Fernandez v. Rogers

• Court: Court of Appeals for the Tenth Circuit
• Decided: March 17, 2026
• Docket: 25-5162
• Status: Unpublished

Opinion

Appellate Case: 25-5162 Document: 12-1 Date Filed: 03/17/2026 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT March 17, 2026 _________________________________ Christopher M. Wolpert Clerk of Court ERIC FERNANDEZ,

Petitioner - Appellant,

v. No. 25-5162 (D.C. No. 4:24-CV-00489-SEH-MTS) DAVID ROGERS, Interim Warden, (N.D. Okla.)

Respondent - Appellee. _________________________________

ORDER DENYING CERTIFICATE OF APPEALABILITY * _________________________________

Before PHILLIPS, KELLY, and FEDERICO, Circuit Judges. _________________________________

Eric Fernandez, an Oklahoma prisoner, applies for a certificate of appealability

(COA) under 28 U.S.C. § 2253(c)(1)(A) to challenge the district court’s dismissal of his

28 U.S.C. § 2254 habeas corpus application. The district court determined that the

application was time-barred by the one-year limitation period in 28 U.S.C.

§ 2244(d)(1)(A). It also determined that neither statutory nor equitable tolling applied

and that an evidentiary hearing was not warranted. A COA is a jurisdictional prerequisite

to our appellate review. Miller-El v. Cockrell, 537 U.S. 322, 335–36 (2003). We deny a

COA and dismiss the appeal.

* This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Appellate Case: 25-5162 Document: 12-1 Date Filed: 03/17/2026 Page: 2

Background

On September 13, 2021, Mr. Fernandez entered a nolo contendere plea to six

counts in connection with a domestic violence incident. R. 107–08. He was sentenced to

35 years’ imprisonment on the most serious count on November 23, 2021. Id. at 125.

Mr. Fernandez explains that immediately after the sentencing he requested that his

lawyers initiate an appeal and was assured that they would do so. Aplt. Br. at 4. Counsel

filed a notice of intent to appeal in district court on December 1, 2021. R. 140.

If a defendant’s conviction is by way of a guilty plea, an Oklahoma defendant may

pursue a direct appeal by certiorari. Okla. Stat. Ann. tit. 22, § 1051(A). However, a

defendant must first file a written application to withdraw his plea within ten days of

sentencing as required by Rule 4.2(A) of the appellate rules. Okla. Ct. Crim. App.

R. 4.2(A), Tit. 22, Ch. 18, App’x. Although his plea documents advised of this

requirement, no such motion was filed. Accordingly, Mr. Fernandez’s conviction became

final on December 3, 2021.

Mr. Fernandez contends that counsel lulled him into thinking that a direct appeal

had been properly filed. Aplt. Br. at 4–5. He relies upon a December 2, 2021 letter

where counsel had stated “We have begun the appeal process to appeal Eric’s sentence[,]”

R. 254, and a telephone call made to counsel on January 20, 2022, Aplt. Br. at 5. He

alleges that counsel assured him it had been filed. Id. Mr. Fernandez alleges that he

learned of this problem after counsel sent him a letter dated December 12, 2022

indicating that the Oklahoma Court of Criminal Appeals (OCCA) had declined

2 Appellate Case: 25-5162 Document: 12-1 Date Filed: 03/17/2026 Page: 3

jurisdiction of his appeal from a subsequent judicial review hearing. 1 R. 30, 160–61,

264–65; Aplt. Br. at 6.

Mr. Fernandez filed an unsuccessful state post-conviction application for an appeal

out of time on December 19, 2023. R. 162–265. The district court’s denial on April 2,

2024, id. at 283–87, was affirmed by the OCCA on July 2, 2024 because Mr. Fernandez

had not filed his post-conviction application before November 1, 2023, id. at 371–72.

Mr. Fernandez filed his federal habeas application on August 19, 2024. He claims

(1) ineffective assistance of counsel due to counsel’s failure to file a motion to withdraw

his plea to appeal his convictions, and (2) a denial of the right to a direct appeal of his

convictions with effective assistance of counsel in violation of due process. 2 R. 10–12.

Mr. Fernandez claimed that he did not learn of the factual predicate of his first claim until

after December 12, 2022 when the OCCA declined jurisdiction of his appeal of his

sentencing review hearing. 3 He maintains that he did not learn of the factual predicate of

his second claim until the state district court denied his post-conviction application for

relief on April 2, 2024.

