Page:United States v. Hernandez-Zavala (18-40669) (2021) Opinion.pdf/2

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violating his conditions of supervised release. In his § 2255 motion, he asserted that he received ineffective assistance of counsel and that his due process rights were violated. The district court summarily dismissed his motion, finding that his ineffective-assistance claims were meritless, his due process claims were meritless and procedurally barred, and his motion was untimely. Hernandez-Zavala appealed, contending, inter alia, that the district court erred in summarily dismissing his motion because the court did not address all of his claims and because the court denied him the opportunity to amend to state his claims with more specificity. This court issued a certificate of appealability (“COA”) in part, reasoning that it was debatable whether the district court erred in dismissing his motion without permitting him an opportunity to amend.^[1]

We review factual findings in a denial of a § 2255 motion for clear error and issues of law de novo. United States v. Olvera, 775 F.3d 726, 728–29 (5th Cir. 2015). A district court’s denial of leave to amend a § 2255 motion is reviewed for abuse of discretion. United States v. Riascos, 76 F.3d 93, 94 (5th Cir. 1996) (per curiam).

Before the dismissal of his § 2255 motion, Hernandez-Zavala never moved for leave to amend the motion. But he now avers that the district court erred in summarily dismissing his motion, contending that he should have

↑ The COA did not expressly address whether the district court erred in dismissing Hernandez-Zavala’s § 2255 motion as untimely. The district court found that Hernandez-Zavala’s conviction became final on January 17, 2017, and that because he filed his petition on January 29, 2018, it was barred by the one-year statute of limitations under 28 U.S.C. § 2255(f). Hernandez-Zavala contends—and the government agrees—that his petition was, in fact, timely because this court denied his petition for rehearing on November 22, 2016, and his conviction became final 90 days after that denial on February 20, 2017. Hernandez-Zavala is correct that his petition was timely, so the district court erred in finding it barred by limitations. See Clay v. United States, 537 U.S. 522, 532 (2003); United States v. Petty, 530 F.3d 361, 365 (5th Cir. 2008) (per curiam).

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[1] The COA did not expressly address whether the district court erred in dismissing Hernandez-Zavala’s § 2255 motion as untimely. The district court found that Hernandez-Zavala’s conviction became final on January 17, 2017, and that because he filed his petition on January 29, 2018, it was barred by the one-year statute of limitations under 28 U.S.C. § 2255(f). Hernandez-Zavala contends—and the government agrees—that his petition was, in fact, timely because this court denied his petition for rehearing on November 22, 2016, and his conviction became final 90 days after that denial on February 20, 2017. Hernandez-Zavala is correct that his petition was timely, so the district court erred in finding it barred by limitations. See Clay v. United States, 537 U.S. 522, 532 (2003); United States v. Petty, 530 F.3d 361, 365 (5th Cir. 2008) (per curiam).

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