United States Court of Appeals
For the First Circuit
No. 09-1856
WILFREDO RAMOS-MARTÍNEZ,
Petitioner, Appellant,
v.
UNITED STATES OF AMERICA,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. José Antonio Fusté, U.S. District Judge]
Before
Boudin, Circuit Judge,
Souter,* Associate Justice,
and Selya, Circuit Judge.
Linda Backiel, by appointment of the court, for appellant.
Luke Cass, Assistant United States Attorney, with whom Rosa
Emilia Rodríguez-Vélez, United States Attorney, and Nelson Pérez-
Sosa, Assistant United States Attorney (Chief, Appellate Division),
were on brief, for appellee.
March 7, 2011
*
Hon. David H. Souter, Associate Justice (Ret.) of the Supreme
Court of the United States, sitting by designation.
SELYA, Circuit Judge. This case presents a question of
first impression in this circuit: Is the limitations period for
the filing of a federal prisoner's habeas petition under 28 U.S.C.
§ 2255(f) subject to equitable tolling? We answer this question
affirmatively, but — even though the petitioner raises a serious
question about whether he was unlawfully deprived of the services
of a qualified interpreter — we go no further; the record as it
stands is insufficient to allow us to resolve the merits of either
the equitable tolling claim or the substantive claims that underlie
the petition. Consequently, we vacate the order dismissing the
petition and remand for further proceedings.
I. BACKGROUND
We start by sketching the historical antecedents of this
appeal. On April 16, 2002, petitioner-appellant Wilfredo Ramos-
Martínez entered a straight guilty plea (i.e., a plea unencumbered
by any agreement) to a charge of conspiracy to distribute multi-
kilogram quantities of heroin, cocaine, and cocaine base (crack
cocaine). See 21 U.S.C. §§ 841(a)(1), 846. The change-of-plea
hearing took place before a visiting judge (Judge Carter). The
petitioner explained that he had very little formal education and
authorized his attorney to speak on his behalf. In response to a
direct request, he agreed that he would notify the court if he was
unable to understand any of its questions.
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After the petitioner had been questioned at some length
about his understanding of the proffered plea and its consequences,
his counsel, David Román, informed the court that the petitioner
"does not speak [E]nglish and this indictment is in [E]nglish."
Román declared that he was fluent in Spanish and, therefore, had
"explained all of it" to his client in Spanish. Notwithstanding
this aposematic disclosure, the court did not inquire further into
the petitioner's English language proficiency.
The record contains no indication that, prior to or
during the hearing, the court asked the petitioner if he needed the
services of an interpreter.1 Neither the docket nor the transcript
contains any notation showing that a court interpreter participated
in the hearing.2 Tellingly, the court's criminal minute sheet for
the hearing does not identify any interpreter in the space provided
for that information.
Some months passed before sentencing. By then, Judge
Carter had returned home, and Judge Laffitte presided.
The disposition hearing took place on November 4, 2002.
At that time, the petitioner requested "all the documents in the
1
In contrast, in a change-of-plea hearing held on that same
afternoon for one of the petitioner's codefendants, Maximo Salamo-
Olmeda, Judge Carter inquired pointedly about the defendant's
ability to communicate with the court without the help of an
interpreter.
2
In contrast, the record of the petitioner's sentencing
indicates that he was "provided with the assistance of the Official
Court Interpreter" for that proceeding.
-3-
case." He claimed that he repeatedly had asked Román to procure
these papers, but to no avail. He also signaled his intention to
file a section 2255 petition premised on Román's ineffective
assistance. The district court summarily rejected the petitioner's
entreaty and stated that it did not "find a scintilla, an iota of
evidence to conclude that Mr. Román was ineffective." The court
proceeded to sentence the petitioner to 480 months in prison.
The petitioner filed a pro se notice of appeal and
requested the appointment of counsel. Attorney José Franco-Rivera
ultimately appeared as the petitioner's appellate counsel.
