United States v. Flores

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 96-41188

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ROMEO TRINIDAD FLORES, JR.,

Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of Texas

March 5, 1998

Before GARWOOD, DUHÉ and DeMOSS, Circuit Judges.

GARWOOD, Circuit Judge:

Defendant-appellant Romeo Trinidad Flores, Jr. (Flores)

appeals the district court’s denial of his motion to vacate his

sentence under 28 U.S.C. § 2255. We affirm.

Facts and Proceedings Below

On August 29, 1991, Flores was convicted following a jury

trial of conspiring to possess with intent to distribute in excess

of 1,000 kilograms of marihuana in violation of 21 U.S.C. §§ 846,
841(a)(1), and 841(b)(1)(A).1 On direct appeal, this Court

reversed Flores' conviction due to the erroneous admission of his

codefendant’s grand jury testimony. United States v. Flores, 985

F.2d 770 (5th Cir. 1993). In his second jury trial, Flores was

again convicted. In an opinion dated November 3, 1994, we affirmed

the second conviction. United States v. Flores, 40 F.3d 385 (5th

Cir. 1994) (unpublished table decision).

On April 24, 1996, the Anti-terrorism and Effective Death

Penalty Act of 1996 (hereinafter "AEDPA" or "Act") was signed into

law.2 Most pertinent to Flores, section 105 of the Act amended 28

U.S.C. § 2255 to include a one-year period of limitations.3

1

A detailed account of the offense and the circumstances surrounding
Flores’ arrest and trial can be found in United States v. Flores,
985 F.2d 770, 771-74 (5th Cir. 1993).
2

Pub.L. No. 104-132, 110 Stat. 1214.
3

110 Stat. 1220 (codified at 28 U.S.C. § 2255 (Supp. 1997)). The
amendment, as codified, reads:

“A 1-year period of limitation shall apply to a
motion under this section. The limitation 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 making such a motion 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

2
Approximately four months after the enactment of the AEDPA, Flores

filed a pro se motion to vacate his sentence pursuant to 28 U.S.C.

§ 2255, asserting numerous errors including ineffective assistance

of counsel, outrageous government misconduct, violation of the

Jenks Act, a Brady violation, and error in the jury instructions.4

In response, the government filed a motion to dismiss, or in

the alternative, for summary judgment, arguing both that Flores’

motion was procedurally barred by the one-year period of limitation

contained in section 2255 as amended by AEDPA (but there

acknowledging that a Department of Justice “policy letter”

construed the Act’s limitations period to commence to run on its

effective date) and that the allegations in Flores’ motion were

fatally conclusory and lacked any evidentiary support. The

district court granted summary judgment in favor of the government,

finding Flores' contentions to be "entirely conjectural and

unsupported by anything in the record." Flores filed a timely

notice of appeal, and a certificate of appealability (COA) was

granted to permit Flores’ appeal to this Court.5

applicable to cases on collateral review; or
(4) the date on which the facts supporting the claim or
claims presented could have been discovered through the
exercise of due diligence.”
4

Flores filed his motion on or about August 19, 1996.
5

The COA specifically authorized appeal of two issues. First,
"whether a 28 U.S.C. § 2255 motion is time barred when it is filed
(1) within one year following the effective date of the Anti-

3
 Discussion

The district court did not address the limitations question,

denying the motion on other grounds. However, because we may

affirm on any grounds that were urged below, we address as a

threshold issue whether Flores’ motion is time barred under the

limitations period of the amended section 2255.

The applicability of the limitations provision to motions

filed after the enactment of the AEDPA but attacking convictions

which became final prior thereto is a question of first impression

in this Circuit.6 Those of our sister circuits that have

considered the issue7 have all held that such petitioners must be

terrorism and Effective Death Penalty Act of 1996 (AEDPA), i.e.,
April 24, 1996, but (2) more than one year after the judgment of
conviction became final, and (3) the date on which the judgment of
conviction became final was either (a) more than one year before
the effective date of AEDPA, as is the case with the instant
motion, or (b) less than one year before the effective date of
AEDPA." Appeal of a second issue, whether the district court
adequately stated its reasons for dismissing the motion, was also
authorized in the COA.
6

