Case: 19-40486 Document: 00515949911 Page: 1 Date Filed: 07/23/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
July 23, 2021
No. 19-40486
Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Alberto Alaniz,
Defendant—Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:16-CV-162
Before Haynes, Graves, and Willett, Circuit Judges.
Haynes, Circuit Judge:
Alberto Alaniz was convicted of drug and money laundering offenses
and sentenced to over twenty years in prison. He did not file a direct appeal.
In subsequent filings under 28 U.S.C. § 2255, he asserted the reason for no
appeal was his counsel’s failure to file despite being asked to do so at
sentencing. Later, Alaniz separately claimed that his counsel also failed to
advise him of his appellate rights and failed to consult with him about the
virtues of an appeal over the course of his counsel’s representation. The
district court concluded that his failure-to-advise and failure-to-consult
claims did not relate back to his failure-to-file claim and were, as a result,
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No. 19-40486
untimely. We granted a certificate of appealability (“COA”) on the issue.
Because we likewise conclude that the claims relate to a different core of
operative facts, we now AFFIRM.
I. Background
In 2013, Alaniz pleaded guilty to conspiring to possess with intent to
distribute 1000 kilograms or more of marijuana and to conspiring to commit
money laundering. He was ultimately sentenced to concurrent sentences
totaling more than twenty years on those charges. At sentencing, the district
court advised Alaniz that he had the right to appeal, that he had two weeks to
do so, and that he could ask for a waiver of the costs of an appeal. No appeal
was filed.
Approximately a year later, Alaniz timely filed a pro se § 2255 motion
to set aside his sentence. He asserted numerous ineffective assistance claims,
including, as relevant here, a claim that his counsel had been ineffective for
failing to file an appeal. 1 Although Alaniz’s filings also cited some legal
authority about an attorney’s duty to advise a defendant about his appellate
rights and to consult with the defendant about those rights, Alaniz’s factual
allegations on the subject focused entirely on his counsel’s alleged failure to
file the appeal on his behalf even though, according to Alaniz, he specifically
asked his counsel to do so during sentencing.
After appointing him counsel, the district court ordered an evidentiary
hearing to address his failure-to-file claim. Some of the testimony at the
hearing related to the alleged failure to file an appeal. Specifically, Alaniz
testified that he had whispered to one of his attorneys at sentencing that he
1
Alaniz later filed what he labeled as a “supplemental” § 2255 motion that
similarly reiterated his claim that his counsel failed to file an appeal after he “specifically
requested” it.
2
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wished to appeal. But much of the testimony related to new factual
allegations, including his attorneys’ alleged failures over the entire course of
their representation to advise Alaniz of his appellate rights and to consult
with him concerning the merits of appealing.
Following the hearing, Alaniz submitted a post-hearing
memorandum. In that memorandum (unlike in his original filings), Alaniz
subdivided his ineffective assistance claim as to the appeal into three parts,
claiming that: (1) his attorneys failed to advise Alaniz of all of his appellate
rights, including his right to appointed counsel on appeal; (2) one of his
attorneys failed to file an appeal after Alaniz asked him to; and, (3) his
attorneys failed to consult with Alaniz regarding an appeal.
The district court first dismissed Alaniz’s failure-to-file claim because
Alaniz had not testified credibly as to his alleged request at sentencing;
accordingly, the district court ruled that his attorney never received “specific
instructions” from Alaniz about filing an appeal. (This factual determination
is not at issue here.) The district court then identified that Alaniz’s failure-
to-advise and failure-to-consult claims had been raised for the first time in
Alaniz’s post-hearing memorandum such that they were effectively attempts
to amend the original § 2255 filings to add new claims. See United States v.
Gonzalez, 592 F.3d 675, 678–79 (5th Cir. 2009) (per curiam) (noting that an
argument not originally raised in a § 2255 motion may be raised if the district
court grants leave to amend). Concluding that those claims did not relate
back to the original filings because they differed in both time and type from
the timely failure-to-file claim and that, as a consequence, they were untimely
(having been raised more than a year after the relevant date), the district
court denied Alaniz leave to amend to raise the claims. See 28 U.S.C.
§ 2255(f)(1). Accordingly, the district court denied the § 2255 motion and
dismissed the case. It also denied a COA on all claims.
