United States v. Eduardo Rodriguez, 2017 U.S. App. LEXIS 9957

Eduardo Rodriguez pleaded guilty to conspiracy to transport undocumented aliens and was sentenced; judgment entered June 28, 2012; he did not appeal.
As part of his plea he waived appeal and collateral attack rights; he later filed a pro se § 2255 petition on July 25, 2014 claiming counsel Marc Montemayor rendered ineffective assistance by failing to file an appeal despite Rodriguez’s instructions.
Rodriguez acknowledged the one-year limitation but argued the § 2255(f)(4) discovery rule should run from October 2013, when he discovered counsel had not filed an appeal, making his July 2014 filing timely.
The district court denied and dismissed the petition as untimely under § 2255(f), found no equitable tolling, and concluded §§ 2255(f)(2)–(4) did not apply; Rodriguez appealed.
The Fifth Circuit reviewed timeliness de novo, considered whether Rodriguez had exercised due diligence under § 2255(f)(4), and limited the record to facts Rodriguez presented below (which characterized counsel’s conduct as abandonment, not assent or affirmative misrepresentation).
The Fifth Circuit held Rodriguez’s facts showed at most attorney abandonment and insufficient diligence; the facts supporting the claim could have been discovered earlier, so § 2255(f)(4) did not make the petition timely. Judgment affirmed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Rodriguez’s § 2255 was timely under § 2255(f)(4) (discovery rule)	§2255(f)(4) begins when he discovered in Oct 2013 that counsel failed to file the appeal; his July 2014 filing is within one year	The record shows Rodriguez’s own allegations reflect counsel abandonment and he was not diligent; facts could have been discovered earlier	The court held §2255(f)(4) does not apply because Rodriguez failed to show due diligence; petition untimely and dismissal affirmed
Whether an evidentiary hearing was required on timeliness	Rodriguez requested hearing to prove he instructed counsel and exercised diligence	District court found no factual showing warranting a hearing; appellate review de novo of timeliness	No hearing required; record facts insufficient to create dispute that would toll or restart the limitations period

United States v. Cavitt, 550 F.3d 430 (5th Cir.) (standard of review for § 2255 timeliness)
Starns v. Andrews, 524 F.3d 612 (5th Cir.) (diligence under analogous habeas statute requires reasonable promptness)
Johnson v. United States, 544 U.S. 295 (2005) (diligence shown by prompt action once petitioner realizes need to act)
Anjulo-Lopez v. United States, 541 F.3d 814 (8th Cir.) (review of district court’s determination of untimeliness)
Manning v. Epps, 688 F.3d 177 (5th Cir.) (attorney abandonment does not by itself satisfy diligence requirement)
United States v. Patterson, 211 F.3d 927 (5th Cir.) (claims of counsel’s failure to appeal must be supported; standards for relief)
United States v. Flores, 135 F.3d 1000 (5th Cir.) (related appellate procedure principles)
United States v. Edwards, 442 F.3d 258 (5th Cir.) (need for independent indicia to warrant evidentiary hearing)
United States v. Cervantes, 132 F.3d 1106 (5th Cir.) (evidentiary hearing unnecessary when defendant’s showing is inconsistent with record)
United States v. Jackson, [citation="470 F. App'x 324"] (5th Cir.) (persuasive authority on diligence under § 2255)
United States v. Wynn, 292 F.3d 226 (5th Cir.) (circumstances where counsel misleading client may affect diligence)
Ballard v. Burton, 444 F.3d 391 (5th Cir.) (citation guidance on persuasive authority)