1 Mr. Fernandez’s 35-year sentence was modified to 20 years’ imprisonment with 15 years of supervised release. The sentence modification proceeding is not part of the direct review process and any amended judgment does not affect the finality of the original judgment. Williams v. Beck, 115 F. App’x 32, 33 (10th Cir. 2004). 2 Mr. Fernandez contends that he missed Oklahoma’s November 1, 2023 deadline to file for state post-conviction relief for petitioners whose convictions became final on or before November 1, 2022. He maintains that the lack of notice of this constitutes a denial of due process. 3 In his opening brief and application for a COA, Mr. Fernandez indicates that upon receiving his case file from counsel after May 12, 2023, he learned that counsel had not filed an application to withdraw his plea and had not filed a certified copy of the notice of intent to appeal with the OCCA. Aplt. Br. at 6–7, 18–19. 3 Appellate Case: 25-5162 Document: 12-1 Date Filed: 03/17/2026 Page: 4

Discussion

To obtain a COA, Mr. Fernandez must show both “that jurists of reason would find

it debatable whether the petition states a valid claim of the denial of a constitutional right

and that jurists of reason would find it debatable whether the district court was correct in

its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). On appeal,

Mr. Fernandez argues that the district court’s conclusion that he was not entitled to

statutory or equitable tolling or an evidentiary hearing is incorrect. 4 He maintains that

under Roe v. Flores, 528 U.S. 470, 484 (2000), he is entitled to a direct appeal due to the

ineffective assistance of his counsel given that his counsel filed the wrong document in

the trial court and failed to file an application to withdraw his guilty plea after his request

to appeal. See Clayton v. Jones, 700 F.3d 435, 441–42 (10th Cir. 2012); Baker v. Kaiser,

929 F.2d 1495, 1498–1500 (10th Cir. 1991).

Our review of a district court’s decision dismissing a habeas application as

time-barred under 28 U.S.C. § 2244(d) is de novo. Fleming v. Evans, 481 F.3d 1249,

1254 (10th Cir. 2007). The district court’s decision on equitable tolling is reviewed for

an abuse of discretion, id., as is its decision on whether to hold an evidentiary hearing

when presented with issues involving time-bar and tolling, Fisher v. Gibson, 262 F.3d

1135, 1145 (10th Cir. 2001).

The district court determined that Mr. Fernandez’s one-year limitation period

began to run on December 4, 2021 and expired on December 5, 2022. R. 483–84; 28

4 Mr. Fernandez has filed an opening brief with nine issues; we have considered it, but do not discuss each issue separately. 4 Appellate Case: 25-5162 Document: 12-1 Date Filed: 03/17/2026 Page: 5

U.S.C. § 2244(d)(1)(A). It concluded that he was not entitled to delay the start of the

limitation period under 28 U.S.C. § 2244(d)(1)(D) which allows the limitation period to

run from “the date on which the factual predicate of the claim or claims presented could

have been discovered through the exercise of due diligence.”

The district court concluded that the true factual predicate of Mr. Fernandez’s

claims was the failure to initiate a direct appeal of his conviction. Id. at 485 (“The

predicate fact underlying both Fernandez’s grounds is that he failed to

initiate a direct appeal of his conviction.”). According to the district court, the fact that

his attorney did not file the essential application to withdraw his plea could have been

discovered through the exercise of due diligence in December of 2021. Id. at 485–86.

The district court reached this conclusion because Mr. Fernandez signed a plea

document “Plea of Guilty / No Contest Summary of Facts” of some 16 pages (several of

which have not been completed) with an advice of rights. 5 Mr. Fernandez pointed out

5 NOTICE OF RIGHT TO APPEAL

Sentenced to Incarceration, Suspended, or Deferred:

