1

The Honorable Nanette K. Laughrey, United States District Judge for the

Western District of Missouri.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 07-3685

___________

Jesus Anjulo-Lopez, *

*

Appellant, * Appeal from the United States

* District Court for the

v. * Western District of Missouri.

*

United States of America, *

*

Appellee. *

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Submitted: June 10, 2008

 Filed: September 8, 2008

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Before MELLOY, BEAM and BENTON, Circuit Judges.

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BEAM, Circuit Judge.

Jesus Anjulo-Lopez appeals from the decision of the district court1

 to dismiss

as untimely his 28 U.S.C. § 2255 motion to vacate, set aside or correct his sentence

without holding an evidentiary hearing. We affirm.
2

Because Anjulo-Lopez was sentenced on November 18, 2005, and did not file

a direct appeal, his conviction became final on or about December 5, 2005, when the

ten-day period for filing a notice of appeal expired. See Never Misses A Shot v.

United States, 413 F.3d 781, 782 (8th Cir. 2005) (noting that, where defendant failed

to file direct appeal, his conviction became final ten days after the entry of judgment);

Fed. R. App. P. 4(b)(1)(A) (setting a 10-day time limit for filing a notice of appeal in

a criminal case); Fed. R. App. P. 26(a)(2) (delineating the method for computing the

ten-day period and excluding the first day of the period, intermediate Saturdays,

Sundays, and legal holidays). See also, e.g., Moshier v. United States, 402 F.3d 116,

118 (2d Cir. 2005) (per curiam) (concluding that unappealed criminal judgment

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I. BACKGROUND

On July 12, 2005, Anjulo-Lopez pled guilty to charges involving a drug

distribution conspiracy and the unlawful possession of firearms. On November 18,

2005, the district court sentenced him to 135 months on the first count and 120 months

on the second count, to be served concurrently. No direct appeal was filed.

On March 5, 2007, Anjulo-Lopez filed a pro se section 2255 motion to vacate,

set aside or correct his sentence, alleging, among other things, that trial counsel was

ineffective for failing to file a direct appeal despite his request for counsel to do so.

Specifically, Anjulo-Lopez alleged that: (1) based on a conversation with his attorney,

he believed for some time that an appeal had been filed on his behalf and waited to

hear from his attorney; (2) after some time passed with no word, another inmate

suggested that no appeal had been filed; (3) Anjulo-Lopez then sent a certified letter

to his attorney, requesting copies of the record; and (4) his attorney responded by

sending a copy of the judgment and commitment order. Anjulo-Lopez thereafter

discovered that no appeal had been filed and thus prepared and filed his motion.

The government moved to dismiss the motion as untimely, noting that it was

filed more than a year–approximately fifteen months–after Anjulo-Lopez's conviction

became final.2

 The government also argued that Anjulo-Lopez had not shown either
becomes final for purposes of calculating the one-year period specified in section

2255 when the ten-day period for filing a notice of appeal expires). 

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extraordinary circumstances or diligent pursuit of his claims, as required to warrant

equitable tolling of the limitations period. 

In response, Anjulo-Lopez conceded that his motion was untimely but asked

the court to apply equitable tolling because, through no fault of his own, he did not

discover counsel's failure to file an appeal until after the one-year filing deadline

passed. Specifically, Anjulo-Lopez alleged that he was repeatedly transferred to

various holding facilities during the first five months after his sentencing hearing, and

that he was unable to communicate with anyone about his appeal during that time. He

further explained that he did not contact his attorney for a while thereafter because he

believed he was supposed to wait to hear from his attorney and that by the time he

found someone willing to help him contact his attorney, the one-year filing deadline

had already passed. Finally, he argued that extraordinary circumstances, including his

lack of knowledge of the English language and inadequate access to the prison library,

prevented him from filing a timely motion and warranted equitable tolling.

 

The government filed a reply to Anjulo-Lopez's response, and again urged the

district court to dismiss the motion as time-barred. The government first noted that

Anjulo-Lopez had conceded his motion was untimely and then reiterated its position

that he could not benefit from equitable tolling because he did not diligently pursue

his appeal. More specifically, the government pointed to Anjulo-Lopez's admission,

in his response to the government's motion to dismiss, that his first attempt to contact

his attorney regarding his appeal came after the one-year filing deadline had

passed–more than a year after his conviction became final. In response, Anjulo-Lopez

filed a supplemental reply, asking the court to hold an evidentiary hearing on the

applicability of equitable tolling. 
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Without holding an evidentiary hearing, the district court dismissed AnjuloLopez's section 2255 motion as time-barred on May 14, 2007. The district court

declined to apply equitable tolling because it found Anjulo-Lopez had not shown

diligence in pursuing his appeal. The court also denied Anjulo-Lopez's subsequent

Rule 59(e) motion to alter or amend the judgment. Anjulo-Lopez then filed a notice

of appeal with this court and requested a certificate of appealability from the district

court, but the district court declined to grant the certificate.

