     Case: 09-10281     Document: 00511007523          Page: 1    Date Filed: 01/19/2010




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

                                                  FILED
                                                                          January 19, 2010
                                     No. 09-10281
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

RAUL SAENZ-LOPEZ,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Northern District of Texas
                              USDC No. 3:08-CV-1601
                              USDC No. 3:02-CR-285-1


Before KING, STEWART, and HAYNES, Circuit Judges.
PER CURIAM:*
        Raul Saenz-Lopez (Saenz), federal prisoner # 23080-077, moves this court
for a certificate of appealability (COA) to appeal the district court’s dismissal as
untimely of his 28 U.S.C. § 2255 motion, which challenged his conviction for
illegal reentry following deportation. Saenz contends that his § 2255 motion,
filed five years after his conviction became final, was in fact timely because he
was entitled to tolling for the time that he was acting under a mistaken belief



        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-10281

that his attorney had filed a § 2255 motion on his behalf. He also asserts that
he is entitled to tolling for the time during which the facility at which he was
incarcerated lacked a law library and the lengthy periods during which the
prison was on lockdowns, during which times prisoners were prevented access
to legal materials.
       To obtain a COA, Saenz must make a substantial showing of the denial of
a constitutional right. See 28 U.S.C. § 2253(c)(2); Miller-El v. Cockrell, 537 U.S.
322, 336 (2003). “A petitioner satisfies this standard by demonstrating that
jurists of reason could disagree with the district court’s resolution of his
constitutional claims or that jurists could conclude the issues presented are
adequate to deserve encouragement to proceed further.” Miller-El, 537 U.S. at
327.   When the district court has denied relief on procedural grounds, a
petitioner must show “that jurists of reason would find it debatable whether the
[motion] states a valid claim of the denial of a constitutional right and that
jurists of reason would find it debatable whether the district court was correct
in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).
       Saenz has shown that reasonable jurists could find it debatable that the
district court erred in its procedural ruling. See Slack, 529 U.S. at 484. As for
the time prior to February 2007, Saenz makes various allegations about
misrepresentations by counsel. If a petitioner reasonably relies on affirmative
misrepresentations by counsel, he may be entitled to equitable tolling. See
United States v. Wynn, 292 F.3d 226, 230 (5th Cir. 2002). Saenz has provided
assertions regarding counsel’s situation and conduct, but he has not provided
specific dates or supporting evidence as to when counsel assured him that he
had filed a § 2255 motion on Saenz’s behalf, when counsel became incapacitated
for health reasons, when counsel recovered from his illness, the general time
frames of Saenz’s attempts to obtain information about the purportedly pending
§ 2255 motion, and the date upon which Saenz finally learned that no motion
had in fact been filed. Further factual development is necessary to determine

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                                 No. 09-10281

whether Saenz’s reliance on counsel’s actions and inaction entitles him to
equitable tolling.
      With respect to the time after February 2007, Saenz alleges that the
absence of a law library, or access to any such library due to lockdowns, created
an impediment to his filing a § 2255 motion. Such an allegation, if proven, might
support tolling under § 2255(f)(2). See Egerton v. Cockrell, 334 F.3d 433, 438-39
(5th Cir. 2003). The record includes competing affidavits from the Government
and declarations under 28 U.S.C. § 1746 from Saenz regarding the date upon
which a law library became available at the Reeves County Detention Center III,
the number and duration of lockdowns at that facility between March 2007 and
September 2008, and the access prisoners had to legal materials during those
lockdowns.
      Thus, “the motions, files, and records of the case [do not] conclusively show
that [Saenz] is entitled to no relief.” United States v. Bartholomew, 974 F.2d 39,
41 (5th Cir. 1992); § 2255(b). Additionally, based on the record as it currently
stands, reasonable jurists could debate whether Saenz has raised a valid
constitutional claim. See Houser v. Dretke, 395 F.3d 560, 562 (5th Cir. 2004).
      Therefore, a COA is granted on the issue whether Saenz is entitled to
sufficient equitable tolling and tolling under § 2255(f)(2). The district court’s
judgment is vacated and the case is remanded for further proceedings in relation
to that issue.
      COA GRANTED; VACATED AND REMANDED.




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