In July of 2005, the petitioner wrote to the district
court requesting information about the status of his appeal. The
court provided the petitioner's attorney with a copy of this
letter. The record does not indicate what action (if any) counsel
may have taken.
A pro se motion to like effect was received by the
district court in August of 2005. The clerk was directed to notify
the petitioner of the status of his appeal. Within a matter of
weeks, we affirmed the conviction and sentence. United States v.
Ramos-Martínez, No. 02-2630 (Oct. 12, 2005) (unpublished order).
The conviction became final on January 10, 2006 (when the 90-day
period for seeking certiorari expired).
Within a month thereafter, the petitioner wrote to the
clerk of the district court about the cost of acquiring a
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transcript of his change-of-plea hearing. The court directed the
clerk to provide the petitioner with the requested information. It
is unclear whether that directive was implemented.
On March 27, 2007, the petitioner, acting pro se, filed
a motion to reduce his sentence. See 18 U.S.C. § 3582(c)(2). Due
to Judge Laffitte's retirement, the case was reassigned to Chief
Judge Fusté, who denied the sentence reduction motion. The
petitioner appealed pro se, and we affirmed the challenged order.
United States v. Ramos-Martínez, No. 07-1973 (Jan. 28, 2008)
(unpublished order).
Meanwhile, a series of other events were unfolding.
Although the record is scumbled, it appears that, at some point in
2005, the petitioner's mother paid a paralegal named José Rosado
(ostensibly an associate of the petitioner's appellate counsel)
several thousand dollars to assist in the preparation of a section
2255 petition. The precise nature of the agreement with Rosado is
not chronicled in the record, nor is it clear what (if anything)
Rosado did during 2005 and 2006. Prison records indicate that the
petitioner placed a plethora of telephone calls to Rosado during
October of 2006. These efforts were thwarted as of October 13,
2006, when the petitioner's calls to that number were blocked by
someone on the receiving end. The record contains no explanation
of why the calls were blocked. No section 2255 petition prepared
by Rosado was filed on the petitioner's behalf.
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On April 1, 2008, the petitioner, acting pro se, filed a
motion to vacate, set aside, or correct his sentence, pursuant to
28 U.S.C. § 2255. This petition alleged that his guilty plea had
been obtained in violation of the Due Process Clause because his
change-of-plea hearing was conducted without the assistance of an
interpreter and that, as a result, his plea was involuntary,
unintelligent, and unknowing. The petition further alleged that
both the petitioner's trial and appellate attorneys had provided
ineffective assistance through their respective failures to request
an interpreter and to identify the absence of an interpreter as an
issue on appeal. The petitioner filed companion motions seeking
(i) equitable tolling of the limitations period limned in the
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28
U.S.C. § 2255(f); (ii) leave to expand the record pursuant to Rule
7 of the Rules Governing Section 2255 Proceedings; (iii) an
evidentiary hearing pursuant to Rule 8; and (iv) permission to
institute the discovery processes generally available through Rule
6.
On April 16, 2008, the district court granted the motion
to expand the record. The expanded record contains evidence
regarding the events that transpired at the change-of-plea hearing,
documents establishing lockdown periods affecting facilities in
which the petitioner was incarcerated, information about his
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relationship with Rosado, and materials evidencing his limited
education and low proficiency in the English language.
After denying the petitioner's motions for discovery and
for an evidentiary hearing, the district court rejected the section
2255 petition. Ramos-Martínez v. United States, No. 08-1388, 2009
WL 1299563, at *4 (D.P.R. May 6, 2009). The court based its ruling
in material part on its appraisal of the protagonists who
participated in the change-of-plea hearing:
[A]s seasoned a judge as he is, Judge Carter
would not have proceeded to take a plea from a
defendant that could not communicate in
English. Similarly, David Román, Defendant's
lawyer, would not have allowed a non-English-
speaking defendant to stand before Judge
Carter without understanding the language of
the colloquy. We, therefore, find that
Petitioner was either able to speak English or
was assisted by an interpreter during the plea
colloquy.