Although not explicitly considered by the district court, we noted that 28 U.S.C.

§ 2255(f)(4) allows a prisoner the opportunity to file a section 2255 motion within one

year of the date on which the facts supporting the claim or claims presented could

have been discovered in the exercise of due diligence. Accordingly, this court granted

a certificate of appealability to consider whether the district court erred in failing to

hold an evidentiary hearing to determine when the facts supporting Anjulo-Lopez's

claim concerning his counsel's failure to file an appeal could have been discovered

through the exercise of due diligence. We now affirm.

II. DISCUSSION

 

A petitioner is entitled to an evidentiary hearing on a section 2255 motion

unless "'the motion and the files and the records of the case conclusively show that

[he] is entitled to no relief.'" United States v. Ledezma-Rodriguez, 423 F.3d 830, 835-

36 (8th Cir. 2005) (alteration in original) (quoting 28 U.S.C. § 2255). No hearing is

required, however, "where the claim is inadequate on its face or if the record

affirmatively refutes the factual assertions upon which it is based." Watson v. United

States, 493 F.3d 960, 963 (8th Cir. 2007) (internal quotation omitted). 

We review the district court's decision not to hold an evidentiary hearing for

an abuse of discretion. Ledezma-Rodriguez, 423 F.3d at 836. That standard is

somewhat misleading, however, because review of the determination that no hearing
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was required obligates us to look behind that discretionary decision to the court's

underlying determination that Anjulo-Lopez's motion is untimely–a determination we

review de novo. See id; E.J.R.E. v. United States, 453 F.3d 1094, 1097 (8th Cir.

2006). Accordingly, we must examine Anjulo-Lopez's submissions to the district

court, and consider the validity of his timeliness argument. See, e.g., Saunders v.

United States, 236 F.3d 950, 952 (8th Cir. 2001). If it is apparent from the face of the

motion and supporting record that Anjulo-Lopez's petition is untimely, "then no

hearing was, or is now, required." Id.

We therefore turn our attention to the timeliness issue. The Antiterrorism and

Effective Death Penalty Act of 1996 (AEDPA) imposed, among other things, a oneyear statute of limitations on motions by prisoners seeking to modify, vacate or correct

their federal sentences. Johnson v. United States, 544 U.S. 295, 299 (2005). As

relevant to this appeal, that year will begin to run from the later of either "the date on

which the judgment of conviction becomes final" or "the date on which the facts

supporting the claim or claims presented could have been discovered through the

exercise of due diligence." 28 U.S.C. § 2255(f)(1), (4). 

On appeal, Anjulo-Lopez does not dispute that his section 2255 motion was

filed more than a year after his conviction became final. He argues, however, that the

limitations period should run from the date on which a duly diligent person in his

circumstances would have discovered counsel's failure to notice an appeal. He asserts

that it is unclear from the current record exactly when a duly diligent person would

have made that discovery. He thus contends that an evidentiary hearing is warranted

to determine that date and whether his motion was filed within one year of it.

We believe such a hearing is unnecessary. To be entitled to invoke the statute

of limitations contained in section 2255(f)(4), we have said that a petitioner "must

show the existence of a new fact, while also demonstrating [that he] acted with

diligence to discover the new fact." E.J.R.E., 453 F.3d at 1097. The proper task in
3

We realize Anjulo-Lopez now contends that a factual issue exists as to when

he first attempted to contact his attorney. As noted above, after the district court

granted the government's motion to dismiss, Anjulo-Lopez filed a Rule 59(e) motion

to alter or amend the judgment and again asked the court for an evidentiary hearing

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a case such as this one, therefore, "is to determine when a duly diligent person in

petitioner's circumstances would have discovered that no appeal had been filed."

Wims v. United States, 225 F.3d 186, 190 (2d Cir. 2000). Because we think it

apparent that a duly diligent person in Anjulo-Lopez's circumstances would have

discovered counsel's failure to notice an appeal well over a year before he filed his

motion, we conclude that the district court did not abuse its discretion in dismissing

the petition as time-barred without an evidentiary hearing.

To be sure, section 2255 "does not require the maximum feasible diligence,

only due, or reasonable, diligence." Id. at 190 n.4 (internal quotation omitted). "Due

diligence therefore does not require a prisoner to undertake repeated exercises in

futility or to exhaust every imaginable option." Aron v. United States, 291 F.3d 708,

712 (11th Cir. 2002). But, it does at least require that a prisoner make reasonable

efforts to discover the facts supporting his claims. Id.

