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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

ROSALIO RAMOS TAPIA,

#54577-177,

§

§ 

 Movant, §

§ No. 3:22-cv-02221-N (BT)

v. § No. 3:16-cr-00130-N-13 

§

UNITED STATES of AMERICA, §

 Respondent. §

FINDINGS, CONCLUSIONS, AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

Movant Rosalio Ramos Tapia, a federal prisoner, filed a pro se motion 

to vacate, set-aside, or correct sentence under 28 U.S.C. § 2255. The District 

Court referred the resulting civil action to the United States magistrate judge 

pursuant to 28 U.S.C. § 636(b) and a standing order of reference. In 

response, the Government filed a motion to dismiss Tapia’s § 2255 motion 

as time barred (ECF No. 11). For the following reasons, the Court should 

grant the Government’s motion. 

I.

Tapia pleaded guilty to conspiracy to possess with intent to distribute 

a controlled substance in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B)(viii), 

and 846. On February 2, 2018, the District Court entered judgment 

sentencing him to 210 months’ imprisonment. Tapia appealed to the Fifth 

Circuit Court of Appeals. The Fifth Circuit affirmed the judgment on January 

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6, 2020. Tapia then filed a petition for writ of certiorari, which the Supreme 

Court denied on October 5, 2020. 

On October 4, 2022,1 the Court received Tapia’s § 2255 motion, 

motion for leave to file a memorandum, and motion to appoint counsel. The 

Court denied Tapia’s motion to appoint counsel without prejudice and 

granted his motion for leave to file a memorandum. The Court directed 

Tapia to file his memorandum by November 7, 2022. When he failed to 

timely file his memorandum, the Court issued an order to show cause on 

November 14, 2022. Thereafter, the Court received Tapia’s memorandum, 

which the Court deemed filed—under the prison “mailbox rule”—on 

November 13, 2022.2

Tapia asserts the following claims for relief:

(1) his trial attorney provided ineffective assistance of counsel when 

he 

a. failed to have a Spanish translator at critical points in the 

proceedings and to produce documents in Spanish for him;

b. failed to investigate the case; 

c. failed to properly challenge his involvement in the drug 

conspiracy; 

(2) his appellate attorney provided ineffective assistance of counsel 

on appeal; and 

1 Tapia’s § 2255 motion is signed and dated September 27, 2002, but this is 

clearly an error, as the District Court did not enter its judgment until 2018. 

2 The Court deems a prisoner’s pleading to be filed on the date that he 

submitted his pleading to prison authorities to be mailed. Houston v. Lack, 

487 U.S. 266, 276 (1988). 

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(3) his guilty plea was not knowing and voluntary. 

Tapia also argues that he is being denied access to his Presentence Report 

(PSR), and he is entitled to an evidentiary hearing on his § 2255 motion. 

In response, the Government filed a motion to dismiss, arguing that 

Tapia’s § 2255 motion should be dismissed as time barred. Tapia did not file 

a response to the Government’s motion, but he filed a letter to the Clerk of 

Court inquiring about the status of his case.

II.

A. Statute of Limitations 

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) 

establishes a one-year statute of limitations for federal habeas proceedings. 

See ANTITERRORISM AND EFFECTIVE DEATH PENALTY ACT, Pub. L. 

104-132, 110 Stat. 1214 (1996). The statute provides that the limitations 

period shall run from the latest of: 

(1) the date on which the judgment of conviction becomes 

final; 

(2) the date on which the impediment to making a motion 

created by governmental action in violation of the 

Constitution or laws of the United States is removed, if 

the movant was prevented from filing by such 

governmental action; 

(3) the date on which the right asserted was initially 

recognized by the Supreme Court, if that right has been 

newly recognized by the Supreme Court and made 

retroactively applicable to cases on collateral review; or 

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(4) the date on which the facts supporting the claim or claims 

presented could have been discovered through the 

exercise of due diligence. 

