United States v. Alaniz, No. 19-40486 (5th Cir. 2021)
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Defendant was convicted of drug and money laundering offenses and sentenced to over twenty years in prison. In subsequent filings under 28 U.S.C. 2255, defendant asserted the reason for him not filing a direct appeal was his counsel's failure to file despite being asked to do so at sentencing. Defendant later 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 Fifth Circuit granted a certificate of appealability (COA) and concluded that the district court did not err in concluding that defendant's failure-to-advise and failure-to-consult claims did not relate back to his failure-to-file claim and were, as a result, untimely. The court found persuasive the approach recently taken by the Tenth Circuit in United States v. Roe, 913 F.3d 1285, 1298–300 (10th Cir. 2019), and concluded that defendant's newly raised claims do not arise out of the same set of facts as his earlier failure-to-file claim. As in Roe, defendant'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 defendant's alleged whisper at the sentencing hearing. Defendant's claims to the contrary are unavailing.
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