Id. at *3. In the court's view, the transcript of the hearing
showed that the petitioner "answer[ed] several questions with full
sentences and never indicated that he could not understand the
proceedings." Id. The court concluded that "[a]lthough the court
would have done well to conduct a more thorough inquiry into
Petitioner's comprehension of English, the record does not
demonstrate that Petitioner had difficulty with English so as to
trigger the requirements of the Court Interpreters Act." Id. In
the process of reaching this conclusion, the court creatively
interpreted Román's statement that the petitioner did not speak
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English to mean that he "could not read and understand the
indictment, not that he could not comprehend the court
proceedings." Id. Having denied the petition on the merits, the
court effectively sidestepped the equitable tolling issue.
On May 26, 2009, the petitioner, again acting pro se,
filed a notice of appeal and a motion for a certificate of
appealability (COA). The district court declined to issue a COA.
The petitioner appealed that denial and, on December 10, 2009, we
granted a COA as to three issues: (i) whether, under principles of
equitable tolling, the section 2255 petition should be considered
timely; (ii) whether, assuming timeliness, the district court erred
in rejecting the petitioner's claim that his due process rights
were violated when the district court failed to furnish an
interpreter during his change-of-plea hearing; and (iii) whether,
assuming timeliness, the district court erred in rejecting the
petitioner's claim that his trial counsel's failure to request an
interpreter at the change-of-plea hearing amounted to ineffective
assistance. The COA delimits the frame of reference for this
appeal.
II. ANALYSIS
We divide our discussion into four segments. We begin
with the availability of equitable tolling.
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A. Availability of Equitable Tolling.
"Congress enacted 28 U.S.C. § 2255 as a substitute for
the traditional habeas remedy with respect to federal prisoners."
Trenkler v. United States, 536 F.3d 85, 96 (1st Cir. 2008). The
AEDPA establishes a one-year limitations period for habeas
petitions filed by prisoners in federal custody. 28 U.S.C.
§ 2255(f). In general, this period runs from "the date on which
the judgment of conviction becomes final." Id. § 2255(f)(1).
Where, as here, Supreme Court review is not sought, "a judgment of
conviction becomes final when the time expires for filing a
petition for certiorari contesting the appellate court's
affirmation of the conviction." Clay v. United States, 537 U.S.
522, 525 (2003). In a federal criminal case, a petition for a writ
of certiorari must be filed within 90 days of entry of the judgment
by a court of appeals. Sup. Ct. R. 13.1.
By this algorithm, the petitioner's conviction became
final on January 10, 2006. The one-year limitations period for
filing a section 2255 petition would, in the absence of tolling,
have expired one year later on January 10, 2007. No petition was
filed until April 1, 2008. Absent equitable tolling, then, the
petition was untimely.
Equitable tolling is a doctrine that "provides that in
exceptional circumstances, a statute of limitations 'may be
extended for equitable reasons not acknowledged in the statute
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creating the limitations period.'" Neverson v. Farquharson, 366
F.3d 32, 40 (1st Cir. 2004) (quoting David v. Hall, 318 F.3d 343,
345-46 (1st Cir. 2003)). The AEDPA does not make any explicit
reference to equitable tolling. Neither the Supreme Court nor this
court has conclusively resolved whether section 2255's limitations
period may be equitably tolled. We answer that question today.
Despite the lack of controlling precedent, we do not
write on a pristine page. The Supreme Court recently held that the
limitations period under a kindred AEDPA provision (28 U.S.C.
§ 2244(d)), which applies to federal habeas petitions filed by
prisoners in state custody, is subject to equitable tolling in
appropriate instances. Holland v. Florida, 130 S. Ct. 2549, 2560
(2010). In reaching this conclusion, the Court considered whether
the relevant statute of limitations is jurisdictional in nature,
whether it contains sufficiently emphatic indications to overcome
the presumption that equitable tolling applies, and whether the
availability of equitable tolling would undermine the statute's
fundamental purposes. Id. at 2560-62. In determining whether
section 2255's built-in limitations period is subject to equitable
tolling, we deem it appropriate to factor these same three integers
into the decisional calculus.