Here, we think it clear that Anjulo-Lopez did not use reasonable efforts to

discover the facts underlying his claim. Between his original petition and his response

to the government's motion to dismiss, Anjulo-Lopez merely alleged that (1) he "was

not able to communicate with anyone" during the first five months after sentencing,

due to repeated transfers; (2) he thereafter believed an appeal had been filed and "all

that was required of him[] was [to] wait"; (3) at some point, he began to suspect that

no appeal had been filed and "sent a certified/registered letter to [his attorney]

requesting copies of the record" (but not, apparently, directly asking whether an

appeal had been filed); and (4) "[his attorney] sent a copy of the Judgment and

commitment Order;" but (5) by the time he finally attempted to contact his attorney,

"[his] filing date for [his] § 2255 motion had already passed."3
on the issue of equitable tolling. In a supplemental filing, he also submitted an

affidavit purporting to describe the diligent steps he had taken to pursue his appeal.

Among other things, he claimed to have made numerous telephone calls to his

attorney over a period of nearly a year, while in transit, and to have sent his attorney

several letters, all with no response. 

 We note, however, that a Rule 59(e) motion "does not allow arguments or

evidence to be presented after judgment when the argument or evidence could have

been presented earlier." McAllister v. Transamerica Occidental Life Ins. Co., 325

F.3d 997, 1003 n.4 (8th Cir. 2003). See also Zimmerman v. City of Oakland, 255

F.3d 734, 740 (9th Cir. 2001) (noting, in the context of a motion to dismiss, that a

party who fails to introduce facts in a motion or opposition cannot introduce them

later in a Rule 59(e) motion unless those facts were previously unavailable).

Moreover, the factual allegations in the affidavit are contradicted by Anjulo-Lopez's

own assertions in his original motion and his response to the government's motion to

dismiss. Accordingly, even if we were to consider the affidavit, we would not find

that it renders the motion and supporting record inconclusive on the issue of whether

Anjulo-Lopez acted with due diligence. See, e.g., Holloway v. United States, 960

F.2d 1348, 1358 (8th Cir. 1992) (concluding that a single self-serving, selfcontradicting statement is insufficient to render the motion, files, and records of a case

inconclusive, so as to warrant an evidentiary hearing). 

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These allegations are not indicative of a reasonably diligent quest for

information. Indeed, Anjulo-Lopez neither explained why he was "unable to

communicate with anyone" about his appeal while in transit, nor described any

thwarted attempts to check on the status of his appeal during that period. Instead,

Anjulo-Lopez actually admitted he waited an entire year to even contact his attorney

regarding his appeal. Given that "[the] statute's clear policy calls for promptness,"

Johnson, 544 U.S. at 311, his efforts fell far short of reasonable diligence. 

Moreover, there is every reason to believe that more prompt action on AnjuloLopez's part would have revealed counsel's failure to notice an appeal more than one

year before he filed his motion. That an appeal had not been filed was a matter of

public record. And we think it clear from the face of the motion and record here that
4

We realize that this determination places us at odds with the Second Circuit's

ultimate conclusion in Wims v. United States, 225 F.3d at 190-91, the principal

authority Anjulo-Lopez relies on in support of his timeliness argument. In Wims, the

Second Circuit concluded that it was not unreasonable to think that it would take even

a duly diligent person at least five months to discover counsel's failure to notice an

appeal. Id. at 191. The court therefore found it was not plainly apparent that Wims'

section 2255 motion–filed one year and five months after his conviction became

final–was untimely even under section 2255(f)(4). Id.

 

Although the two cases have some factual similarities, we respectfully believe

that the Second Circuit's decision does not control the outcome of this case. For the

reasons discussed, we think it clear that a duly diligent person in Anjulo-Lopez's

circumstances could have discovered counsel's failure to notice an appeal more than

a year before he filed his petition, and that section 2255(f)(4) is therefore unavailable

to him. 

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a duly diligent person in Anjulo-Lopez's circumstances could have unearthed that

information anytime after the deadline for filing the appeal passed. See Owens v.

Boyd, 235 F.3d 356, 360 (7th Cir. 2001). Indeed, as Anjulo-Lopez himself alleged

in his original petition, when he finally did attempt to contact his attorney via letter

(albeit, a letter that did not, apparently, directly ask whether an appeal had been filed),

counsel responded by sending copies of the judgment and commitment order.4

For the foregoing reasons, we think it plainly apparent that the limitations

period set out in section 2255(f)(4) is unavailable to Anjulo-Lopez. See Johnson, 544

U.S. at 311. As such, the district court did not abuse its discretion in dismissing his

motion as untimely without an evidentiary hearing.

III. CONCLUSION

The decision of the district court is affirmed.

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