See, e.g., United States v. Shunk, 113 F.3d 31 (5th Cir. 1997),
where we acknowledged the difficulty involved in determining the
potential retroactive application of the limitations period,
stating that, "[n]eedless to say, it presents important and
difficult issues. And, there are obvious and quite forceful
arguments against its application." Id. at 34. We declined to
reach the question in that case, however, because neither side had
presented it on appeal. Id.
7

The AEDPA contains two nearly identical limitations provisions.
Section 105(2) amends 28 U.S.C. § 2255, which is the provision in
question in this case. A second, virtually identical limitations
period is contained in section 101, which amends 28 U.S.C. § 2244

4
accorded a reasonable time after the enactment of the AEDPA within

which to pursue collateral relief.8 Perhaps the seminal case that

came to this conclusion was Lindh v. Murphy, 96 F.3d 856 (7th Cir.

1996), which determined that prisoners’ reliance interests dictated

that no collateral attack filed within one year of the AEDPA’s

enactment would be dismissed as time barred under the AEDPA

limitation periods. Id. at 866. The Supreme Court granted

(relating to attacks on state court convictions or sentences) to
impose a one-year period of limitations on petitions made under
that section.
Because of the similarity of the actions under sections 2254
and 2255, they have traditionally been read in pari materia where
the context does not indicate that would be improper. See, e.g.,
McFarland v. Scott, 114 S.Ct. 2568, 2573 (1994) (noting that the
"terms ‘post conviction’ and ‘habeas corpus’ also are used
interchangeably in legal parlance to refer to proceedings under §
2254 and § 2255" and accordingly statutes providing for post-
conviction relief should, unless context mandates otherwise, be
read in pari materia.) Thus, although the application of the
limitations period in the amended section 2255 is in question in
the case sub judice, in our discussion below we refer to cases
involving section 2254 as relevant to our analysis, and we
similarly do not adhere to the linguistic "motion/petition"
distinction in referring to the filing that a prisoner makes to
begin proceedings under sections 2255 and 2254 (technically, a
pleading filed under section 2255 is referred to as a "motion,"
while one filed under section 2254 is a "petition").
8

See, e.g., United States v. Simmonds, 111 F.3d 737, 745-46 (10th
Cir. 1997) ("[W]e hold application of the new time period to
[petitioner’s] § 2255 motion without first affording him a
reasonable time to bring his claim impermissibly retroactive.");
Lindh v. Murphy, 96 F.3d 856, 866 (7th Cir. 1996), rev’d on other
grounds, 117 S.Ct. 2059 (1997) (holding that habeas petitioners
have a "reasonable post-amendment time to get litigation
underway"); Calderon v. United States District Court for the
Central District of California, 128 F.3d 1283, 1287 (9th Cir. 1997)
(same with respect to section 2254 petitions); Peterson v. Demskie,
107 F.3d 92, 93 (2d Cir. 1997) (same).

5
certiorari in Lindh and reversed on a separate issue.9 Lindh v.

Murphy, 117 S.Ct. 2059 (1997). Although the Court did not

specifically address the limitation provisions, or the Seventh

Circuit’s interpretation of it in Lindh, it did clarify the

appropriate construction and temporal application of Title I of the

Act, which contains these provisions. Thus, although Lindh does

not provide an answer to the question before us, it does help to

define the appropriate inquiry.

It is axiomatic that the touchstone of statutory construction

is legislative intent. Unfortunately, as is often the case,

Congress’s intent as to the appropriate temporal application of the

limitation provisions is neither apparent on the face of the

statute nor otherwise unambiguously expressed. As the Supreme

Court noted in Lindh, the AEDPA is unclear in a number of important

respects, including the temporal reach of several provisions.10 In

resolving the ambiguity as to the temporal reach of the AEDPA

habeas amendments in general, the Court stated that "[i]n

9

The issue in the Supreme Court was whether certain sections of
Title I of the AEDPA would apply to cases that were pending at the
time of the AEDPA’s enactment. The Supreme Court held that they
did not. Lindh, 117 S.Ct. at 2063. This specific holding is only
tangentially relevant to our decision in this case, so we do not
discuss it at length.
10

See Lindh, 117 S.Ct. at 2068 ("All we can say is that in a world of
silk purses and pigs’ ears, the Act is not a silk purse of the art
of statutory drafting.").