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To begin, section 2255(f)'s limitations period is couched
in language virtually identical to that of section 2244(d).3
Neither provision sets forth "'an inflexible rule requiring
dismissal whenever' its 'clock has run.'" Id. at 2560 (quoting Day
v. McDonough, 547 U.S. 198, 208 (2006)). We conclude, therefore,
that section 2255(f) is non-jurisdictional. See id.; Day, 547 U.S.
at 205; cf. Henderson v. Shinseki, 562 U.S. ___, slip op. at 8-9
(2011) (explaining that terms of statutory provision establishing
deadline for seeking Veterans Court review contain "no clear
indication that Congress wanted that provision to be treated as
having jurisdictional attributes").
When found in federal statutes, non-jurisdictional
limitations periods ordinarily are subject to a rebuttable
presumption that equitable tolling is available. Holland, 130 S.
Ct. at 2560. The Holland Court explained that this presumption is
strengthened "by the fact that 'equitable principles' have
traditionally 'governed' the substantive law of habeas corpus."
Id. (quoting Munaf v. Geren, 553 U.S. 674, 693 (2008)). This
rationale applies with undiminished force to section 2255
petitions.
3
In relevant part, section 2244(d)(1) prescribes that a "1-
year period of limitation shall apply to an application for a writ
of habeas corpus by a person in custody pursuant to the judgment of
a State court"; section 2255(f) indicates that a "1-year period of
limitation shall apply to a motion under this section."
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The Holland Court also acknowledged that because Congress
enacted the AEDPA subsequent to the Court's announcement of the
presumption in favor of equitable tolling, Congress likely was
aware that courts, when interpreting the AEDPA, would do so with
that presumption in mind. Id. at 2561. This reasoning counsels in
favor of the availability of equitable tolling under section
2255(f).
The similarities do not end there. Like section 2244(d),
the prescriptive period provided in section 2255(f) contains no
"unusually emphatic" language or reiterations that might tend to
rebut the presumption in favor of equitable tolling. See id.
(contrasting section 2244(d) with statutes at issue in United
States v. Beggerly, 524 U.S. 38 (1998), and United States v.
Brockamp, 519 U.S. 347 (1997)). Moreover, a one-year limitations
period is not especially long, and habeas corpus is a subject area
in which equitable principles may comfortably flourish. See id.
These considerations, which apply to both section 2244 and section
2255, strongly suggest the availability of equitable tolling. See
id.
Last — but surely not least — Holland informs our
examination of the AEDPA's basic objectives. There, the Court
concluded that allowing equitable tolling in appropriate
circumstances would not undercut the AEDPA's core principles. Id.
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at 2562. This conclusion is not altered when the focus shifts from
section 2244 to section 2255.
To say more on this issue would be supererogatory. Given
the compelling textual similarity and congruent purpose that
section 2244(d) and section 2255(f) share and the common heritage
of both provisions as part of the same statutory framework, we hold
that section 2255(f)'s one-year limitations period is subject to
equitable tolling in appropriate instances. This holding comports
with the reasoning of the Holland Court. It also brings this court
into line with ten other courts of appeals that have reached the
same conclusion. See United States v. Aguirre-Ganceda, 592 F.3d
1043, 1045 (9th Cir. 2010); Byers v. United States, 561 F.3d 832,
836 (8th Cir. 2009); United States v. Petty, 530 F.3d 361, 364 (5th
Cir. 2008) (per curiam); United States v. Gabaldon, 522 F.3d 1121,
1124 (10th Cir. 2008); Solomon v. United States, 467 F.3d 928, 935
(6th Cir. 2006); United States v. Sosa, 364 F.3d 507, 512 (4th Cir.
2004); Baldayaque v. United States, 338 F.3d 145, 150 (2d Cir.
2003); United States v. Marcello, 212 F.3d 1005, 1010 (7th Cir.
2000); Sandvik v. United States, 177 F.3d 1269, 1271 (11th Cir.
