United States v. Mario Duran, 934 F.3d 407

Duran was convicted of transporting child pornography and sentenced to 120 months imprisonment and five years supervised release; judgment entered November 2, 2015.
Defense counsel moved to withdraw November 5, 2015; no notice of appeal was filed and the conviction became final November 16, 2015.
Duran mailed a pro se 28 U.S.C. § 2255 motion; the district court clerk docketed it November 28, 2016. The envelope bore a November 21, 2016 postmark.
Duran claimed he gave his attorney timely instructions to file a direct appeal and later alleged counsel ignored that instruction; the Government produced a letter from counsel stating Duran waived appeal rights in writing.
The district court found the § 2255 motion untimely under § 2255(f)(1) (and alternatively without merit), declined an evidentiary hearing, and denied relief; the Fifth Circuit affirmed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Timeliness under § 2255(f)(1) and prison mailbox rule	Duran: motion was placed in prison mailbox on Nov 8–9, 2016, so timely	Gov: postmark Nov 21, 2016 (after Nov 16 deadline); no proof of mailing to invoke mailbox rule	Held: Untimely. Duran failed to prove delivery to prison mail system; cannot invoke mailbox rule
Tolling under § 2255(f)(4) (discovery of counsel’s failure to appeal)	Duran: discovered counsel’s failure later; equitable grounds for later start date	Gov: Duran gave no date or diligence showing when he discovered counsel’s omission	Held: § 2255(f)(4) inapplicable—Duran did not show when he discovered facts or due diligence
Ineffective assistance for failure to file appeal	Duran: instructed counsel to appeal; counsel ignored instruction	Gov: counsel’s file contains letter advising of appeal right and Duran’s written acknowledgment declining appeal	Held: Court pretermitted detailed merits analysis because motion was untimely; district court alternatively found no merit based on counsel’s letter

United States v. Plascencia, 537 F.3d 385 (5th Cir. 2008) (finality date for conviction after judgment)
United States v. Cavitt, 550 F.3d 430 (5th Cir. 2008) (standard of review for § 2255 denials)
United States v. McDaniels, 907 F.3d 366 (5th Cir. 2018) (affidavits/indicia required to obtain evidentiary hearing on § 2255)
United States v. Rodriguez, 858 F.3d 960 (5th Cir. 2017) (de novo review of timeliness question and limits on district courts denying hearings when no facts presented)
Medley v. Thaler, 660 F.3d 833 (5th Cir. 2011) (prison mailbox rule for pro se filings)
Stoot v. Cain, 570 F.3d 669 (5th Cir. 2009) (postal/mailing rule applies once prisoner shows tender to prison officials)
Thompson v. Rasberry, 993 F.2d 513 (5th Cir. 1993) (burden on pro se prisoner to prove timely filing; remand for opportunity to prove)
Logan v. Cent. Freight Lines, 858 F.2d 993 (5th Cir. 1988) (prisoner must make requisite showing of timely filing)
Thompson v. Montgomery, 853 F.2d 287 (5th Cir. 1988) (remand where assertion of timely mailing unsupported by record)