6
determining whether a statute’s terms would produce a retroactive

effect, . . . and in determining a statute’s temporal reach

generally, our normal rules of construction apply." Lindh, 117

S.Ct. at 2063.

We have interpreted Lindh as articulating a generally-

applicable "analysis governing the temporal reach of newly enacted

legislation." Williams v. Cain, 117 F.3d 863, 864 (5th Cir. 1997).

As the Supreme Court stated in Lindh, and we reiterated in

Williams, "[i]n the absence of a plain statement of the

legislature’s intent that a statute be applied retroactively, a

court must ask whether normal rules of statutory construction

suggest that a new provision applies to the case before it."

Williams, 117 F.3d at 864 (citing Lindh, 117 S.Ct. at 2063-64).

Thus, we apply the traditional rules of statutory construction to

the provision before us in determining its temporal reach.

In applying legislatively amended periods of limitation, we

have typically construed them as "govern[ing] the secondary conduct

of filing suit, not the primary conduct of the [parties]."11 As a

11

St. Louis v. Texas Worker’s Compensation Commission, 65 F.3d 43, 46
(5th Cir. 1995). Similarly, it is often said that statutes of
limitation go to matters of remedy rather than to fundamental
rights. See, e.g., Chase Securities Corp. v. Donaldson, 65 S.Ct.
1137, 1142 (1945) ("This Court, . . . adopted as a working
hypothesis, as a matter of constitutional law, the view that
statutes of limitation go to matters of remedy, not to destruction
of fundamental rights."); Singer, Statutes and Statutory
Construction § 41.09 (5th Ed. 1993) ("[s]tatutes of limitation are
generally held to relate to remedies rather than rights") (footnote

7
consequence, we normally apply the statute of limitation that was

in effect at the time of the filing of the suit. We recently took

this approach in St. Louis v. Texas Worker’s Compensation

Commission, 65 F.3d 43 (5th Cir. 1995). In St. Louis, we

considered the issue of whether application of a limitations period

that was enacted prior to the filing of suit but subsequent to the

conduct giving rise to the suit was appropriate and permissible.

Id. at 45-47. We held that the shorter, amended limitations period

governed and, consequently, that the action was time barred. Id.

at 48. We reasoned that there was no inequity in applying the new

limitations period because the plaintiff had specific notice of the

amended period. Id. at 44. And although the time within which the

plaintiff had to file was significantly reduced,12 the shortened

omitted).
Consequently, the canon of statutory construction mandating a
presumption against retroactivity has been said to apply with less
force, or not at all, to changes in limitations periods. As stated
in one text: "[S]tatutes relating to remedies or modes of
procedure, which do not create new or take away vested rights, but
only operate in furtherance of the remedy or confirmation of such
rights, do not normally come within the legal conception of a
retrospective law, or the general rule against the retrospective
operation of statutes." 73 Am.Jur.2d Statutes § 354 (1974)
(footnote omitted).
12

The claimed acts of discrimination occurred in May 1991. In
November 1991, the limitations period was shortened from two years,
running from the time of the discrimination, to ninety days from
the time the plaintiff received notice of his right to sue from the
Equal Employment Opportunity Commission. St. Louis, 65 F.3d at 44-
45. Plaintiff received his right to sue letter in July 1992. The
letter advised him he should file suit not later than ninety days
after its receipt. However, he did not file his suit until May

8
period still allowed the plaintiff reasonable time within which to

pursue his claim in court.13

Although our general rule, as stated in St. Louis, is to apply

an amended period of limitations to all suits filed after the

effective date of amendment, such application is subject to at

least one restriction. This constraint was expressed by the

Supreme Court in Wilson v. Iseminger, 22 S.Ct. 573, 575 (1902),

where the Court stated:

"It may be properly conceded that all statutes of
limitation must proceed on the idea that the party has
full opportunity afforded him to try his right in the
courts. A statute could not bar the existing rights of
claimants without affording this opportunity; if it
should attempt to do so, it would not be a statute of
limitations, but an unlawful attempt to extinguish rights
arbitrarily, whatever might be the purport of its
provisions."

