     Case: 13-40390      Document: 00512964002         Page: 1    Date Filed: 03/10/2015




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

                                    No. 13-40390
                                                                                     Fifth Circuit

                                                                                   FILED
                                  Summary Calendar                           March 10, 2015
                                                                              Lyle W. Cayce
UNITED STATES OF AMERICA,                                                          Clerk


                                                 Plaintiff-Appellee

v.

LIZANDRO MARTINEZ,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 7:10-CV-492
                             USDC No. 7:04-CR-990-1


Before HIGGINBOTHAM, JONES, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Lizandro Martinez, federal prisoner # 46276-179, appeals the denial of
his 28 U.S.C. § 2255 motion, which he filed to attack his sentence pursuant to
his convictions of conspiring to import more than 1,000 kilograms of marijuana
and conspiring to launder monetary instruments. The district court, adopting
a report issued by the magistrate judge (MJ) following an evidentiary hearing,



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 13-40390

determined that the § 2255 motion was time barred and that Martinez was not
entitled to equitable tolling.
      On account of Martinez’s failure to object to the MJ’s report, our review
is for plain error. See Douglass v. United Services Auto. Ass’n, 79 F.3d 1415,
1425 (5th Cir. 1996) (en banc). In order to demonstrate plain error, Martinez
must show a forfeited error that is clear or obvious and that affects his
substantial rights. See Puckett v. United States, 556 U.S. 129, 135 (2009). If
he makes such a showing, this court has the discretion to correct the error but
only if it seriously affects the fairness, integrity, or public reputation of judicial
proceedings. See id.
      The facts are well known to the parties and therefore we summarize
them briefly. Martinez’s direct appeal was dismissed for want of prosecution
on August 16, 2007, after his retained counsel, Larry Warner, failed to timely
make arrangements for the payment of transcripts.              Martinez, who was
incarcerated, relied on his sister to communicate with Warner about the
appeal. Warner did not reveal that the appeal had been dismissed, but rather
indicated that the appeal was still pending. Sometime in March or April of
2009, after losing contact with Warner, and under prodding from Martinez to
check on the status of the appeal, Martinez’s sister contacted the courts and
learned that the appeal had been dismissed; she communicated that fact to
Martinez. On or about April 30, 2009, Martinez filed a pro se motion to
reinstate the appeal, which was denied. He then filed a grievance against
Warner, which resulted in Warner being reprimanded by the bar association.
On March 1, 2010, Warner filed a § 2255 motion on Martinez’s behalf.
Martinez later filed a supplement to the § 2255 motion in which he claimed
that he was denied the right to a direct appeal and that Warner had been
ineffective.



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                                 No. 13-40390

      The MJ determined that the § 2255 motion was untimely because
Martinez could have discovered, through the exercise of due diligence, the facts
supporting his claims prior to March 2009 regardless of any misrepresentation
or deceit by Warner. In this regard, the MJ determined that Martinez had
developed concerns about Warner and the appeal before March 2009, yet made
no attempt to contact the courts. The MJ also determined that Martinez was
not entitled to equitable tolling as he had not been reasonably diligent either
before or after he learned that his direct appeal had been dismissed.
      In his brief, Martinez emphasizes Warner’s misrepresentations and
Martinez’s own lack of knowledge regarding the status of his appeal. He also
discusses the actions he took after learning of the dismissal of the appeal.
      A one-year period of limitation applies to § 2255 motions. § 2255(f). The
limitations period begins to run on the latest of several dates, including the
date when the facts supporting the claim or claims presented could have been
discovered through the exercise of due diligence. § 2255(f)(4). The one-year
limitations period is not jurisdictional and may be equitably tolled. Holland v.
Florida, 560 U.S. 631, 645-48 (2010). A movant is entitled to equitable tolling
“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 (internal quotation marks and citation omitted).
      Martinez fails to show that the district court clearly or obviously erred
in determining that, had he been duly diligent, he could have discovered the
facts supporting his claims more than one year prior to the filing of his § 2255
petition; he thus fails to show plain error in the conclusion that his § 2255
motion was untimely. See Puckett, 556 U.S. at 135. As to equitable tolling,
Warner likewise fails to show clear or obvious error in the district court’s
determination that he failed to exercise the required reasonable diligence. See



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id.; Holland, 560 U.S. at 563. In view of the foregoing, the judgment of the
district court is affirmed.
      Because Martinez is not entitled to counsel, and there is no indication
that the interests of justice require counsel’s appointment, Martinez’s motion
for the appointment of counsel is denied. See Pennsylvania v. Finley, 481 U.S.
551, 555 (1987); Schwander v. Blackburn, 750 F.2d 494, 502 (5th Cir. 1985).
      AFFIRMED; MOTION DENIED.




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