# United States Court **of Appeals**  **f or the Fifth Circuit** 

No. 18

- 40669

**United States of America,** Plaintiff

— Appellee **,**

versus
**Abraham Hernandez**

**- Zavala,**  Defendant

— Appellant

**.**
Appeal from the United States District Court for the Southern District of Texas No. 2:16

- CR

- 35

- 1 No. 2:18

- CV

- 37 No. 2:15

- CR

- 883

- 1

Before **Jones, Smith,** and **Elrod,** Circuit Judges

**. Jerry E. Smith,**  Circuit Judge **:** Abraham Hernandez

- Zavala, federal prisoner # 28801

- 298, appeals the summary dismissal of his pro se 28 U.S.C. § 2255 motion , i n which he challeng ed his sentence for revocation of supervised release that result ed in an 18

- mont h prison sentence to run consecutively with his sen tence for illegal reentry

. Hernandez

- Zavala pleaded guilty of illegal reentry and pleaded true to United States Court of Appeals Fifth Circuit 

### FILED January 7, 2021

Lyle W. Cayce Clerk Case: 18-40669 Document: 00515697366 Page: 1 Date Filed: 01/07/2021No. 18

- 40669

2 violating his conditions of supervised release

. I n his § 2255 motion, he as
serted that he received ineffective assistance of counsel and that his due pro

cess rights were violated. The district court summarily dismissed his motion, find ing that his ineffective

- assistance claims were meritless, his due process claims were meritless an d procedurally barred, and his motion was untimely. Hernandez

- Zavala appealed, contending , inter alia , that the dis trict court erred in sum marily 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 cer tif i cate of appeala bility (“COA”) in part , reasoning that it was debatable whether the district court erred in dismissing his motion without permitting him an

o pportunity 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 h e now avers that the district court

erre d in summarily dismissing his motion , contending that he should have

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 pet ition 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 N ovember 22, 2016, and his conviction became final 90 days after that denial on February 20, 201 7

. Hernandez

- Zavala is correct that his petition was timely, so the district court erred in find

ing 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). Case: 18-40669 Document: 00515697366 Page: 2 Date Filed: 01/07/2021No. 18

- 40669

3 be en permitted to state his claims with greater specificity. The government counters that district courts do not have a duty sua sponte to give § 2255 mov

ants a chance to amend their mo tions

. We agree

. A district court does not err in declining to offer sua sponte a § 2255 movant an opportunity to amend.
In most of the cases that Hernandez

- Zavala cites in support of his con
tention , the movants sought leave to amend before the dismissal of their § 2255 motions. 2 He also cites one other published opinion, United States v. Martinez , 181 F.3d 627 (5th Cir. 1 999), to support his position. Although Mar tinez vacated and remand ed to allow the movant to “ state with greater specificity his complaints,” the court did not purport to impose a universal duty on district courts to provide sua sponte the chance to amen d deficient § 2255 motions. Id. at 629. Indeed, Martinez did not address whether the movant had requested leave to amend before the dismissal. See id. at 628. Thus, Martinez does not establish a requirement to offer sua sponte a movant the opportunity to amend. Moreover, Hernandez

- Zavala fails to state how he would cure his § 2255 motion if given the chance to amend

. Outside the § 2255 context, w e have held repeatedly that a district court does not abuse its discretion in dis

missing complaints where a plaintiff does not explain how he or she would amend. See, e.g. , Benfield v. Magee , 945 F.3d 333, 3 39

– 40 (5th Cir. 2019)

. A lthough he requests the opportunity to state his claims with more speci fi

city, Hernandez

- Zavala does n ot explain what facts he would allege to do so.

2 See Riascos , 76 F.3d at 94−95 ; United States v. Rice , No. 99

- 20751 , 1999 U.S. App. LEXIS 39531 , at *1 (5th Cir. Dec. 27, 1999) (per curiam) (unpublished) ; United v. Alcantar , No. 98

- 20932, 1999 WL 422955 , at *1 (5th Cir. May 25, 1999) (per curiam) (unpublished)

. In each of those cases, the movant either requested leave to amend before dismissal or in

cluded pleadings that rea son ably should have been inter preted as requests to amend. Case: 18-40669 Document: 00515697366 Page: 3 Date Filed: 01/07/2021No. 18

- 40669

4 Because the district court was not required to offer sua sponte the chance to amend and because Hernandez

- Zavala does not explain how he would amend if given the opportunity, the court did not abuse its disc retion in summarily dismissing the § 2255 motion.
The judgment of dismissal is **AFFIRM ED** 

. Case: 18-40669 Document: 00515697366 Page: 4 Date Filed: 01/07/2021