To appeal from this conviction, or order deferring sentence, on your plea of guilty/no contest, you must file in the District Court Clerk’s Office a written Application to Withdraw your Plea of Guilty/No Contest within ten (10) days from today’s date. You must set forth in detail why you are requesting to withdraw your plea. The trial court must hold a hearing and rule upon your application within thirty (30) days from the date it is filed. If the trial court denies your application, you have the right to ask the Court of Criminal Appeals to review the District Court’s denial by filing a Petition for Writ of Certiorari within ninety (90) days from the date of the denial. Within ten (10) days from the date the Application to Withdraw Plea of Guilty/No Contest is denied, Notice of Intent to Appeal and Designation of Record must be filed pursuant to Oklahoma Court of Criminal Appeals Rule 4.2(D). If you are indigent, you have the right to be represented 5 Appellate Case: 25-5162 Document: 12-1 Date Filed: 03/17/2026 Page: 6

that he had not circled that he understood these rights and there is no signature of his

attorney confirming that he advised Mr. Fernandez of his appellate rights. The trial judge

advised Mr. Fernandez that he could appeal. R. 253. At sentencing, Mr. Fernandez

indicated that he had not visited with his attorneys concerning appeal rights, and the trial

judge requested that counsel do so. Id. Counsel responded “We have advised him of

that, Judge, and we would ask – we would still ask that he remain here for ten days.” Id.

In any event, having been told that a direct appeal had been initiated, Mr. Fernandez does

not explain why he did not look into it when subsequent inquiries of counsel were

unavailing.

The district court determined that the factual predicate of Mr. Fernandez’s claims

should have been discovered in December 2021, presumably immediately after

December 3, 2021 when the conviction became final. In Owens v. Boyd, 235 F.3d 356

(7th Cir. 2000), the petitioner argued that § 2244(d)(1)(D) applied where he did not

realize that appointed counsel left him to his own devices and later learned that no

petition for collateral review had been filed. Thereafter, the petitioner looked into it and

realized that he could seek collateral relief on the basis of ineffective assistance of

counsel. The court rejected the idea that he could rely upon § 2244(d)(1)(D) and have the

time run from when he learned of his possible claim: “Time begins when the prisoner

on appeal by a court-appointed attorney and the right to a record and transcript at public expense.

Do you understand each of these rights to appeal? YES NO

R. 249. 6 Appellate Case: 25-5162 Document: 12-1 Date Filed: 03/17/2026 Page: 7

knows (or through diligence could discover) the important facts, not when the prisoner

recognizes their legal significance. If § 2244(d)(1) used a subjective rather than an

objective standard, then there would be no effective time limit[.]” Owens, 235 F.3d

at 359. Thus, it is the actual or imputed discovery of the claim’s factual predicate rather

than “recognition of the facts’ legal significance” that counts. Id.

Although Mr. Fernandez faults counsel for not ensuring that he read and

understood the advice of his right to appeal as well as the basis for appeal and the proper

procedure, the correct inquiry is whether due diligence “could have” revealed the factual

predicate if pursued. This is an objective inquiry and is not answered by what

Mr. Fernandez did. See Ybanez v. Johnson, 204 F.3d 645, 646 (5th Cir. 2000)

(per curiam) (“Section 2244(d)(1)(D) provides for equitable tolling when the facts on

which a federal habeas claim is based would not have been discovered by a duly diligent

petitioner.”). As in Owens, the lack of a motion to withdraw a guilty plea (let alone the

absence of pleadings perfecting the appeal) “was a matter of public record, which

reasonable diligence could have unearthed.” 235 F.3d at 360. This case does not involve

hidden facts that only were or could have been discovered years later.

Be that as it may, we agree with the district court that by Mr. Fernandez’s

own admissions, he was surely aware of the factual predicate of both his claims by

December 2022 at the latest. R. 495. Counsel’s letter states: “I will be happy to

talk with you about this but I don’t really see, at least at this point in time, any

further efforts we can pursue to obtain additional relief for you.” R. 265. At this

point, Mr. Fernandez knew or should have known that a direct appeal had not been

7 Appellate Case: 25-5162 Document: 12-1 Date Filed: 03/17/2026 Page: 8

perfected. Although Mr. Fernandez argues that (1) the letter did not spell out that

counsel had forfeited his direct appeal, (2) no state court had notified him that the

appeal had not been properly filed, and (3) the letter dealt primarily with the

sentencing review proceedings, more was unnecessary to put him on notice.

