IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

SHERMAN DIVISION

ANGEL H. TORRES-CAICEDO, #28103-078 §

§

VS. § CIVIL NO. 4:23v977

 § CRIMINAL NO. 4:17cr73(1)

UNITED STATES OF AMERICA §

REPORT AND RECOMMENDATION

OF UNITED STATES MAGISTRATE JUDGE

Movant Angel Hernando Torres-Caicedo, proceeding pro se, filed the above-styled and

numbered cause pursuant to 28 U.S.C. § 1651. The cause of action was referred to the undersigned

United States Magistrate Judge for findings of fact, conclusions of law, and recommendations for

the disposition of the case pursuant to 28 U.S.C. § 636, and the Amended Order for the Adoption

of Local Rules for the Assignment of Duties to the United States Magistrate Judge.

I. BACKGROUND

On September 20, 2019, Movant pled guilty to conspiracy to manufacture and distribute

cocaine intending, knowing, and with reasonable cause to believe that the cocaine will be unlawfully

imported into the United States, in violation of 21 U.S.C. § 963. On January 19, 2021, United States

District Judge Amos L. Mazzant, III, sentenced Movant to three hundred twenty-four months’

imprisonment. Movant did not file a direct appeal, but he filed the instant motion on October 25,

2023. The Court did not order Respondent to file a Response.

II. WRIT OF CORAM NOBIS

Movant filed a “Petition for Writ of Coram Nobis Pursuant to All Writs Act (28 U.S.C. 

§ 1651).” “The writ of coram nobis is an extraordinary remedy available to a petitioner no longer

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in custody who seeks to vacate a criminal conviction in circumstances where the petitioner can

demonstrate civil disabilities as a consequence of the conviction, and that the challenged error is of

sufficient magnitude to justify the extraordinaryrelief.” Jimenez v. Trominski, 91 F.3d 767, 768 (5th

Cir. 1996). However, a petitioner may not resort to coram nobis merely because he has failed to

meet the Antiterrorism and Effective Death Penalty Act of 1996's (“AEDPA”) gatekeeping

requirements. United States v. Esogbue, 357 F.3d 532, 535 (5th Cir. 2004). The record shows that

Movant is still in custody; thus, he does not meet the requirements of coram nobis. Accordingly,

the motion is properly construed as a motion filed pursuant to 28 U.S.C. § 2255. 

The United States Supreme Court has held that a district court must notify a pro se litigant

that it intends to re-characterize a pleading as a § 2255 motion with a warning that such recharacterization means any future § 2255 motions will be subject to restrictions on “second or

successive” § 2255 motions. Castro v. United States, 540 U.S. 375, 383 (2003). Because Movant

is time-barred by the AEDPA statute of limitations, as will be discussed below, any future § 2255

motions would also be dismissed as time-barred. Accordingly, the instant situation does not raise

Castro concerns because Movant’s motion was filed after the statute of limitations had passed.

III. ANTITERRORISM AND EFFECTIVE DEATH PENALTY ACT OF 1996

On April 24, 1996, the AEDPA went into effect. A one-year statute of limitations was

enacted for motions to vacate, set aside, or correct a sentence pursuant to 28 U.S.C. § 2255. In

general, a movant for collateral relief has one year from the date on which the judgment became final

to file a motion challenging his conviction. A conviction is final under § 2255 when a defendant’s 

options for further direct review are foreclosed. United States v. Gamble, 308 F.3d 536, 537 (5th

Cir. 2000); United States v. Thomas, 203 F.3d 350, 352 (5th Cir. 2000).

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Movant’s Final Judgment issued on January 19, 2021; thus, his notice of appeal was due

fourteen days later. Fed. R. App. P. 4(b). Movant did not file a notice of appeal; consequently, the

conviction became final for purposes of § 2255 fourteen days later, on February2, 2021. The present

§ 2255 motion must have been filed within one year from the date on which the judgment became

final. Accordingly, Movant had until February 2, 2022, in which to file the § 2255 motion. He did

not file it until October 25, 2023 – one year, eight months, and twenty-three days beyond the

limitations deadline. Thus, the § 2255 motion is time-barred unless Movant demonstrates he is

entitled to equitable tolling. 

The United States Supreme Court confirmed the AEDPA statute of limitations is not a

jurisdictional bar, and it is subject to equitable tolling. Holland v. Florida, 560 U.S. 631, 645 

(2010). “A habeas petitioner is entitled to equitable tolling only if he shows ‘(1) that he has been

pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way’ and

prevented timely filing.” Mathis v. Thaler, 616 F.3d 461, 474 (5th Cir. 2010) (quoting Holland, 560

U.S. at 649). “Courts must consider the individual facts and circumstances of each case in

determiningwhether equitable tolling is appropriate.” Alexander v. Cockrell, 294 F.3d 626, 629 (5th

Cir. 2002). The petitioner bears the burden of proving he is entitled to equitable tolling. Phillips v.

Donnelly, 216 F.3d 508, 511 (5th Cir. 2000). 

The Fifth Circuit has held the district court has the power to equitably toll the limitations

period only in “extraordinary circumstances.” Cantu-Tzin v. Johnson, 162 F.3d 295, 299 (5th Cir.