1999) (per curiam); Miller v. N.J. State Dept. of Corr., 145 F.3d
616, 619 n.1 (3d Cir. 1998).
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B. Applying Equitable Tolling.
That equitable tolling is available under section 2255(f)
does not mean that it applies here. We begin this latter inquiry
with general principles.
A court's power to invoke equitable tolling must be
exercised case by case. See Holland, 130 S. Ct. at 2563; Baggett
v. Bullitt, 377 U.S. 360, 375 (1964). "To preserve the usefulness
of statutes of limitations as rules of law, equitable tolling
should be invoked only 'sparingly.'" Farquharson, 366 F.3d at 42
(quoting Irwin v. Dep't of Vet. Affairs, 498 U.S. 89, 96 (1990)).
In order to assuage this concern, we have recognized that equitable
tolling is available only in cases in which "circumstances beyond
the litigant's control have prevented [her] from promptly filing."
Cordle v. Guarino, 428 F.3d 46, 48 (1st Cir. 2005) (alteration in
original) (quoting Lattimore v. Dubois, 311 F.3d 46, 55 (1st Cir.
2002)). These background principles inform our inquiry.
"A habeas petitioner bears the burden of establishing the
basis for equitable tolling." Riva v. Ficco, 615 F.3d 35, 39 (1st
Cir. 2010) (citing Holland, 130 S. Ct. at 2562). To carry this
burden, the petitioner must show "'(1) that he has been pursuing
his rights diligently, and (2) that some extraordinary circumstance
stood in his way' and prevented timely filing." Holland, 130 S.
Ct. at 2562 (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418
(2005)); see Trapp v. Spencer, 479 F.3d 53, 61 (1st Cir. 2007)
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(listing additional factors that may influence whether or not to
grant equitable tolling).
Because equitable decisions are made on a case-by-case
basis, the determination of whether to toll a limitations period
for equitable reasons is fact-intensive. See Holland, 130 S. Ct.
at 2565. In the case at hand, the record is sparse concerning a
number of salient facts relevant to equitable tolling. Given these
gaps, we think it unwise to attempt to resolve the petitioner's
equitable tolling claim here and now. To illustrate why we have
reached this conclusion, we highlight some areas in which further
development of the facts would prove useful.
Equitable tolling normally requires a finding of
extraordinary circumstances. See, e.g., Riva, 615 F.3d at 39. In
this case the extraordinary circumstances limned by the petitioner
involve, among other things, the alleged failure of Rosado (a
paralegal purportedly associated with the petitioner's appellate
counsel and paid by the petitioner's family to prepare a section
2255 petition) to do what he had agreed to do. "[S]ometimes,
professional misconduct [may] . . . amount to egregious behavior
and create an extraordinary circumstance that warrants equitable
tolling." Holland 130 S. Ct. at 2563; accord United States v.
Martin, 408 F.3d 1089, 1093 (8th Cir. 2005); Baldayaque, 338 F.3d
at 152; United States v. Wynn, 292 F.3d 226, 230 (5th Cir. 2002).
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Here, however, the matter is not clear-cut. Cases in
which professional failings have been judged sufficiently egregious
to warrant a finding of extraordinary circumstances typically have
involved misconduct by attorneys. See, e.g., Martin, 408 F.3d at
1093-96; Spitsyn v. Moore, 345 F.3d 796, 801 (9th Cir. 2003).
Rosado is only a paralegal — but a paralegal who may have been
working with (or for) an attorney. On the record before us, the
relationship between Rosado and the lawyer is opaque. Better
information on this point might well be significant in the
equitable tolling calculus.
To compound the problem, the record does not speak with
any degree of clarity to the specifics of Rosado's engagement by
the petitioner. While the record indicates that the petitioner's
relatives paid Rosado a substantial sum of money to prepare a
section 2255 petition, it lacks any detail about the parameters of
the relationship. The record does confirm that Rosado failed to
respond to a myriad of telephone calls that the petitioner placed
to him and that no Rosado-prepared petition was ever filed on the
petitioner's behalf. The gaps, however, leave unanswered serious
questions about the reasonableness vel non of the petitioner's
reliance on Rosado and the likelihood that he was misled.
