                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 11a0167n.06

                                           No. 09-1408
                                                                                          FILED
                          UNITED STATES COURT OF APPEALS                              Mar 22, 2011
                               FOR THE SIXTH CIRCUIT                            LEONARD GREEN, Clerk


JOAQUIN TORRES,                                          )
                                                         )         ON APPEAL FROM THE
       Petitioner-Appellant,                             )         UNITED STATES DISTRICT
                                                         )         COURT FOR THE WESTERN
v.                                                       )         DISTRICT OF MICHIGAN
                                                         )
SUSAN DAVIS, Warden,                                     )                           OPINION
                                                         )
       Respondent-Appellee.                              )




BEFORE:        COLE, GIBBONS, and ROGERS, Circuit Judges.

       COLE, Circuit Judge. Petitioner-Appellant Joaquin Torres appeals the district court’s

dismissal of his petition for a writ of habeas corpus. Torres claims the district court erred when it

concluded that Torres was not entitled to equitable tolling and it dismissed sua sponte his petition

as time-barred. For the reasons stated below, we AFFIRM.

                                       I. BACKGROUND

       On September 7, 2004, Torres pleaded guilty to delivery of 1,000 grams or more of cocaine

and possession with intent to deliver fifty grams or more of cocaine, in violation of Michigan state

law, and was sentenced to concurrent terms of 15 to 30 years and 7 to 20 years, respectively.

       Torres’s conviction became final on September 7, 2005, and this date also started the clock

running for the Antiterrorism and Effective Death Penalty Act (“AEDPA”) one-year statute of

limitations to file a federal habeas petition. See 28 U.S.C. § 2244(d)(1)(A). Torres did not appeal
No. 09-1408
Torres v. Davis

his conviction until August 6, 2007, when he filed a motion for relief from judgment in the

Muskegon County Circuit Court. Proceeding pro se, Torres’s motion set forth three grounds for

relief and also requested an evidentiary hearing. The court denied Torres’s motion on all grounds

on August 15, 2007. Torres subsequently sought leave to appeal in the Michigan Supreme Court,

which denied his request on November 25, 2008.

       On January 12, 2009, Torres filed a petition for a writ of habeas corpus in the United States

District Court for the Western District of Michigan under 28 U.S.C. § 2254. A magistrate judge

issued a report and recommendation (“R & R”) to deny his petition as time-barred, concluding that

Torres’s petition did not set forth any grounds warranting equitable tolling of the AEDPA one-year

statute of limitations. Torres filed objections to the R & R, claiming that his difficulty with the

English language warranted the application of equitable tolling.

       The district court conducted a de novo review of Torres’s petition and considered Torres’s

reasons for equitable tolling. After determining that Torres was not entitled to equitable tolling, the

district court dismissed the petition as time-barred.

       On September 17, 2009, this Court granted Torres a certificate of appealability based on his

timely notice of appeal filed in the district court. See Fed. R. App. P. 22(b).

                                          II. ANALYSIS

       A.      Legal Framework and Standard of Review

       AEDPA mandates that habeas petitions brought by prisoners challenging state-court

convictions must be filed within one year from “the date on which the judgment became final by the

conclusion of direct review or the expiration of the time for seeking such review.” 28 U.S.C. §

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2244(d)(1)(A). This requirement is not jurisdictional; it is an affirmative defense that the state can

raise in its answer to a habeas petition. Day v. McDonough, 547 U.S. 198, 205, 208 (2006).

However, because of the considerations that motivated AEDPA, district courts, while under no

obligation to do so, are permitted to raise the issue sua sponte. Id. at 208-09. Furthermore, the

Supreme Court recently confirmed this Court’s position that the AEDPA statute of limitations is

“subject to equitable tolling in appropriate cases.” Holland v. Florida, --- U.S. --- ,130 S. Ct. 2549,

2560 (2010).

       “[T]he doctrine of equitable tolling allows federal courts to toll a statute of limitations when

‘a litigant’s failure to meet a legally-mandated deadline unavoidably arose from circumstances

beyond that litigant’s control.’” Keenan v. Bagley, 400 F.3d 417, 421 (6th Cir. 2005) (quoting

Graham-Humphreys v. Memphis Brooks Museum of Art, Inc., 209 F.3d 552, 560-61 (6th Cir. 2000)).

“The party seeking equitable tolling bears the burden of proving he is entitled to it.” Robertson v.

Simpson, 624 F.3d 781, 784 (6th Cir. 2010). Equitable tolling should be invoked “sparingly,” and

a petitioner seeking equitable tolling must show both that he diligently pursued his rights and that

some extraordinary circumstance prevented timely filing. Id. (citing Holland, 130 S. Ct. at 2562).

       Where the facts are undisputed, we review a district court’s decision on equitable tolling de

novo. Solomon v. United States, 467 F.3d 928, 932 (6th Cir. 2006).