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Alaniz timely appealed, moving for a COA from our court on the
grounds that that he believed reasonable jurists could debate two issues: the
first, whether his original § 2255 filings encompass failure-to-advise and
failure-to-consult claims; and the second, whether those claims relate back to
his original § 2255 motion such that they are not time-barred. We granted
Alaniz a COA as to the second issue only, specifically concluding that the
first issue did not warrant further review because reasonable jurists could not
debate whether Alaniz’s original filings themselves contained the claims.
II. Jurisdiction & Standard of Review
The district court had jurisdiction under 18 U.S.C. § 3231. We have
jurisdiction to review the district court’s final judgment under 28 U.S.C.
§§ 1291 and 2253. Our scope of review is, however, limited to the single issue
on which we granted the COA; we lack jurisdiction to consider anything else.
Buck v. Davis, 137 S. Ct. 759, 774 (2017); United States v. Daniels, 588 F.3d
835, 836 n.1 (5th Cir. 2009) (per curiam).
As a practical matter, the specific COA issue concerns whether the
district court appropriately denied Alaniz the ability to amend his claims on
the grounds that the newly raised claims were untimely. In general, we
review a district court’s denial of leave to amend for abuse of discretion,
examining any particular legal conclusions that the district court relied on to
reach that result de novo. City of Clinton v. Pilgrim’s Pride Corp., 632 F.3d
148, 152 (5th Cir. 2010); see also In re Deepwater Horizon, 785 F.3d 986, 999
(5th Cir. 2015) (“A decision premised on an error of law constitutes an abuse
of discretion.”). Although the parties dispute whether the district court’s
relation-back conclusion should be subject to review under abuse-of-
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discretion or as a de novo legal conclusion, 2 we need not resolve that question
in this case. Alaniz’s claims do not relate back under either standard of
review.
III. Discussion
Given the limited COA in this case, there is one and only one question
for us to resolve: whether the district court erred in concluding that Alaniz’s
otherwise untimely failure-to-advise and failure-to-consult claims relate back
to his timely failure-to-file claim. We conclude that they do not.
The question arises because § 2255 claims are generally subject to a
one-year limitations period. 28 U.S.C. § 2255(f). But a newly asserted claim
can avoid a limitations dismissal if it “relates back” to a timely claim by, as
relevant here, “ar[ising] out of” the same conduct “set out—or attempted
2
While not addressing this precise issue (whether the specific part of the analysis
we are addressing is a legal conclusion, which would warrant de novo review, rather than a
factual one) before, our cases tend to apply the abuse of discretion standard. See In re
Deepwater Horizon, 785 F.3d at 999; cf. Holmes v. Greyhound Lines, Inc., 757 F.2d 1563, 1565–
66 (5th Cir. 1985) (merely concluding that “[t]he district court did not abuse its discretion
in holding that the amended complaint failed to relate back”); United States v. Gutierrez,
548 F. App’x 181, 183 (5th Cir. 2013) (per curiam) (merely concluding that the district
court abused its discretion in implicitly denying a motion for leave to amend because the
newly asserted claims related back). That said, we recognize that eleven of our twelve sister
circuits apply de novo review to relation-back questions. Young v. Lepone, 305 F.3d 1, 14
(1st Cir. 2002); ASARCO LLC v. Goodwin, 756 F.3d 191, 202 (2d Cir. 2014); Hodge v.
United States, 554 F.3d 372, 377 (3d Cir. 2009); Robinson v. Clipse, 602 F.3d 605, 607 (4th
Cir. 2010); Miller v. Am. Heavy Lift Shipping, 231 F.3d 242, 247 (6th Cir. 2000); Delgado-
Brunet v. Clark, 93 F.3d 339, 342 (7th Cir. 1996); Heglund v. Aitkin Cnty., 871 F.3d 572, 579
(8th Cir. 2017); ASARCO, LLC v. Union Pac. R.R. Co., 765 F.3d 999, 1004 (9th Cir. 2014);
United States v. Roe, 913 F.3d 1285, 1298 (10th Cir. 2019); United States ex rel. Miller v. Bill
Harbert Int’l Constr., Inc., 608 F.3d 871, 878 (D.C. Cir. 2010) (per curiam); Anza Tech., Inc.
v. Mushkin, Inc., 934 F.3d 1359, 1367 (Fed. Cir. 2019), cert. denied, 140 S. Ct. 849 (2020).
