judge determined that Figueredo-Quintero mailed an
application for state post-conviction relief on or about January 8, 2013. For
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reasons that are unclear, the application was never received or filed.
Figueredo-Quintero subsequently filed a state post-conviction application on
or about August 27, 2013.
      Figueredo-Quintero presented four claims in his post-conviction applica-
tion: (1) insufficiency of the evidence, (2) abuse of discretion in denying his mo-
tion for a directed verdict, (3) abuse of discretion in denying his motion for a
new trial based on newly discovered evidence, and (4) ineffective assistance of
trial counsel for failing to obtain the paycheck stubs prior to trial. The state
trial court denied relief on all the claims, and determined that the ineffective
assistance of counsel claim lacked merit. The state appellate court also denied
the writ application. Later, the LSC denied Figueredo-Quintero’s writ applica-
tion by order dated October 23, 2015.
                                        B.
      Figueredo-Quintero filed a second application for post-conviction relief
in state court on or about November 3, 2015. In the second application, he pre-
sented four new claims: (1) he was denied effective assistance of counsel at
trial, on direct appeal, and in post-conviction proceedings; (2) the district court
made a finding that he was innocent, and therefore the verdict was contrary to
evidence; (3) the prosecution improperly withheld evidence of the victim’s past
sexual history; and (4) there was sufficient evidence to support a gateway claim
and default should be excused. Figueredo-Quintero’s ineffective assistance of
trial counsel claim was based on his counsel’s alleged failures to (a) obtain the
victim’s medical history, (b) impeach the victim based on her alleged sexual
promiscuity, and (3) obtain an expert witness to address the issue of past sex-
ual conduct. Concluding that all the claims were untimely because they were
filed more than two years after his conviction became final, the state trial court
denied Figueredo-Quintero relief by order dated November 25, 2015. See La.


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Code Crim. P. art. 930.8(A) (stating that no application for post-conviction re-
lief shall be considered if it is filed more than two years after the judgment of
conviction and sentence has become final, unless an exception applies). There
is no indication that Figueredo-Quintero further pursued those claims in state
court.
                                         C.
         On December 29, 2015, Figueredo-Quintero signed and filed a § 2254 pe-
tition. His petition contained the four claims that he had previously raised in
his second post-conviction relief application. The Magistrate Judge indicated
she could not determine whether the petition should survive preliminary re-
view. On May 11, 2016, the Magistrate Judge ordered Figueredo-Quintero to
amend the § 2254 petition within forty (40) days of the order and provide the
court with proof or documentation to establish that he presented viable claims.
         In response, Figueredo-Quintero submitted two filings. The first filing
provided documents and information, but the upshot of the filing was that
Figueredo-Quintero wanted to amend his § 2254 petition to raise five issues
set forth in an attached exhibit (marked “Exhibit A”). Four of the five issues
listed were the same claims he raised in his first state post-conviction applica-
tion, and the fifth issue was his contention that the state court erred in denying
relief pursuant to Louisiana Code of Criminal Procedure art. 930.3.
         Figueredo-Quintero attached a § 2254 petition to the first filing on which
the word “Amendment” was handwritten. The petition referred the reader to
“Exhibit A” for a statement of the claims presented and the supporting facts.
Figueredo-Quintero submitted several other documents with the § 2254 peti-
tion, including a copy of the writ application he had submitted to the LSC
(“LSC writ application”) with his first state post-conviction application. The




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                                  No. 17-30008
LSC writ application included the same five claims he presented in the pro-
posed amendment to the § 2254 petition. The second filing in response to the
Magistrate Judge’s order was merely duplicative of the first filing.
        The Magistrate Judge determined that Figueredo-Quintero had com-
plied with her prior order, ordered that the respondent be served with a copy
of the original § 2254 petition, and did not address Figueredo-Quintero’s at-
tempt to amend his petition. The respondent answered the § 2254 petition,
arguing that Figueredo-Quintero’s claims were time-barred and that he failed
to exhaust the claims that were never brought before the LSC. Figueredo-
Quintero replied to the answer, noting in part that the LSC had denied his writ
application pertaining to the claims raised in his first post-conviction applica-
tion.
