United States v. Valles

Case: 19-50343 Document: 00516614756 Page: 1 Date Filed: 01/18/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
January 18, 2023
No. 19-50343 Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Elizabeth Valles,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:19-CV-58
USDC No. 3:16-CR-960-1
Before Richman, Chief Judge, and Jolly and Dennis, Circuit Judges.
E. Grady Jolly, Circuit Judge:*
In August of 2016, Elizabeth Valles, federal prisoner #72271-380,
pleaded guilty to drug importation and was sentenced to 70 months of
imprisonment. After sentencing, she failed to self-surrender to the Bureau of
Prisons as ordered by the district court. Valles absconded, and while she was
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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a fugitive, her one-year period to file a 29 U.S.C. § 2255 motion expired.
Valles remained a fugitive until she was arrested in June of 2018.
Eight months after her arrest, Valles filed this pro se § 2255 motion
alleging that she received ineffective assistance of counsel. She requested an
evidentiary hearing. In addition, Valles requested that the district court
equitably toll the limitations period, asserting that she was “unavailable” to
file a timely § 2255 motion because she had failed to self-surrender. The
district court ordered Valles to show cause as to why it should not dismiss
her motion as time barred. In response to the district court’s order, Valles
explained that “she had a nervous breakdown after her sentencing and . . .
eventually self-surrendered but not until 17 months after sentencing causing
an extraordinary circumstance.” Additionally, she urged that when a
defendant absconds, “the time of the absence . . . shall not be computed as
any par[t] to the period within which the action must be brought.”
The district court dismissed her § 2255 motion as time barred without
holding an evidentiary hearing. The court held that the motion was not filed
within one year of the date the judgment became final, nor had Valles
demonstrated it was timely under any other statutory provision. The district
court further declined to equitably toll the limitations period because, in its
view, Valles’s nervous breakdown was not an extraordinary circumstance.
The district court took special note that Valles failed to explain (1) how her
mental illness prevented her from pursuing her legal rights or (2) why she
waited over eight months after her arrest to file her § 2255 motion.
Accordingly, the district court dismissed the motion with prejudice—and
thereby denied Valles’s request for an evidentiary hearing on the issue of
equitable tolling.
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This court, however, granted a certificate of appealability (COA).
Thus, Valles now appeals that dismissal, contending that she was entitled to
an evidentiary hearing with respect to her claim for equitable tolling.
I
The question today is not whether Valles is entitled to equitable tolling
on the merits; instead, the precise question is whether the district court erred
in denying Valles’s claim without an evidentiary hearing. We review the
district court’s ruling for abuse of discretion. United States v. Cervantes, 132
F.3d 1006, 1110 (5th Cir. 1998).
II
We begin with the premise that not every petitioner who seeks relief
pursuant to § 2255 is entitled to an evidentiary hearing. A hearing is
unnecessary when “the motion and the files and records of the case
conclusively show that the prisoner is entitled to no relief.” 28 U.S.C. §
2255(b). This court has construed this provision to mean that an evidentiary
hearing is not required when “either (1) the movant’s claims are clearly
frivolous or based upon unsupported generalizations, or (2) the movant
would not be entitled to relief as a matter of law, even if his factual assertions
were true.” United States v. Harrison, 910 F.3d 824, 826–27 (5th Cir. 2018)
(citing United States v. Guerra, 588 F.2d 519, 521 (5th Cir. 1979)). “A
defendant is entitled to an evidentiary hearing on his § 2255 motion only if
[he] presents ‘independent indicia of the likely merit of [his] allegations.’”
United States v. Reed, 719 F.3d 369, 373 (5th Cir. 2013) (quoting United States
v. Cavitt, 550 F.3d 430, 442 (5th Cir. 2008)).
Thus, to determine whether Valles was entitled to an evidentiary
hearing, we must first consider the requirements applicable to the underlying
relief sought, which, in her case, is equitable tolling. Valles was entitled to
equitable tolling only if she showed that (1) she had been pursuing her rights
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diligently, and (2) that some extraordinary circumstance outside of her
control stood in her way and prevented timely filing. See United States v.
Wheaten, 826 F.3d 843, 851 (5th Cir. 2016). The extraordinary-circumstance
prong incorporates a causation requirement; the movant must show that the
extraordinary circumstance caused the untimely filing. See, e.g., San Martin
v. McNeil, 633 F.3d 1257, 1267 (11th Cir. 2011). This court has recognized
that mental incompetency may qualify as an “extraordinary circumstance”
that supports tolling of a limitations period. See Fisher v. Johnson, 174 F.3d
710, 715 (5th Cir. 1999).
On appeal, Valles points to several facts supporting her request for an
evidentiary hearing including: this court’s grant of a certificate of
appealability and the district court ordering her to undergo mental health
treatment. But, as the district court correctly recognized, Valles’s conclusory
allegation of a nervous breakdown, without any detail regarding how that
claimed condition affected her ability or caused her inability to file a timely §
2255 motion, is insufficient to support equitable tolling or require an
evidentiary hearing. Reed, 719 F.3d at 373. 1 Instead, her response contained
only the “unsupported generalization” that her “nervous breakdown”
constitutes an extraordinary circumstance that “should allow for equitable
1
The relevant portion of Valles’s response to the district court’s show-cause order
reads as follows:
The Court is correct that a Section 2255 motion is subject to a one-year limitations
period. The Movant under Coleman v. Johnson, 184 F.3d 398, 402-3 (5th Cir.
1999). There are circumstances that include situations in which a movant is
prevented in some extraordinary way from asserting [her] rights. In the case of the
Movant she had a nervous breakdown after her sentencing and called the Probation
officer. The Movant eventually self-surrendered but not until 17 months after
sentencing causing an extraordinary circumstance and this should allow for
equitable tolling for the Movant to be able to bring her 2255 Motion.