But see Saxton v. ACF Indus., Inc., 254 F.3d 959, 962 n.4 (11th Cir. 2001). Accordingly, to
the extent it is an open question, we do not resolve it here, because Alaniz does not prevail
even under the least deferential standard of de novo review.
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to be set out—in the original pleading.” Fed. R. Civ. P. 15(c)(1)(B);
United States v. Saenz, 282 F.3d 354, 356 (5th Cir. 2002).
To answer the question, we look for commonalities between the facts
underlying the different claims. Mayle v. Felix, 545 U.S. 644, 664 (2005).
Newly asserted claims relate back if they are premised on the same or similar
allegations as those in the original filing. McClellon v. Lone Star Gas Co., 66
F.3d 98, 102 (5th Cir. 1995). But if the newly asserted claims require factual
support that “differ[s] in both time and type” from that required by the
timely claim, the new claims do not relate back, such that they are subject to
the relevant limitations period on the date asserted. Felix, 545 U.S. at 650.
So, as relevant here, newly asserted ineffective assistance claims do not
“automatically relate back” to earlier iterations of such claims, Gonzalez, 592
F.3d at 679—only claims “tied to a common core of operative facts” avoid
the limitations bar, Felix, 545 U.S. at 664.
Our court has not had many occasions to address the relation-back
doctrine in connection with § 2255 ineffective assistance of counsel claims.
The parties, for their part, identify only two cases in which we have done
so—Gonzalez, 592 F.3d at 675, and United States v. Gutierrez, 548 F. App’x
181 (5th Cir. 2013) (per curiam)—but neither is squarely on point. In
Gonzalez, we rejected relation-back arguments where a defendant tried to add
a new failure-to-file claim to pre-existing pre-trial- and sentencing-related
claims because the new claim involved “entirely distinct type[s] of attorney
misfeasance” at a different phase of the proceedings. 592 F.3d at 680. By
contrast, in the unpublished Gutierrez, we concluded that an allegation that a
defendant’s pre-trial counsel was ineffective by subsequently representing an
adverse witness in the defendant’s trial related back to a claim that the
defendant’s trial counsel was ineffective for failing to object to the adverse
witness’s testimony on the basis of the pre-trial counsel’s previous
representation of the defendant. 548 F. App’x at 182–83. Neither case
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addresses the factual circumstances presented by this case, in which we are
presented with multiple appellate-rights-related claims that nonetheless take
aim at different aspects of counsel’s representation.
We find persuasive the approach recently taken by the Tenth Circuit
in United States v. Roe, which involved a fact pattern on all fours with the one
we face here. 913 F.3d 1285, 1298–300 (10th Cir. 2019). In particular, the
defendant in Roe had, like Alaniz, sought to add a failure-to-consult claim to
a previously asserted failure-to-file claim that “depend[ed] entirely” on an
assertion that he had “specifically instructed” his counsel to appeal. Id. at
1299. The Tenth Circuit reasoned that, unlike the failure-to-file claim (which
focused on whether the defendant “request[ed] that trial counsel file a notice
of appeal”), the failure-to-consult claim took issue with counsel’s broader
failure—over “the entire course” of the representation—to identify that the
defendant would be interested in an appeal. Id. at 1299–300. Since that
inquiry involved facts different in both time (the specific request to appeal
versus the entirety of the representation) and type (a discrete discussion
versus a general sense of the defendant’s desire to appeal) from the failure-
to-file claim, the Tenth Circuit had “no difficulty” in concluding that the
failure-to-consult claim did not relate back. Id. at 1300.
We agree with that conclusion; for essentially the same reasons,
Alaniz’s newly raised claims do not arise out of the same set of facts as his
earlier failure-to-file claim. As in Roe, Alaniz’s failure-to-file claim is limited
in time and fact to one specific event: the entire claim turns on whether one
of his attorneys heard and then failed to follow Alaniz’s alleged whisper at
the sentencing hearing. 3 By contrast, his failure-to-advise and failure-to-
3
The dissenting opinion states that Roe is distinguishable because, it asserts, there
are other facts beyond the sentencing whisper supporting Alaniz’s failure-to-file claim:
specifically, the testimony of Alaniz’s daughter about discussions she had with Alaniz’s
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consult claims, like the later claim in Roe, turn on his attorneys’ conduct
during numerous meetings before and after sentencing. Simply put, Alaniz
asserts that his attorneys should have discerned from his concerns about his
sentencing enhancements or his interest in working with another attorney
that he would want to appeal and needed advice concerning the merits of
doing so. Those events are both temporally and factually distinct from his
alleged statement at sentencing. Indeed, as the district court reasoned, those
newly alleged events are at least partially inconsistent with Alaniz’s earlier
allegations—his alleged statement at sentencing that he wanted to file an
appeal conveys both an awareness of appellate rights and a desire to appeal
that conflicts with his later claims that he lacked such perspectives. Given
these differences, Alaniz’s newly raised claims do not arise out of the same
common core of operative facts as his original failure-to-file claim.