1998). To qualify for such equitable tolling, the petitioner must present “rare and exceptional

circumstances.” Davis v. Johnson, 158 F.3d 806, 810-11 (5th Cir. 1998), cert. denied, 526 U.S. 1074

(1999). In making this determination, it should be noted the Fifth Circuit has expressly held that

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proceeding pro se, illiteracy, deafness, lack oflegal training, and unfamiliaritywith the legal process

do not constitute extraordinary circumstances. Felder v. Johnson, 204 F.3d 168, 173 (5th Cir. 

2000). 

As a general rule, equitable tolling has historically been limited to situations where the

petitioner “has actively pursued his judicial remedies by filing a defective proceeding during the

statutory period, or where the [petitioner] has been induced or tricked by his adversary's misconduct

into allowing the filing deadline to pass.” Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 96 (1990).

Equitable tolling cannot be used to thwart the intent of Congress in enacting the limitations period.

See Davis, 158 F.3d at 811 (noting that “rare and exceptional circumstances” are required). At the

same time, the Court is aware dismissal of a first federal habeas petition is a “particularly serious

matter, for that dismissal denies the petitioner the protections of the Great Writ entirely, risking

injury to an important interest in human liberty.” Lonchar v. Thomas, 517 U.S. 314, 324 (1996).

Additionally, the Fifth Circuit has held that “[e]quity is not intended for those who sleep on their

rights.” Fisher v. Johnson, 174 F.3d 710, 715 (5th Cir. 1999). To obtain the benefit of equitable

tolling, Movant must also establish he pursued habeas relief with “reasonable diligence.” Palacios

v. Stephens, 723 F.3d 600, 604 (5th Cir. 2013); Holland, 560 U.S. at 653 (the diligence required for

equitable tolling purposes is reasonable diligence). 

Movant presents no evidence that he was induced or tricked by his adversary’s misconduct,

which caused him to untimely file his motion. Movant fails to show that “rare and extraordinary

circumstances” prevented him from timely filing. Davis, 158 F.3d at 810-11. In sum, Movant filed

his motion more than twenty months beyond the AEDPA limitations period, and he fails to meet his

burden of proving he is entitled to equitable tolling. Consequently, the instant § 2255 motion should

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be denied and dismissed as time-barred. 

IV. CERTIFICATE OF APPEALABILITY

A movant may not file an appeal from a final order in a proceeding under § 2255 “unless a

circuit justice or judge issues a certificate of appealability.” 28 U.S.C. § 2253(c)(1)(B). Although

Movant has not yet filed a notice of appeal, it is respectfully recommended that the court,

nonetheless, address whether he would be entitled to a certificate of appealability. See Alexander

v. Johnson, 211 F.3d 895, 898 (5th Cir. 2000) (A district court may sua sponte rule on a certificate

of appealability because “the district court that denies a [movant] relief is in the best position to

determine whether the [movant] has made a substantial showing of a denial of a constitutional right

on the issues before the court. Further briefing and argument on the very issues the court has just

ruled on would be repetitious.”). 

A certificate of appealability may issue only if a movant has made a substantial showing of

the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). The Supreme Court fully explained the

requirement associated with a “substantial showing of the denial of a constitutional right” in Slack 

v. McDaniel, 529 U.S. 473, 484 (2000). In cases where a district court rejected constitutional claims

on the merits, the movant must demonstrate “that reasonable jurists would find the district court’s

assessment of the constitutional claims debatable or wrong.” Id.; Henry v. Cockrell, 327 F.3d 429,

431 (5th Cir. 2003). When a district court denies a motion on procedural grounds without reaching

the underlying constitutional claim, a certificate of appealability should issue when the movant

shows, at least, that jurists of reason would find it debatable whether the motion states a valid claim 

of the denial of a constitutional right and that jurists of reason would find it debatable whether the

district court was correct in its procedural ruling. Id.

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In this case, it is respectfully recommended reasonable jurists could not debate the denial of

Movant’s § 2255 motion on substantive or procedural grounds, nor find that the issues presented are

adequate to deserve encouragement to proceed. See Miller-El v. Cockrell, 537 U.S. 322, 336-37

(2003) (citing Slack, 529 U.S. at 484). Accordingly, it is recommended the court find Movant is not

entitled to a certificate of appealability. 

V. RECOMMENDATION

It is recommended the above-styled motion for relief under 28 U.S.C. § 2255 be denied and

this case be dismissed with prejudice. It is further recommended a certificate of appealability be

denied.

Within fourteen days after service of the magistrate judge’s report, any party must serve and

file specific written objections to the findings and recommendations of the magistrate judge. 28

U.S.C. § 636(b)(1)( c). 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 party from appealing the unobjected-to

factual findings and legal conclusions of the magistrate judge that are accepted by the district court,

except upon grounds of plain error, provided that the party has been served with notice that such

consequences will result from a failure to object. See Douglass v. United Servs. Auto. Ass'n, 79 F.3d

1415, 1430 (5th Cir. 1996) (en banc), superceded by statute on other grounds, 28 U.S.C. § 636(b)(1)

(extending the time to file objections from ten to fourteen days).

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