The Court went on to state that “[i]t is essential that such

statutes allow a reasonable time after they take effect for the

commencement of suits upon existing causes of action." Id. at 575.

1993.
13

Id. at 45. See also note 12, supra. In St. Louis, we also stated
that "true retroactivity" was not really an issue, because the
amended statue of limitations was applied only to the prospective
event of plaintiff’s filing suit. Id. at 46. We specifically
declined to comment on whether the limitations period were to be
applied to cases that had already been filed at the time of the
amendment. Id. at 46 n.13. Presumably, under our precedents, this
would have raised retroactivity concerns. However, we need not
confront that issue with respect to the limitations period in the
case at bar because the Supreme Court’s holding in Lindh forbids
application of the limitations period to cases "pending" on the
AEDPA’s effective date. Lindh, 117 S.Ct. at 2063.

9
 If literally and mechanically applied, the statutory provision

here in question would have precisely this prohibited effect: any

prisoner whose judgment of conviction had become final more than

one year prior to the enactment of the AEDPA would have been barred

from seeking collateral relief as of the moment the Act was signed

into law.14 Accordingly, such a construction would run afoul of the

"essential" principle requiring that a "reasonable time" be allowed

before the courthouse doors are thus retroactively shut upon a

claim.15 In the absence of any indication that Congress intended

the limitations period to apply in such a harsh manner,16 we join

the majority of circuits in holding that prisoners must be accorded

14

It should be noted that we are speaking in general terms. The
limitations provision does contain certain exceptions to the one-
year period. However, these exceptions are relatively narrow and
likely would not be of any aid to the majority of potential habeas
petitioners.
15

Although it might be argued that this principle is one of
constitutional dimensions, we emphasize that we apply it here as a
jurisprudential rule of statutory construction, and do not address
the question of whether the provision would be constitutional if
otherwise applied.
16

As noted above, we have been unable to discern any specific
legislative intent as to the temporal application of the Act’s
limitations period. We agree with the Tenth Circuit that "there is
no indication Congress intended to foreclose prisoners who had no
prior notice of the new limitations period from bringing their §
2255 motions" immediately upon the AEDPA’s enactment. United States
v. Simmonds, 111 F.3d 737, 745 (10th Cir. 1997). We have reviewed
both the statute and its legislative history and found no evidence
that Congress contemplated the immediate application of this
provision to prisoners without giving them a "reasonable post-
amendment time to get litigation underway." Lindh, 96 F.3d at 866.

10
a reasonable time after the AEDPA’s effective date within which to

file petitions for collateral relief under section 2255.17

We next turn to the question of what constitutes a "reasonable

time" in this context. The majority of circuits that have

addressed this question have adopted the bright-line rule that one

year, running from the effective date of the AEDPA, constitutes a

reasonable time. The Second Circuit, in contrast, has adopted an

ad hoc approach to determining whether a particular petitioner

filed within a reasonable time.18 In determining what amount of

time should be deemed "reasonable" under the law of this Circuit,

we apply——in the particular circumstance of the AEDPA’s one-year

limitation period——a rule of statutory construction that has been

proposed for the resolution of such an issue. One of the earliest

discussions of this rule is found in the case of Culbreth v.

Downing, 28 S.E. 294 (N.C. 1897), where the court determined that

17

See, e.g., United States v. Simmonds, 111 F.3d 737, 745-46 (10th
Cir. 1997); Lindh v. Murphy, 96 F.3d 856, 866 (7th Cir. 1996),
rev’d on other grounds, 117 S.Ct. 2059 (1997); Calderon v. United
States District Court for the Central District of California, 128
F.3d 1283, 1287 (9th Cir. 1997); Peterson v. Demskie, 107 F.3d 92,
93 (2d Cir. 1997).
18

See Peterson v. Demskie, 107 F.3d 92 (2d Cir. 1997), where the
court stated that "[i]n circumstances like Peterson’s, where a
state prisoner has had several years to contemplate bringing a
federal habeas corpus petition, we see no need to accord a full
year after the effective date of the AEDPA." Id. at 93. The court
went on to say that "[a]t the same time, we do not think that the
alternative of a ‘reasonable time’ should be applied with undue
rigor." Id.