       B.      Discussion

       Torres agrees that if equitable tolling does not apply, his petition was untimely. Torres’s time

period for filing a federal habeas petition expired on September 7, 2006 and he did not file his

petition in the district court until January 12, 2009. However, Torres contends that he does not need

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to show that he is entitled to equitable tolling at this stage of the proceedings. He claims that his

petition was dismissed under Rule 4’s screening procedures and thus it should not have been

dismissed because he presented a plausible claim for equitable tolling that warrants further

proceedings. We find this argument unavailing.

       Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts

provides in relevant part:

       If it plainly appears from the face of the petition and any attached exhibits that the
       petitioner is not entitled to relief in the district court, the judge must dismiss the
       petition and direct the clerk to notify the petitioner. If the petition is not dismissed,
       the judge must order the respondent to file an answer, motion, or other response
       within a fixed time, or to take other action the judge may order.

Rule 4, Rules Governing § 2254 Cases. Torres is correct that the magistrate judge first questioned

the timeliness of Torres’s petition under Rule 4. The magistrate judge concluded that Torres’s

petition was untimely, but then informed Torres in the R & R that Torres’s opportunity to file

objections constituted his notice and opportunity to be heard before the district court on the issue of

equitable tolling. Torres concedes that he was given notice and an opportunity to be heard on the

timeliness of his petition as required by Day v. McDonough, 547 U.S. at 210. Torres responded to

the magistrate judge’s R & R, arguing that his difficulty with the English language justified equitable

tolling. The district court considered Torres’s claim for equitable tolling de novo and concluded the

circumstances Torres alleged did not justify equitable tolling. That the magistrate judge’s initial

review of Torres’s petition was conducted under Rule 4 is thus irrelevant to the district court’s

ultimate dismissal because Torres was given an opportunity to present his argument for equitable

tolling and the district court fully addressed his claim on the merits. Torres was not required to

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Torres v. Davis

prove the propriety of equitable tolling in his initial petition to the district court. However, once the

district court raised the issue sua sponte and gave Torres notice and an opportunity to be heard,

Torres bore the burden of proving equitable tolling was warranted. See Robertson, 624 F.3d at 784.

        Torres has not carried his burden in proving equitable tolling is justified. Torres claimed

before the district court that the delay in filing his petition was due to his difficulty with the English

language and that the facility where he was held for the past five years did not provide assistance for

non-English speakers. He further explained that he requested transfers to a facility with such

assistance, but that all his requests were denied. When a petitioner’s alleged lack of English

proficiency “has not prevented the petitioner from accessing the courts, the lack of proficiency is

insufficient to justify an equitable tolling of the statute of limitations.” Cobas v. Burgess, 306 F.3d

441, 444 (6th Cir. 2002). “An inability to speak, write and/or understand English, in and of itself,

does not automatically give a petitioner reasonable cause for failing to know about the legal

requirements for filing his claims.” Id.

        Torres admits that if he demonstrated English proficiency sufficient to access the courts

during the AEDPA statute of limitations time period, this would preclude equitable tolling. But he

contends that the record is silent as to any indication that he had such ability, because he did not

access the courts—either state or federal—until August 6, 2007, when he filed a motion for post-

conviction relief in state court, almost a full year after his time limit for filing a federal habeas

petition had expired. Nonetheless, Torres has not established that he could not timely file his habeas

petition. Torres’s pro se filings in the Michigan state courts set forth detailed and lengthy legal

arguments. See Petition, Dist. Ct. Docket No. 1, Appendix B. Although Torres claims an inability

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to access the courts until after the AEDPA statute of limitations had run, he does not explain how

that inability transformed into the detailed and lengthy legal arguments presented in the Michigan

state court system. Torres cannot succeed in demonstrating extraordinary circumstances without

providing some justification for the discrepancy between his ability at these two points in time. Cf.

Cobas, 306 F.3d at 444 (rejecting petitioner’s claim that language difficulties prohibited his timely

filing where he wrote a detailed letter to his attorney and filed two post-conviction motions in state

court). Therefore, Torres has failed to meet his burden of justifying equitable tolling. See

Robertson, 624 F.3d at 784.

        Additionally, Torres requests that we remand his case for further proceedings in the district

court. However, at oral argument Torres stated that he did not think an evidentiary hearing is

necessary. That said, no purpose would be served by remanding the case for further proceedings

given that Torres does not now allege any additional facts that he intends to submit on remand. As

we have noted, Torres was given sufficient notice and an opportunity to present any and all

arguments for equitable tolling before the district court dismissed his petition as time-barred. See

Day, 547 U.S. at 209. Because he has failed to carry his burden, or even allege that he can, the

district court did not err in dismissing his petition.

                                        III. CONCLUSION

        For the above stated reasons, we AFFIRM the district court’s dismissal of Torres’s petition.




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