Equitable tolling is not intended as a device to rescue
those who inexcusably sleep upon their rights. A habeas petitioner
who seeks the balm of equitable tolling must show that he has
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exercised "reasonable diligence" to protect his own interests.
Holland, 130 S. Ct. at 2565 (citing Lonchar v. Thomas, 517 U.S.
314, 326 (1996)). Be that as it may, this requirement does not
demand a showing that the petitioner left no stone unturned.
Baldayaque, 338 F.3d at 153.
On this question, too, paucity of information is a matter
of concern. Applying such a standard necessitates that an
inquiring court have a sufficient factual basis to understand what
choices the petitioner had and how he made those choices. See id.
The record here is too underdeveloped to allow this sort
of reasoned analysis. We can tell that the petitioner made some
efforts both to file a petition and to keep tabs as to what
progress was being made. For example, he tried to obtain a
transcript of his change-of-plea hearing, placed repeated telephone
calls to Rosado, and submitted numerous pro se filings. But these
efforts represent only part of the picture, and the record is
silent as to when and by what means the petitioner became aware
that Rosado was not performing his assigned task. What the
petitioner knew and when he knew it are important in assessing his
diligence. See, e.g., Barreto-Barreto v. United States, 551 F.3d
95, 101 (1st Cir. 2008). On this threadbare record, we simply
cannot answer these questions.
In addition, both "extraordinary circumstances" and
"reasonable diligence" depend on the totality of the circumstances.
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See Trapp, 479 F.3d at 61. In attempting to assemble the
components of that totality, the petitioner points to
considerations such as his limited education and lack of
familiarity with the English language, the frustration of his
efforts to learn English while incarcerated so that he could
prepare his own petition, prison transfers and isolation due to
lockdowns during the period between November of 2007 and February
of 2008, and the like. Although any one of these factors, standing
alone, may be insufficient to excuse a failure to file a timely
habeas petition, see, e.g., Akins v. United States, 204 F.3d 1086,
1089-90 (11th Cir. 2000) (declining to apply equitable tolling
where petitioner was subject to lockdown but record indicated he
had the opportunity to file his motion when lockdown was not in
place), the whole may be greater than the sum of the parts. The
record is exiguous as to most of these points and, therefore,
fuller development of them is desirable.
C. The Substantive Claims.
The district court did not dwell on the dearth of
information about equitable tolling but, rather, elected to
sidestep that issue and resolve the case on the merits. This
pragmatic approach can be utilitarian in some cases; a court
occasionally may avoid addressing an enigmatic threshold issue by
cutting directly to the merits. See Lambrix v. Singletary, 520
U.S. 518, 525 (1997) (disclaiming any intention "to suggest that
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the procedural-bar issue must invariably be resolved first" in a
habeas case, and explaining that "[j]udicial economy might counsel"
going directly to the merits if the merits were easily resolvable
against the petitioner); Pough v. United States, 442 F.3d 959, 965
(6th Cir. 2006) (explaining that issue of timeliness of section
2255 motion may be bypassed and claims decided against petitioner
on the merits); cf. Pearson v. Callahan, 129 S. Ct. 808, 818 (2009)
(admonishing that judges "should be permitted to exercise their
sound discretion in deciding which of the two prongs of the
qualified immunity analysis should be addressed first in light of
the circumstances in the particular case at hand"). But using this
approach requires, at a bare minimum, that the outcome on the
merits is both clear and favorable to the party advocating the
threshold issue. See Lambrix, 520 U.S. at 525.
If it were obvious that the petition lacked merit,
bypassing the equitable tolling inquiry would be a practical
solution. That is not the case here. The petition raises serious
constitutional questions, and the scanty record does not permit an
authoritative resolution of those questions.
We need not wax longiloquent. For now, it suffices to
say that the same types of informational shortfalls that counsel
against deciding the equitable tolling question on this chiaroscuro
record likewise counsel against deciding the constitutional claims
without better development of the facts. We explain briefly.