Alaniz’s arguments to the contrary are unavailing. For one, the cases
he cites—our decisions in Gutierrez and McClellon and the Third Circuit’s
decision in Hodge v. United States, 554 F.3d 372 (3d Cir. 2009)—are all
distinguishable because they involve newly raised claims intimately related to
the same facts underlying the initial claims. As discussed above, both of the
claims in Gutierrez concerned the same underlying event: the pre-trial
counsel’s subsequent representation of the adverse witness. 548 F. App’x at
183. McClellon is distinguishable for similar reasons; the plaintiff there added
a claim that she should have been allowed to work part-time to her initial
claim that generally alleged that she was denied the opportunity to return to
work. 66 F.3d at 102–03. So, too, with Hodge from the Third Circuit; in that
attorneys. But none of the daughter’s alleged discussions with the attorneys involved her
directing them to file an appeal—they all related to whether Alaniz could appeal certain
adverse sentencing enhancements. Those discussions therefore cannot constitute part of
the core of operative facts underlying Alaniz’s failure-to-file claim.
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case, the defendant’s new allegations that his counsel was ineffective for
failing to file an appeal were connected to his claim that his counsel had failed
to inform him of the appeal deadline. 554 F.3d at 376–78. Unlike those cases,
no single factual nexus exists here to connect Alaniz’s claims—Alaniz is not,
for example, advancing new legal theories premised on the alleged whisper,
he is asserting new theories based on different facts. Thus, the alleged failure
to carry out Alaniz’s filing instructions is not core to the failure to advise
Alaniz about his appellate rights or consult with him on the likelihood of
success on appeal.
Alaniz also argues that, because his original pro se filings invoked legal
standards on failure-to-advise and failure-to-consult claims, they contain
sufficient allegations that his counsel did not adequately advise or consult
him about an appeal. But that is in many ways just an argument that his
original § 2255 materials should be read to encompass failure-to-advise and
failure-to-consult claims on their face—an issue which we cannot address
because Alaniz was denied a COA on the subject. Daniels, 588 F.3d at 836
n.1. Thus, liberally construing Alaniz’s motion does not expand the inquiry
here because the possible claims based upon his original filings has already
been limited to one: his failure-to-file claim. We lack jurisdiction to conclude
that he claimed anything more than that.
Moreover, Alaniz’s suggestion that his citation to legal standards is
enough to anchor a relation-back question misunderstands the relevant
inquiry; a newly asserted claim must share “operative facts” with the earlier
claim, not merely with statements in the original materials. Felix, 545 U.S. at
664. Simply mentioning standards is insufficient; rather, “it is the
relationship of the facts to the claim asserted that is important,” particularly
in the habeas context. Id. at 655 (internal quotation marks and citation
omitted). Thus, the original filings must lay out factual allegations—not just
cite cases with legal concepts—that support both the original and the newly-
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asserted claims. 4 Id.; cf. Smith v. U.S. Dist. Ct. for S. Dist. of Ill., 956 F.2d
647, 649 & n.2 (7th Cir. 1992) (noting that an original filing contained a claim
because it contained some factual allegations in addition to legal authority on
the subject); Esquivel v. Cowley, No. 92–6188, 1993 WL 118852, at *1 (10th
Cir. 1993) (same); Torres v. Miami-Dade Cnty., 734 F. App’x 688, 692 (11th
Cir. 2018) (per curiam) (same). Since, as we have discussed, Alaniz’s failure-
to-file claim is localized to his allegations concerning a specific conversation
he had with one of his attorneys, we cannot say that his reference to other
legal standards suffices to anchor his subsequently asserted claims.
IV. Conclusion
Because Alaniz’s untimely failure-to-advise and failure-to-consult
claims do not relate back to his original failure-to-file claim, the district court
properly denied him leave to amend to add those claims. Accordingly, we
AFFIRM.