Finally, we note that he could have filed a protective federal habeas petition while

pursuing state post-conviction remedies. See Pace v. DiGuglielmo, 544 U.S. 408,

416 (2005). 6

Instead, Mr. Fernandez would not file his federal petition until August 19,

2024 and did not file for state post-conviction relief until December 19, 2023, over

a year after counsel’s letter. Statutory tolling under 28 U.S.C. § 2244(d)(2) only

6 Mr. Fernandez relies upon Wims v. United States, 225 F.3d 186 (2d Cir. 2000), where the petitioner moved to vacate a narcotics conviction 17 months after it became final, claiming ineffective assistance of counsel. The petitioner claimed that his petition was timely under 28 U.S.C. § 2255(4) because, unbeknownst to him, his attorney had failed to file a direct appeal. Wims, 225 F.3d at 188. The narrow issue was whether the similar due diligence language of § 2255(4) required him to have checked on counsel’s pursuit of an appeal on the very day that his conviction became final, or whether it was reasonable for him to have waited five months to do so. The Second Circuit held that a five-month delay was not so unreasonable as to render the petition per se untimely. Wims, 225 F.3d at 190–91. In doing so, it recognized that a determination of when the limitations clock under subsection (4) begins to run is fact-specific and should be based on the particular circumstances of each case including post-sentence conversations with his lawyer and the petitioner’s conditions of confinement. Wims relied on Easterwood v. Champion, 213 F.3d 1321, 1323 (10th Cir. 2000), where the issue was whether the factual predicate that the state’s expert was suffering from bi-polar disorder (gained from a published opinion) was available when the published opinion was issued, or when the petitioner had access to it through the prison law library.

We think that Wims is distinguishable particularly given that the focus must be on the delay in filing the federal petition which occurred on August 19, 2024, some 20 months after receiving counsel’s letter and after Mr. Fernandez terminated his relationship with counsel. 8 Appellate Case: 25-5162 Document: 12-1 Date Filed: 03/17/2026 Page: 9

applies to properly filed state applications within the statutory year so the state

filing would not toll. Clark v. Oklahoma, 468 F.3d 711, 714 (10th Cir. 2006).

Turning to equitable tolling, Mr. Fernandez must demonstrate that he

diligently pursued his claims and untimely filing “was caused by extraordinary

circumstances beyond his control.” Marsh v. Soares, 223 F.3d 1217, 1220

(10th Cir. 2000). Diligence means “reasonable diligence” not “maximum feasible

diligence.” Holland v. Florida, 560 U.S. 631, 653 (2010) (citation modified).

Professional misconduct can amount to egregious behavior that constitutes

extraordinary circumstances but “garden variety” attorney error does not. Id.

at 651–52.

The district court concluded that Mr. Fernandez could not demonstrate

extraordinary circumstances given what appeared to be ordinary negligence. Mr.

Fernandez sought to appeal not only his sentence but also his amended sentence

and both times his counsel endeavored to appeal, albeit unsuccessfully, although

counsel apparently had misgivings about whether the sentence modification could

be appealed. Although Mr. Fernandez maintains that counsel did not inform him

of the necessity of withdrawing his guilty plea (and apparently actively

discouraged a direct appeal) and indicated that a direct appeal had been initiated,

the district court did not recognize the circumstances as extraordinary. Insofar as

diligent pursuit, the district court determined that Mr. Fernandez took no active

steps to check on his appeal between November 2021 and December 2022, save

inquiring of counsel. Even after the December 2022 letter, more than a year

9 Appellate Case: 25-5162 Document: 12-1 Date Filed: 03/17/2026 Page: 10

passed before filing state post-conviction proceedings and more than a year-and-a-

half before initiating federal proceedings.

Relying on Baldayaque v. United States, 338 F.3d 145, 152–53 (2d Cir.

2003), Mr. Fernandez argues that counsels’ actions must be considered collectively

and are indeed extraordinary based upon the misrepresentation that a direct appeal

had been initiated, maintaining that it had been done, and not informing him that

state and federal remedies were compromised as a result of their inaction. Aplt.

Br. at 29. Yet, even assuming that such could constitute an extraordinary

circumstance, Mr. Fernandez has not shown diligent pursuit of his claims.

Although Mr. Fernandez has proposed various dates that might shed light

on when the exercise of due diligence would reveal that a direct appeal was not

perfected, we do not think that the district court’s decision is reasonably debatable

given an abuse of discretion standard of review applied to the operative facts. See

Anjulo-Lopez v. United States, 541 F.3d 814, 817–19 (8th Cir. 2008).

We DENY a COA and DISMISS the appeal.

Entered for the Court

Per Curiam