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The Court Interpreters Act, 28 U.S.C. § 1827(d)(1)(A),
provides that a judge must arrange for the services of a qualified
court interpreter if a criminal defendant "speaks only or primarily
a language other than the English language." Once the court is on
notice that a defendant's understanding of the proceedings may be
inhibited by his limited proficiency in English, it has a duty to
inquire whether he needs an interpreter. See, e.g., United States
v. Zaragoza, 543 F.3d 943, 949 (7th Cir. 2008). In the case at
hand, both of the petitioner's substantive claims — deprivation of
due process and ineffective assistance of counsel — require an
examination of whether the petitioner was entitled to, offered, or
actually received the services of an interpreter at his change-of-
plea hearing.
On the incomplete record that was available to the
district court, it could not answer these crucial questions with
any degree of assurance. The court's attempt to answer them,
quoted supra at 7, is nothing more than conjecture. By like token,
the court's facile reinterpretation of counsel's warning that the
petitioner did not understand English is unconvincing. Speculating
about such basic facts as whether Judge Carter informed the
petitioner of his right to an interpreter, whether the petitioner's
proficiency in the English language was so limited that an
interpreter was needed, and whether the petitioner waived any
entitlement is not a substitute for factfinding.
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D. Next Steps.
To this point, we have explained that the record as it
stands is too tenebrous to permit a reasoned answer to any of the
three questions framed in the COA. A further question remains:
Where do we go from here?
A habeas petitioner has the burden of adducing facts
sufficient to show both that his petition should be treated as
timely and that he is entitled to relief. See, e.g., Riva, 615
F.3d at 39 (stating that "habeas petitioner bears the burden of
establishing the basis for equitable tolling"); Gonzales-Soberal v.
United States, 244 F.3d 273, 277 (1st Cir. 2001) (explaining that
petitioner pressing ineffective assistance claim in section 2255
motion is required to establish entitlement to relief by
preponderance of the evidence). But the situation in this case is
highly idiosyncratic; the issues are tangled and the events at
issue span many years. Moreover, the petitioner persistently
requested an evidentiary hearing to develop the facts relevant to
his claims. Those requests were uniformly denied.
An evidentiary hearing may be available in connection
with a section 2255 petition. See Rule 8, Rules Governing Section
2255 Proceedings. While a petitioner "is not entitled to an
evidentiary hearing as a matter of right," David v. United States,
134 F.3d 470, 477 (1st Cir. 1998), an evidentiary hearing sometimes
serves the ends of justice. We think that this is such a case.
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The circumstances are exceptional; and the situation is complicated
by the nuanced nature of the questions presented, the inherent
difficulty of obtaining reliable information needed to answer those
questions, the petitioner's limited proficiency in the English
language, the absence of counsel during several critical periods,
the sheer passage of time, and the participation of multiple
district judges.4
Habeas courts should be guided by equitable principles.
See Holland, 130 S. Ct. at 2560. Here we believe that the fairest
and best way to proceed is to direct the district court, on remand,
to hold an evidentiary hearing. Such a hearing will help to
provide a fuller picture of the relevant facts and the tangled
issues.
III. CONCLUSION
We need go no further. We decline to answer any of the
questions posed in the COA due to the pervasive uncertainty that
dogs the record. Accordingly, we vacate the judgment and remand to
the district court for further development of the record with a
view toward determining whether the petition is timely by reason of
equitable tolling and, if so, whether the petitioner is entitled to
4
Rule 4(a) of the Rules Governing Section 2255 Proceedings
contemplates that the same judge who handles a petitioner's trial
ordinarily should review his section 2255 petition. Here, however,
through no fault of either the petitioner or the district court, a
series of different judges were involved at different stages of the
change-of-plea, sentencing, and post-conviction section 2255
proceedings.
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relief on the merits of his substantive claims. We take no view as
to the appropriate resolution of any of these matters on remand.
Vacated and remanded.
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