Roldan v. Northern NH Correctional Facility, Warden

Filing 21

ORDER denying 18 Motion for Certificate of Appealability. So Ordered by Judge Paul J. Barbadoro.(jna)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Angel Roldan
v.

Civil No. 13-cv-447-PB
Opinion No. 2014 DNH 175

Edward Reilley, Warden,
Northern New Hampshire
Correctional Facility

MEMORANDUM AND ORDER
Angel Roldan is incarcerated pursuant to a final judgment
of the New Hampshire state courts.

Doc. No. 1.

Roldan filed a

petition for a writ of habeas corpus in this court.

Id.

Edward

Reilley, the Warden at the facility where Roldan is
incarcerated, filed a motion for summary judgment, Doc. No. 12,
which I granted on July 21, 2014.
158, 13.

Roldan v. Reilley, 2014 DNH

Roldan now moves for a certificate of appealability

pursuant to 28 U.S.C. § 2253(c).

Doc. No. 18.

I deny the

motion.

I.

ANALYSIS

In my July 21, 2014 Order, I determined that Roldan’s
habeas petition was untimely because it was filed after the
expiration of the applicable one-year limitations period.
Roldan, 2014 DNH 158, 4-5 (citing 28 U.S.C. § 2244(d)(1)).

I

then declined Roldan’s request to equitably toll the limitations
period because the record did not reveal a “genuine dispute as
to a[] material fact,” id. at 2-3 (quoting Fed. R. Civ. P.
56(a), concerning whether Roldan (1) “was prevented from timely
filing by extraordinary circumstances,” and (2) “exercised
reasonable diligence in trying to preserve his rights.”

Id. at

7-8 (quoting Dominguez v. Duval, 527 F. App’x 38, 39-40 (1st
Cir. 2013)).
Roland contends that I erred in granting the Warden’s
summary judgment motion by giving insufficient consideration to
his sworn affidavit, which states that Spanish is his native
language1 and that,
[w]hile I have never denied that I do speak some
English, my understanding of others speaking English
is limited. I cannot read English at all. . . . The
reason I did chose not [sic] to completely rely upon
the Spanish interpreter at trial, was because the
interpreter confused me more than he helped me.
The
interpreter was from a different country than the
country where I was born, and I did not understand
many of the things he said. . . .
All of the law
books in the prison where I am incarcerated are
written in English.
Since I do not read English, I
was unaware of the time limitations contained in the
law . . . .
1

Roldan also notes that “the recorded telephone conversations
used at his trial were entirely in Spanish,” which “clearly
establishes that English was not his first language.” Doc. No.
18-1. I accepted that fact. Roldan, 2014 DNH 158, 10 (“It is
undisputed that English is not Roldan’s native tongue.”).
2

Doc. No. 14-1.

I disagree.

Even assuming that Roldan was

entirely unable to speak, read, or understand English during the
one-year limitation period, the First Circuit has stated that a
petitioner’s “lack of familiarity with the English language . .
. .

standing alone, may be insufficient to excuse a failure to

file a timely habeas petition,”2

Roldan, 2014 DNH 158, 8-9

(quoting Ramos-Martínez, 638 F.3d at 324), and no court of
appeals has held that such lack of English proficiency is
independently sufficient to warrant equitable tolling in the
absence of “other obstacles related to [the petitioner’s]
linguistic difficulties.”3

Id. at 9-10 & n.4 (citing Yow Ming

2

Contrary to Roldan’s contention, a petitioner who is competent
in Spanish but has absolutely no knowledge of English could
still take steps to safeguard his or her legal rights – for
example, “requesting that Spanish language legal materials be
brought to the prison, petitioning for access to an interpreter,
seeking out a bilingual inmate to provide assistance, or
attempting to improve his [or her] own English skills,” see
Roldan, 2014 DNH 158, 11-12 (citing Pabon v. Mahanoy, 654 F.3d
385, 402 (3d Cir. 2011); Ramos-Martínez v. United States, 638
F.3d 315, 324 (1st Cir. 2011)) – whereas a petitioner with a
sufficiently severe mental illness could not. See id. at 8 n.3
(citing Riva v. Ficco, 615 F.3d 35, 40 (1st Cir. 2010)).
3

Roldan notes that some courts have held that “a prison law
library’s lack of Spanish-language legal materials, coupled with
a petitioner’s inability to obtain translation assistance before
the one-year limitations period . . . can constitute an
extraordinary circumstance.” Doc. No. 18-1 (citing Diaz v.
Kelly, 515 F.3d 149, 154 (2d Cir. 2008); Mendoza v. Carey, 449
F.3d 1065, 1069 (9th Cir. 2006)). But Roldan presented no
evidence that he was unable to obtain translation assistance
3

Yeh v. Martel, 751 F.3d 1075, 1078 (9th Cir. 2014); Perez v.
Florida, 519 F. App’x 995, 997 (11th Cir. 2013) (per curiam);
Pabon, 654 F.3d at 400; Gutierrez-Ruiz v. Trani, 378 F. App’x
797, 799 (10th Cir. 2010); Inglesias v. Davis, No. 07-1166, 2009
WL 87574, at *3 (6th Cir. Jan. 12, 2009); Diaz, 515 F.3d at
154).

Roldan was required to present evidence that he “was

prevented from timely filing by” his lack of English
proficiency, regardless of how severe that lack of proficiency
was during the relevant period.
527 F. App’x at 39-40).

Id. at 7-8 (quoting Dominguez,

He failed to do so.

Id. at 11-12.

Roldan was also required to show that he took at least some
action to overcome his lack of English proficiency during the
limitations period in order to demonstrate that he “exercised
reasonable diligence in trying to preserve his rights.”
7-8 (quoting Dominguez, 527 F. App’x at 39-40).
evidence that he took any action in this regard.4
during the one-year limitations period.
11-12.
4

Id. at

He presented no
Id. at 11-12

Roldan, 2014 DNH 158,

Roldan claims that “there is no evidence in the record here,
that anyone, inmate or prison employee, spoke Spanish
sufficiently to have been able to help him and that such an
individual was aware of the filing deadline.” Doc. No. 18-2.
But he has presented no evidence that he took any steps to
discover this fact, if it is indeed true. See Roldan, 2014 DNH
158, 11-12 (“[T]he diligence requirement of equitable tolling
imposes on the prisoner a substantial obligation to make all
4

(citing Pabon, 654 F.3d at 402; Ramos-Martínez, 638 F.3d at
324).

II.

CONCLUSION

Roldan failed to demonstrate a “genuine dispute as to a[]
material fact” concerning each prong of the equitable tolling
analysis, and I thus did not err in ruling that the Warden “is
entitled to judgment as a matter of law.”
(quoting Fed. R. Civ. P. 56(a)).

See id. at 2-3, 13

Accordingly, he has not “made

a substantial showing of the denial of a constitutional right.”
See 28 U.S.C. § 2253(c)(2).
certificate of appealability.

I therefore deny his motion for a
Doc. No. 18.

SO ORDERED.
/s/Paul Barbadoro
Paul Barbadoro
United States District Judge
August 22, 2014
cc:

David J. Goldstein, Esq.
Theodore M. Lothstein, Esq.
Elizabeth C. Woodcock, Esq.

reasonable efforts to obtain assistance to mitigate his language
deficiency.” (quoting Diaz, 515 F.3d at 154)).
5