1

The Honorable Laurie Smith Camp, United States District Judge for the

District of Nebraska.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 08-1116

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Jose G. Diaz-Diaz, *

*

Plaintiff - Appellant, * Appeal from the United States

* District Court for the 

v. * District of Nebraska.

*

United States of America, * [UNPUBLISHED]

*

Defendant - Appellee. *

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Submitted: September 25, 2008

Filed: October 29, 2008

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Before RILEY, BRIGHT, and MELLOY, Circuit Judges.

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PER CURIAM.

Jose G. Diaz-Diaz appeals the district court’s1

 denial as successive of his second

28 U.S.C. § 2255 petition regarding a sentence of 210 months’ imprisonment and five

years’ supervised release for conspiracy to distribute and possess with intent to

distribute methamphetamine in violation of 21 U.S.C. § 841 and § 846. He also

appeals the district court’s denial of equitable tolling. The district court granted a

certificate of appealability on the grounds that Diaz-Diaz’s initial motion was

procedural and that there was a possible constitutional violation. 
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Diaz-Diaz’s conviction became final on January 9, 2006, when the Supreme

Court denied his petition for a writ of certiorari. Under the § 2255 statute of

limitations, Diaz-Diaz had until January 9, 2007 to file his § 2255 petition, one year

after his conviction became final. 28 U.S.C. § 2255(f)(1). However, Diaz-Diaz did

not file until February 9, 2007, when he requested equitable tolling. The district court

denied both the equitable tolling claim and Diaz-Diaz’s initial § 2255 motion as

untimely. Such a denial is usually considered to be made on the merits. Villanueva

v. United States, 346 F. 3d 55, 61 (2d Cir. 2003); Harvey v. Horan, 278 F.3d 370, 380

(4th Cir. 2002). Diaz-Diaz’s second § 2255 petition, filed on October 15, 2007, could

be considered successive and require a certificate of appealability from this court. 

Solely for the purposes of this appeal, we grant the certificate of appealability

sua sponte. We deny relief on the merits.

This court reviews de novo a district court’s denial of both a § 2255 motion and

equitable tolling. United States v. Hernandez, 436 F.3d 851, 854-55, 858 (8th Cir.

2006). This court also reviews the underlying fact-findings for clear error. Id. at 855.

Diaz-Diaz claims that he is entitled to equitable tolling because the government

lulled him into inaction by offering a potential sentence reduction in exchange for his

testimony in another case pending in Nebraska. Diaz-Diaz also argues that although

he pursued his rights diligently, he was prevented from timely filing because the

government transferred him from the Federal Correctional Institution in Fort Dix to

Nebraska without his legal papers, and he remained there without his legal papers for

nine months and five days so that he could serve as a possible witness. 

In order to justify the grant of equitable tolling, however, Diaz-Diaz must show

that some government action prevented him from timely filing the petition and that

he pursued his rights diligently. Hernandez, 436 F.3d at 858; Riddle v. Kemna, 523

F.3d 850, 857 (8th Cir. 2008). The record shows otherwise. As early as May 2005,
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Diaz-Diaz requested copies of pleadings and transcripts. He unfortunately did not

receive the materials, but made no further attempts until January 5, 2007, shortly

before the statute of limitations expired on January 9, 2007. Diaz-Diaz’s delay of

many months before following up on his request for legal materials cuts against his

claim for equitable tolling. Thus, Diaz-Diaz failed to establish “diligent pursuit” of

his rights.

Accordingly, we deny Diaz-Diaz relief and affirm.

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