        The Magistrate Judge issued a report and recommendation. She deter-
mined that, while Figueredo-Quintero’s § 2254 petition had not been filed
within the one-year limitations period, he was entitled to equitable tolling due
to an “intervening event” that prevented his state post-conviction application
from being received after it was sent in January 2013. Therefore, his § 2254
petition was timely filed. The Magistrate Judge determined that Figueredo-
Quintero was renewing the claims raised in his second post-conviction relief
application. The Magistrate Judge also concluded that he had not exhausted
his claims for relief—they were procedurally defaulted—and that he had not
established any basis to excuse the procedural default. The report and recom-
mendation did not address the request to amend his § 2254 petition or the
claims he raised in his first state post-conviction relief application.
        Figueredo-Quintero objected to the report and recommendation. His ob-
jection seemingly attempted to address the merits of his claim of innocence.
The respondent argued that the merits of Figueredo-Quintero’s claims should
not be addressed because he did not dispute that his claims were defaulted, he
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                                  No. 17-30008
had not shown cause for the procedural default and actual prejudice, nor had
he established a gateway claim of actual innocence. Figueredo-Quintero filed
a reply that attempted to address the claim of actual innocence, procedural
default, and ineffective assistance of counsel.
      Adopting the reasons stated in the Magistrate Judge’s report and recom-
mendation, the district court denied Figueredo-Quintero’s § 2254 petition and
dismissed it with prejudice. Figueredo-Quintero filed a timely notice of appeal.
The district court denied a certificate of appealability (COA), and his motion to
proceed in forma pauperis (IFP) on appeal was denied.
      Later, he moved for a COA and to proceed IFP in this court. Figueredo-
Quintero’s IFP motion was granted. This court denied COA with respect to the
issues Figueredo-Quintero raised, but granted COA to consider the unraised
issue of whether the district court abused its discretion in implicitly denying
Figueredo-Quintero’s attempt to amend his petition.
                                       II.
      The district court implicitly denied Figueredo-Quintero’s motion to
amend by denying the § 2254 petition without addressing the claims he sought
to add in his proposed amendment. See Soffar v. Dretke, 368 F.3d 441, 470-71
(5th Cir. 2004) (“[A]ll claims not disposed of explicitly in a judgment are con-
sidered to have been implicitly rejected by the district court.”), amended on
other grounds, 391 F.3d 703 (5th Cir. 2004). Even though he did not raise the
issue of the implicit denial of the motion to amend in his application for COA,
this court has the discretion to evaluate unraised issues regarding the district
court’s denial of leave to amend a pro se petitioner’s habeas application. See
United States v. Gonzalez, 592 F.3d 675, 678 (5th Cir. 2009). Therefore, we
proceed to address the propriety of the district court’s decision.
      In response to this court’s grant of COA, Figueredo-Quintero now con-
tends that the district court abused its discretion in denying him leave to
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                                 No. 17-30008
amend his petition under Federal Rule of Civil Procedure 15(a). Further, he
contends that his new claims are timely and have been exhausted in state
court. Finally, he asserts that any procedural default regarding his claims
should be excused because the default was caused by his counsel on direct ap-
peal. The respondent contends that the district court did not abuse its discre-
tion because Figueredo-Quintero did not have a right to amend under Rule
15(a), and the claims he sought to raise via amendment were untimely.
      Rule 15 of the Federal Rules of Civil Procedure governs amendments of
§ 2254 applications. See 28 U.S.C. § 2242; Rule 12, Rules Governing Section
2254 Cases; see also Carter v. Procunier, 755 F.2d 1126, 1129 (5th Cir. 1985)
(applying Rule 15(a) in a § 2254 proceeding). We review the district court’s
denial of a motion for leave to amend for an abuse of discretion. Edionwe v.
Bailey, 860 F.3d 287, 291 (5th Cir. 2017), cert. denied, 138 S. Ct. 687 (2018).
      Relevant to the issues before this court, an amendment to a pleading
may relate “back to the date of the original pleading” if “the amendment asserts
a claim or defense that arose out of the conduct, transaction, or occurrence set
out—or attempted to be set out—in the original pleading.” Fed. R. Civ. P.