See 28 U.S.C. § 2255(f).

In most cases, the limitations period begins to run when the judgment 

becomes final. See 28 U.S.C. § 2255(f)(1). Here, the Court entered judgment 

on February 2, 2018. The Fifth Circuit Court of Appeals affirmed the 

judgment on January 6, 2020. And the Supreme Court denied Tapia’s 

petition for writ of certiorari on October 5, 2020. Tapia’s conviction thus 

became final on October 5, 2020. See Clay v. United States, 537 U.S. 522, 

527 (2003) (“Finality attaches when [the Supreme Court] affirms a 

conviction on the merits on direct review or denies a petition for a writ of 

certiorari, or when the time for filing a certiorari petition expires.”). 

Tapia then had one year, or until October 5, 2021, to file his § 2255 

motion. But Tapia did not file his § 2255 motion until September 27, 2022—

almost a year after the one-year time limit had expired. His motion is 

therefore untimely. 

B. Equitable Tolling 

The one-year limitation period is subject to equitable tolling in “rare 

and exceptional cases.” Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998); 

see also Fisher v. Johnson, 174 F.3d 710, 713 (5th Cir. 1999) (asserting that 

courts must “examine each case on its facts to determine whether it presents 

sufficiently ‘rare and exceptional circumstances’ to justify equitable tolling”) 

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(quoting Davis, 158 F.3d at 811). The Fifth Circuit has held that “[e]quitable 

tolling applies principally where the plaintiff is actively misled by the 

defendant about the cause of action or is prevented in some extraordinary 

way from asserting his rights.” Coleman v. Johnson, 184 F.3d 398, 402 (5th 

Cir. 1999), abrogation on other grounds recognized by Richards v. Thaler, 

710 F.3d 573, 578-79 (5th Cir. 2013) (quoting Rashidi v. American President 

Lines, 96 F.3d 124, 128 (5th Cir. 1996)). A movant bears the burden of proof 

to show he is entitled to equitable tolling. Phillips v. Donnelly, 216 F.3d 508, 

511 (5th Cir. 2000).

Tapia does not argue that he is entitled to equitable tolling. Likewise, 

he does not present an argument that could be construed as seeking 

entitlement to equitable tolling. Tapia’s motion was not timely filed, and he 

fails to plead any facts showing he was misled by the Government or 

prevented in some extraordinary way from asserting his rights. He merely 

filed his motion almost one year late. Tapia is therefore not entitled to 

equitable tolling. 

Because Tapia’s claims are clearly time barred, the Court need not 

reach the merits of his arguments. 

III. 

For the foregoing reasons, the Court should GRANT the Government’s 

motion to dismiss (ECF No. 11) and DISMISS as time-barred Tapia’s motion 

to vacate, set-aside, or correct sentence under 28 U.S.C. § 2255. 

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Signed February 5, 2023. 

 _____________________________

REBECCA RUTHERFORD

UNITED STATES MAGISTRATE JUDGE

INSTRUCTIONS FOR SERVICE AND

NOTICE OF RIGHT TO APPEAL/OBJECT

A copy of this report and recommendation shall be served on all 

parties in the manner provided by law. Any party who objects to any part of 

this report and recommendation must file specific written objections within 

14 days after being served with a copy. See 28 U.S.C. § 636(b)(1); FED. R. CIV.

P. 72(b). In order to be specific, an objection must identify the specific 

finding or recommendation to which objection is made, state the basis for 

the objection, and specify the place in the magistrate judge's report and 

recommendation where the disputed determination is found. An objection 

that merely incorporates by reference or refers to the briefing before the 

magistrate judge is not specific. Failure to file specific written objections will 

bar the aggrieved party from appealing the factual findings and legal 

conclusions of the magistrate judge that are accepted or adopted by the 

district court, except upon grounds of plain error. See Douglass v. United 

Services Automobile Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996).

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