11
an amended statute of limitations did not provide claimants a

reasonable time within which to protect their rights, and

consequently was faced with the same question that we must now

resolve. In Culbreth, the court reasoned that an ad hoc approach

was not appropriate, stating that:

"This rule leaves open the question in each case, what is
a reasonable time? And that is objectionable because it
is attended with uncertainty in the minds of litigants
and the profession. We therefore hold that a reasonable
time shall be the balance of the time unexpired according
to the law as it stood when the amending act is passed,
provided that it shall never exceed the time allowed by
the new statute." Id. at 296.

We find that, as applied to the AEDPA’s one-year limitation period,

this rule appropriately seeks to protect the reliance interests of

affected parties without contravening the legislative intent

underlying the statute.

This Court applied a similar approach in Hanner v.

Mississippi, 833 F.2d 55 (5th Cir. 1987). There, we faced a

situation analogous to that presented in the present case. The

Supreme Court in Wilson v. Garcia, 105 S.Ct. 1938 (1985), had

concluded, as a matter of statutory construction, that the most

appropriate limitations period for all suits brought under 42

U.S.C. § 1983 was the general period that would be applicable to a

personal injury suit in the particular state where the section 1983

case had been brought. Id. at 1946-48. This had the practical

effect in Mississippi of drastically reducing (from six years to

only one year) the applicable period of limitations for section

12
1983 claims that were in the nature of a wrongful death tort claim.

Hanner, 833 F.2d at 58. We understood the Supreme Court precedents

as mandating that the "new statute of limitations should not be

mechanically applied to bar claims," but rather that "plaintiffs

whose causes of action accrued before any change in the law was

indicated must be afforded a reasonable time within which to bring

their actions." Id. at 57. Thus, we were faced with reconciling

the potential application of the two periods, while according

plaintiffs a "reasonable time." In Hanner, we held that in cases

where the Wilson decision had significantly decreased the

applicable limitations period, "the appropriate limitations period

shall be either (1) the longer pre-Wilson period, commencing at the

time the action accrued, or (2) the post-Wilson one-year period,

commencing with the date of the Wilson decision, whichever expires

first." Id. at 59. We conclude that this approach is appropriate

in determining the "reasonable time" to be accorded under the

AEDPA.19

In the present context, this approach results in a very simple

19

We emphasize here, as we did in Hanner, that this rule will not
always be the appropriate one. It is for Congress to legislate
limitation periods, and great deference is shown to their authority
in this area when their intent is clear or when the result of
applying the new limitations period is not manifestly unjust.
See Hanner, 833 F.2d at 58 & n.6. Here, as in Hanner, "the one-
year period’s comparative ease of administration, consistency, and
predictability becomes decisive in its favor over a ‘reasonable
time’ approach." Id. at 58 n.6.

13
outcome. Because there was no set time limit for seeking post-

conviction relief before the AEDPA was enacted, the one-year AEDPA

limitations period will always be the shorter of the two

potentially applicable periods. Consequently, application of this

approach results in the holding that petitioners attacking

convictions or sentences which became final prior to the AEDPA’s

effective date will be accorded the one-year post-AEDPA period,

commencing on the Act’s effective date, within which to file for

section 2255 relief. We thus join the Seventh, Ninth, and Tenth

Circuits in holding that one year, commencing on April 24, 1996,

presumptively constitutes a reasonable time for those prisoners

whose convictions had become final prior to the enactment of the

AEDPA to file for relief under 28 U.S.C. § 2255.20 Because Flores

filed his motion on August 19, 1996, his motion is timely, and we

proceed to discuss its merits.