15(c)(1)(B). Claims added in an amended federal habeas petition do not relate
back to the original petition merely because the claims arise out of the same
trial and conviction. Mayle v. Felix, 545 U.S. 644, 649-50 (2005); Gonzalez, 592
F.3d at 679. Additionally, “[a]n amended habeas petition . . . does not relate
back . . . when it asserts a new ground for relief supported by facts that differ
in both time and type from those the original pleading set forth.” Mayle, 545
U.S. at 650.
                                      III.
      Given the one-year limitations period for a state prisoner to file claims
in a § 2254 petition (see 28 U.S.C. § 2244(d)(1)), the claims Figueredo-Quintero
sought to raise are time-barred if they do not relate back to the original § 2254
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petition. Such a conclusion renders the claims in the proposed amendment
futile. See Gonzalez, 592 F.3d at 681 (concluding a time-barred amendment
that did not relate back to the original claims would have been futile).
      A straightforward comparison of the claims raised in the original § 2254
petition with the additional claims raised in the proposed amendment to the §
2254 petition shows that the added claims are related to facts that differ sub-
stantially, in time and type, from the facts supporting the claims in the original
§ 2254 motion. None of the claims in the proposed amendment overlap with
the claims in the original § 2254 petition. Consequently, none of the added
claims relate back to that petition.
      Because the claims in the amendment do not relate back to the original
§ 2254 petition, they are time-barred. Figueredo-Quintero’s conviction became
final on June 8, 2012, the date his 90-day period for seeking review by the
United States Supreme Court expired. See Palacios v. Stephens, 723 F.3d 600,
604 (5th Cir. 2013). Construing Figueredo-Quintero’s pro se filings liberally, he
allowed 214 days to elapse before seemingly mailing his first state post-convic-
tion application on January 8, 2013. The one-year limitations period was tolled
with respect to the added claims while the first state post-conviction applica-
tion was pending. See 28 U.S.C. § 2244(d)(2). The limitations period began to
run again when the LSC denied the first application on October 23, 2015. The
untimely second state post-conviction application had no tolling effect. See
Wardlaw v. Cain, 541 F.3d 275, 278-79 (5th Cir. 2008) (concluding a state post-
conviction application rejected as untimely under state law did not toll the
statute of limitations under § 2244(d)(2)); La. Code Crim. P. art. 930.8(A). An
additional 205 days elapsed between the LSC’s denial of the first post-convic-
tion application and the filing of the proposed amendment to his habeas peti-
tion on May 16, 2016. Therefore, Figueredo-Quintero attempted to add claims


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to his § 2254 petition 419 days after his state court conviction became final.
The attempt was made well after the one-year limitations period expired.
       Moreover, because the claims Figueredo-Quintero sought to add had
been either previously raised in his state post-conviction application or related
to the adjudication of the claims he raised in his state post-conviction proceed-
ings, he could not have established a basis for equitable tolling regarding the
claims in the proposed amendment. See Palacios, 723 F.3d at 604 (citing Man-
ning v. Epps, 688 F.3d 177, 183 (5th Cir. 2012)) (explaining that equitable toll-
ing is granted where a petitioner can establish that he pursued habeas relief
with “reasonable diligence,” and some “extraordinary circumstances” pre-
vented timely filing).
       Figueredo-Quintero’s amendment was untimely, rendering the amend-
ment futile. The district court’s implicit denial of his attempt to amend his
original § 2254 petition was not an abuse of discretion. 1 The judgement of the
district court is therefore AFFIRMED.




       1  We need not address whether amendment was proper as a matter of course, or with
the opposing party’s written consent or leave of court, because “a district court may deny
motions to amend, even when such amendment would be ‘as a matter of course,’ when the
amendment would be futile.” Gonzalez, 592 F.3d at 681; see also Wright v. Allstate Ins. Co.,
415 F.3d 384, 391 (5th Cir. 2005) (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)) (includ-
ing futility among the permissible bases for denial of a motion to amend).
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