Flores v. Hobbs

Filing 16

ORDER approving and adopting 14 Proposed Findings and Recommendations as this Court's findings in all respects in their entirety. Judgment shall be entered accordingly. The Court will not issue a certificate of appealability because petitioner has not made a substantial showing of the denial of a constitutional right. Signed by Judge Kristine G. Baker on 07/30/2015. (rhm)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION
JORGE FLORES
ADC #152918
v.

PETITIONER

Case No. 5:14-cv-00387-KGB-JTK

WENDY KELLEY, Director,
Arkansas Department of Correction

RESPONDENT
ORDER

The Court has received the Proposed Findings and Recommendations from United States
Magistrate Judge Jerome T. Kearney (Dkt. No. 14). After careful review of the Proposed
Findings and Recommendations and the timely objections thereto (Dkt. No. 15), as well as a de
novo review of the record, the Court concludes that the Proposed Findings and
Recommendations should be, and are hereby, approved and adopted as this Court’s findings in
all respects in their entirety. Judgment shall be entered accordingly. The Court will not issue a
certificate of appealability because petitioner has not made a substantial showing of the denial of
a constitutional right. 28 U.S.C. § 2253(c).
The Court writes separately to address petitioner Jorge Flores’s objections (Dkt. No. 15).
First, Mr. Flores asserts a state-created impediment to filing his petition in violation of the
Constitution or laws of the United States. Such an impediment would be a statutory exception to
the one-year statute of limitations for filling a petition for a writ of habeas corpus. See 28 U.S.C.
§2244(d)(1)(B). Specifically, Mr. Flores states that his interpreter at trial “vanished” after his
guilty plea “never to be legally had as available . . . during any relevant period of his detention,”
which required him to learn English (Dkt. No. 15, at 2-3). However, Mr. Flores does not have a

federal right to an interpreter during detention or to assist with a habeas petition, so any such
impediment is not in violation of the Constitution or laws of the United States.
Second, Mr. Flores expands on his argument that his petition is entitled to equitable
tolling because he is not proficient in English and needed “to learn and comprehend the [E]nglish
language while he research[ed] the . . . facts of trial proceeding[]s and applied such to his cause
of action in a federal court” (Id. at 5). Mr. Flores has not shown that his lack of proficiency in
English prevented him from accessing the Courts. See Mendoza v. Minnesota, 100 Fed. App’x
587, 588 (8th Cir. 2004) (citing Cobas v. Burgess, 306 F.3d 441, 444 (6th Cir. 2002) (holding
that lack of proficiency in English does not toll the limitations period if it does not prevent the
prisoner from accessing the courts)). Particularly, Mr. Flores does not allege that he exerted any
effort to procure legal materials in his own language or that he sought translation assistance from
anyone. See Castro-Gaxiola v. United States, 665 F. Supp. 2d 1049, 1053 (W.D. Mo. 2009)
(citing Mendoza v. Carey, 449 F.3d 1065, 1070 (9th Cir. 2006) (holding that for lack of
proficiency in English to be grounds for equitable tolling petitioner must show “he was unable,
despite diligent efforts, to procure either legal materials in his own language or translation
assistance from an inmate, library personnel, or other source”)). Instead, Mr. Flores makes
general claims that he did not have an interpreter and did not receive help from the prison’s law
library (Dkt. No. 11, at 11-12).
SO ORDERED this the 30th day of July, 2015.

________________________________
KRISTINE G. BAKER
UNITED STATES DISTRICT JUDGE

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