4
For similar reasons, it is irrelevant that, before the district court, the Government
apparently thought Alaniz’s original filings might contain a failure-to-consult claim—the
question on appeal is solely whether the claims arose out of the same common core of
operative fact.
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James E. Graves, Jr., Circuit Judge, dissenting:
Because I would conclude that Alberto Alaniz’s failure-to-advise and
failure-to-consult claims relate back to his failure-to-file claim, I would
reverse and remand. Thus, I respectfully dissent. 1
The claims here are clearly tied to a common core of operative facts.
Alaniz’s failure-to-file claim is not limited in time and fact to only the specific
event of whether counsel heard him say he wanted to appeal. Even if Alaniz
never told him that he wanted to appeal, counsel had the obligation to advise
Alaniz of his rights and discuss whether he wanted to appeal. Had the
attorney fulfilled his obligations as counsel, it would not have mattered
whether he heard Alaniz. Also, not only does Alaniz maintain that he told
him, but Alaniz’s daughter, Alyanette, raised it multiple times and counsel
was aware that their objections at sentencing were overruled.
The majority relies on the approach taken in United States v. Roe, 913
F.3d 1285, 1298-99 (10th Cir. 2019). In Roe, the district court concluded that
Roe’s failure-to-consult claim was an untimely new claim that did not relate
back to the failure-to-file claim. Alternatively, the court also concluded that
the failure-to-consult claim failed on the merits. Roe argued that he asked
counsel to file a notice of appeal on the day he was sentenced. However,
counsel disputed that claim and said that either Roe or a member of Roe’s
family had asked about filing a notice of appeal only several months after
sentencing and well after the time for filing an appeal. Id. at 1290.
Additionally, the Tenth Circuit said that, in his briefing, Roe relied on “an
entirely different set of facts that span a time frame over the entire course of
1
As an initial matter, based on the overwhelming authority of our sister circuits, as
set out by the majority, I would conclude that de novo review applies. However, I would
also conclude that Alaniz would prevail even under an abuse of discretion standard.
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trial counsel’s representation” to support his failure-to-consult claim than he
relied on for his failure-to-file claim. Id. at 1300.
Here, Alyanette testified that she asked multiple times within the time
period for filing an appeal. 2 Additionally, the evidence of whether counsel
even advised Alaniz of his rights appears to corroborate Alaniz’s claim. 3
However, counsel claims that he does not remember Alaniz telling him he
wanted to appeal. The district court did not conclude that the claim would
fail on the merits. Also, importantly, Alaniz relied on the same set of facts
for his claims. Thus, Roe is distinguishable.
Instead, I would look to this court’s prior caselaw for guidance. In
United States v. Gutierrez, 548 F. App’x 181 (5th Cir. 2013), this court
concluded that a claim that pre-trial counsel was ineffective by subsequently
representing an adverse witness in the defendant’s trial related back to the
defendant’s claim that trial counsel was ineffective for failing to object to the
testimony of the adverse witness on that basis. Id. at 182-83. In so doing, I
would conclude that the claims are tied to a common core of operative facts
and properly relate back. Any minimal difference would clearly fall within
2
The majority attempts to dismiss this on the basis that Alyanette did not “direct[]
them to file an appeal” and that her discussions with counsel only
“related to whether Alaniz could appeal.” (Emphasis original). Thus, the majority claims
that the discussions cannot constitute part of the core operative facts. I disagree.
Alyanette’s testimony establishes that her repeated discussions with counsel regarding an
appeal were sufficient to put counsel on notice that Alaniz wanted to appeal. In fact,
Alyanette testified that Galvan repeatedly told her that she would ask Vasquez about an
appeal and get back to her, but never did. Additionally, Alaniz was incarcerated. There are
limitations on when, how and how often prisoners can contact counsel or anyone else.
Family members often do the outside communicating.
3
Galvan testified that she and Vasquez “let [Alaniz] know that he had the right to
appeal” as they left the courtroom. Vasquez testified that he did not recall ever having a
discussion with Alaniz regarding his appellate rights.
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the accepted purpose of merely expanding the facts alleged. McClellon v.
Lone Star Gas Co., 66 F.3d 98, 102 (5th Cir. 1995)).
For these reasons, I would reverse and remand. Thus, I respectfully
dissent.
13