In his extensive motion and supplementary pleadings, Flores

20

At this time we note, but do not address, a problem that has been
recognized by several other courts. The language of section 105 of
the AEDPA states that the one-year limitations period shall run
from "the date on which the judgment of conviction becomes final."
110 Stat. 1220. It is unclear whether this date should be
construed as the date that judgment issues from the highest court
to hear the case, or whether it should be interpreted as the
expiration of the time for seeking any further review. See United
States v. Calderon, 128 F.3d 1283, 1286 n.2 (9th Cir. 1997). As
the case before us does not require resolution of this question, we
leave it for another day. We also note here that our holding in
this case in no way affects the power of district courts to dismiss
petitions for collateral relief on the basis of unreasonable and
prejudicial delay under Rule 9(a).

14
makes numerous and varied assertions of error. In light of Flores’

pro se status, we have construed his claims generously, and find

that his pleadings are fairly summarized as alleging that he

received ineffective assistance of counsel, that "outrageous

government conduct" prejudiced his trial, that the prosecution

failed to divulge evidence as required by Brady v. Maryland, 83

S.Ct. 1194 (1963),21 that the trial court judge made improper

remarks to the jury,22 and that the jury charge in his trial was

unconstitutional.

With respect to his claim of ineffective assistance of

counsel, Flores fails to make particularized allegations or to

identify probative evidence in the record tending to support his

allegations. Having reviewed the record, we find no evidence

tending to support Flores’ claim, and accordingly find it to be

fatally conclusory and without merit. Flores bases his Jenks Act

and Brady claims primarily on the failure of the government to

reveal that one of their witnesses was possibly subject to

21

Flores also claims that the failure to provide exculpatory
information that gives rise to his Brady claim also violated the
Jenks Act. 18 U.S.C. § 3500. We find no support in the record or
in Flores’ motion for the claim that the government improperly
withheld evidence and therefore do not treat the Jenks Act claim
separately.
22

Flores also claims that the district judge should have recused
himself due to bias. Flores, however, points to no substantial
evidence supporting this claim, and upon review of the entire
record, this Court is unable to find any.

15
deportation due to a prior criminal conviction, asserting that this

information could have been used to impeach the witness. Flores,

however, has failed to point to anything indicating that this

information was in the possession of the prosecution. In addition,

it appears that the information Flores complains was suppressed by

the government was at least partially developed during cross-

examination. Finally, with respect to his claims of "outrageous

government conduct," improper remarks made by the judge, and

unconstitutional jury instructions, we have reviewed the record for

evidence supporting these allegations, and find none.

In sum, upon reviewing the entire record, we find, as did the

court below, that to the extent that Flores’ allegations state

cognizable grounds for relief, his claims are conclusory and wholly

unsupported by any probative evidence or affidavits in the record.23

23

Moreover, most of Flores’ claims are procedurally barred and there
has been no showing of cause for the procedural default or that
manifest injustice would result from the bar.
We note that in the Certificate of Appealability, we granted
appeal both on the statute of limitations issue resolved above, as
well as on the issue of whether the district court sufficiently
stated its findings of fact and conclusions of law in granting
summary judgment. After having reviewed the record, and in
particular Flores’ several motions and the government’s responses,
we conclude that it is clear from the record that the district
court did not err in granting the government’s motion for summary
judgment. Although, as we have stated repeatedly, in denying
section 2255 motions, district courts should state the findings and
conclusions upon which their rulings are based, see United States
v. Daly, 823 F.2d 871, 872 (5th Cir. 1987), in this case Flores’
motion did not raise any legal or factual issues that should long
have detained a district court. However, we do note that in most
cases district courts should give specific reasons for their
rulings on such motions because explanation of their rulings is

16
For the foregoing reasons, we hold that Flores has not presented to

this Court any basis upon which we could conclude that the district

court erred in granting the government’s motion for summary

judgment. Accordingly, the judgment of the district court is

AFFIRMED.

always helpful, and occasionally indispensable, to appellate
review. Id. In the case at bar, the district court’s rather terse
opinion suffices to allow adequate appellate review, and a remand
for a fuller explanation would be pointless.

17