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tolling.” Id. (“Conclusory allegations, unsubstantiated by evidence, do not
support the request for an evidentiary hearing.”). Further, Valles’s
contention that absconding tolls the limitations is meritless because delays of
a petitioner’s own making do not qualify for equitable tolling. In re Wilson,
442 F.3d 872, 875 (5th Cir. 2006) (per curiam) (citation omitted).
Further, Valles has not shown that she pursued her rights diligently,
as required for equitable tolling. See Wheaten, 826 F.3d at 851. Thus, even if
the alleged “extraordinary circumstance” of a nervous breakdown prevented
Valles from filing until she was taken into custody, she has still failed to
explain the nearly eight-month delay between her arrest and her filing,
demonstrating that Valles did not act with reasonable diligence. See, e.g.,
Stroman v. Thaler, 603 F.3d 299, 302–03 (5th Cir. 2010) (per curiam) (finding
non-diligent a § 2254 petitioner who filed his petition seven weeks after
learning that his state habeas application had been denied).
Finally, Valles argues that the limitations period should not be applied
too harshly because this effort was her first § 2255 motion and her pro se
submissions in the district court are entitled to liberal construction. Bledsue
v. Johnson, 188 F.3d 250, 255 (5th Cir. 1999). Although she correctly states
both general principles, she is not convincing in demonstrating that they are
sufficient to establish an entitlement to an evidentiary hearing.
Accordingly, we hold that the district court did not abuse its discretion
in denying Valles’s § 2255 motion without holding an evidentiary hearing
because Valles proffered purely conclusory assertions and unsupported
generalizations regarding her entitlement to equitable tolling. Finding no
error, the judgment of the district court is AFFIRMED.
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James L. Dennis, Circuit Judge, dissenting:
Our court has long agreed with other courts and commentators that
§ 2255(b) must be construed literally, “to mean that a hearing must be held
‘(u)nless “the motion and files and records of the case conclusively show that
the prisoner is entitled to no relief.”’” Ferrara v. United States, 547 F.2d 861,
863 (5th Cir. 1977) (quoting § 2255(b)). To that effect, this court has
instructed that, after reviewing the case’s record in its entirety, a hearing may
only be denied when “(1) the movant’s claims are clearly frivolous or based
upon unsupported generalizations, or (2) the movant would not be entitled
to relief as a matter of law, even if h[er] factual assertions were true.” United
States v. Allen, 918 F.3d 457, 460 (5th Cir. 2019) (quoting United States v.
Harrison, 910 F.3d 824, 826-27 (5th Cir. 2018)). The majority, like the
district court below, 1 fails to heed § 2255(b)’s command to review “the
motion and files and records of the case,” instead deciding whether Valles’s
has made a sufficient case for relief based on the assertions in her pro se
motion alone. Had the majority reviewed the record, it could not conclude
with the certainty required to deny an evidentiary hearing that Valles is not
entitled to relief. Because I would vacate and remand for an evidentiary
hearing, I dissent.
The record discloses ample evidence that Valles may be entitled to
equitable tolling. As the majority acknowledges, mental incompetency has
been recognized as an “extraordinary circumstance” that supports tolling of
a limitations period. Supra at 4 (citing Fisher v. Johnson, 174 F.3d 710, 715
(5th Cir. 1999)). It also may satisfy equitable tolling’s second prong because
a petitioner “simply cannot pursue [her] legal rights during such a period [of
1
The district court order denying Valles’s petition as time-barred stated that “it
appears from the face of [Valles’s] § 2255 Motion that it is untimely and that she is not
entitled to equitable tolling.”
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mental incompetency].” Fisher, 174 F.3d at 715. Thus, if the record contains
minimal evidence of mental incompetence, Valles is entitled to an evidentiary
hearing on her motion. And in fact, the record in Valles’s case shows that she
suffered sustained and chronic mental illness that rose to a level that, in the
eyes of both the district court and the Government, required intervention.
Valles’s PSR noted that she had been experiencing “symptoms of depression
and anxiety,” for which she voluntarily sought mental health counseling at
the El Paso Behavioral Center (EPBC). At EPBC, Valles attended counseling
sessions four times per week. She eventually stopped attending EPBC
because she lacked childcare for her children, one of whom suffers from
depression and has attempted suicide. During the presentence interview, she
was encouraged to return to her counseling sessions. As part of Valles’s
imprisonment, the district court recommended that she receive mental
health treatment while in custody, and ordered as a special condition of
Valles’s supervised release that she participate in a mental health treatment
program. This is enough to establish that the record fails to “conclusively
show” that Valles is not entitled to equitable tolling. § 2255(b). See United
States v. Reed, 719 F.3d 369, 373 (5th Cir. 2013) (noting that the movant’s
burden of showing independent indicia of reliability “must be understood
practically, in the context of the claim being presented”). The majority faults
Valles for failing to prove, at this stage, that she is ultimately entitled to
equitable tolling. But that is the wrong inquiry. The question is not whether
Valles has established her entitlement to equitable tolling, but whether the
record supports a prima facie case for relief thus warranting an evidentiary
hearing, after which the fact-intensive question of equitable tolling may be
properly decided. See United States v. Rivas-Lopez, 678 F.3d 353, 358 (5th Cir.
2012) (“[W]e can neither credit nor refute Rivas’s allegation of ineffective
assistance on this record. To determine [that], we would benefit from
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additional facts that should be determined at an evidentiary hearing in the
district court.”).
Under the statute, the district court should have held an evidentiary
hearing on her claim. Because it failed to, I would vacate and remand for such
a hearing. I respectfully dissent.
8