United States of America, Plaintiff-appellee, v. Romeo Trinidad Flores, Jr., Defendant-appellant, 135 F.3d 1000 (5th Cir. 1998)

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 United States v. Flores, 40 F.3d 385 (5th Cir. 1994) (unpublished table decision).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  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 

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 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 certiorari in Lindh and reversed on a separate issue.⁹  Lindh v. Murphy, --- U.S. ----, 117 S. Ct. 2059, 138 L. Ed. 2d 481 (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 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, --- U.S. at ----, 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, --- U.S. at ---- - ----, 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 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 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, 185 U.S. 55, 60-63, 22 S. Ct. 573, 575, 46 L. Ed. 804 (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 60-63, 22 S. Ct. at 575.

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 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, 121 N.C. 205, 28 S.E. 294 (1897), where the court determined that 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, 471 U.S. 261, 105 S. Ct. 1938, 85 L. Ed. 2d 254 (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 274-79, 105 S. Ct. 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 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 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 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, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (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 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  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.