Gonzalez v. United States

• Decision Date: 02 July 2015
• Docket Number: No. 14–1994–pr.,14–1994–pr.
• Citation: 792 F.3d 232
• Parties: Efrain GONZALEZ, Jr., Petitioner–Appellant, v. UNITED STATES of America, Respondent–Appellee.
• Court: U.S. Court of Appeals — Second Circuit

792 F.3d 232

Efrain GONZALEZ, Jr., Petitioner–Appellant

v.UNITED STATES of America, Respondent–Appellee.

No. 14–1994–pr.

United States Court of Appeals, Second Circuit.

Submitted: June 22, 2015.

Decided: July 2, 2015.

Efrain Gonzalez, Jr., pro se.

Care of Federal Correctional Institution, Fort Dix, N.J., for Petitioner–Appellant.

Michael A. Levy, Assistant United States Attorney, for Preet Bharara, United States Attorney for the Southern District of New York, New York, N.Y., for Respondent–Appellee.

Before: CABRANES, POOLER, and CHIN, Circuit Judges.

Opinion

PER CURIAM:

This appeal presents an unsettled question regarding restitution orders and the one-year limitations period for a 28 U.S.C. § 2255 motion: Does the limitations period begin to run with an order affirming a conviction and sentence but remanding for recalculation of restitution, or does it begin to run only after the district court enters a revised restitution order on remand?

We hold that the limitations period begins to run only when the revised restitution order becomes final. Accordingly, the May 19, 2014 order of the United States District Court for the Southern District of New York (William H. Pauley III, Judge ) is VACATED and the cause is REMANDED for further proceedings consistent with this opinion.

BACKGROUND

Pro se appellant Efrain Gonzalez, Jr. is a former New York State senator who represented a district in the Bronx. He also served on the board of the West Bronx Neighborhood Association (“WBNA”), a Bronx charity. Gonzalez was accused of using WBNA funds for his personal use, including vacations, rent, jewelry, and baseball tickets. On May 8, 2009, Gonzalez pleaded guilty to two counts of fraud and two conspiracy counts. On May 25, 2010, the District Court sentenced him principally to seven years' imprisonment and ordered restitution, with the exact amount to be determined at a later date by the District Court. Gonzalez filed a timely notice of appeal on June 2, 2010. After receiving further submissions from the parties on the restitution question, the District Court, on August 23, 2010, entered a separate order directing Gonzalez to pay $122,775 in restitution to WBNA's donors.

On August 27, 2010, Gonzalez amended his notice of appeal to challenge the restitution order entered four days earlier. We affirmed the conviction and sentence, but vacated the restitution order.¹ We determined that the restitution amount of $122,775 overstated the losses to WBNA's donors because the donors had received some value for their donations, and we remanded the cause so that the District Court could determine the true extent of the victims' losses and order restitution in that revised amount.² Our decision was issued on July 22, 2011 (the “July 2011 Decision”). Gonzalez did not seek a writ of certiorari.

On remand, the parties agreed to a 25 percent discount to account for the benefits WBNA's donors received. On March 6, 2013, the District Court entered a revised order requiring Gonzalez to pay $92,081.25 in restitution (the “March 2013 Order”). He did not appeal that order. Instead, on September 4, 2013, Gonzalez filed a § 2255 motion asserting that the Government had threatened a witness to prevent him from testifying for Gonzalez. The District Court dismissed the § 2255 motion as time barred under the one-year limitations period set out in the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), codified at 28 U.S.C. § 2255(f). Specifically, the District Court rejected Gonzalez's argument that the AEDPA limitations period began after the March 2013 Order—when the District Court's revised restitution order was entered—and instead held that it started to run on October 20, 2011, 90 days³ after the July 2011 Decision, when this Court affirmed his conviction.

This appeal followed. We granted a certificate of appealability on the issue of “whether the district court erred in determining that [Gonzalez's] 28 U.S.C. § 2255 motion was untimely where it was filed within one year of the revised restitution order entered in March 2013.”

DISCUSSION

We consider de novo questions arising under AEDPA's requirement that a § 2255 motion be filed within one year of “the date on which the judgment of conviction becomes final.”⁴

If the AEDPA clock started to run when this Court affirmed the conviction and the non-restitution aspects of the sentence in the July 2011 Decision, then Gonzalez's § 2255 motion of September 4, 2013 would be time barred. Where a defendant does not seek Supreme Court review, a conviction becomes final when the time to seek such review expires, 90 days from the order affirming the conviction.⁵ Here, the time to seek a writ of certiorari expired on October 20, 2011, 90 days after the July 2011 Decision. If Gonzalez's conviction became final then—as the District Court held—the AEDPA limitations period ended on October 22, 2012 and his § 2255 motion filed in September 2013 was untimely.

Gonzalez urges us to conclude that the AEDPA limitations period began to run only with the March 2013 Order. More precisely, under this position, the limitations period began to run on March 20, 2013, when the time for Gonzalez to file a direct appeal of the revised restitution order expired.⁶ We agree for three reasons.

I. Amended Judgments

First, where a criminal judgment is vacated and remanded for substantive proceedings, the amended judgment is attackable in habeas proceedings. This posture often arises in the context of successive habeas petitions or motions.⁷ In Magwood v. Patterson the District Court conditionally granted a 28 U.S.C. § 2254 petition and ordered that the petitioner be released or re-sentenced by the state authorities.⁸ After re-sentencing by the state trial court, the petitioner filed a second § 2254 petition challenging the new sentence.⁹ The Supreme Court held that the second petition was not a second or “successive” petition within the meaning of AEDPA because the petitioner was challenging a new judgment.¹⁰ We have applied Magwood to hold that a § 2255 motion challenging an amended judgment of conviction of a federal trial court—entered after a previous § 2255 motion was granted and the prior judgment of conviction was vacated—did not constitute a successive § 2255 motion because the second § 2255 motion challenged a new judgment.¹¹

Other circuits have applied this rule in the context of AEDPA time limitations. In United States v. Colvin , the Ninth Circuit vacated one count of a conviction on direct appeal and remanded with instructions that the District Court strike that count and reduce the special assessment.¹² The defendant's § 2255 motion was filed within one year of that revised judgment of the federal trial court, but more than two years after the Ninth Circuit's order affirming in part and vacating in part the original judgment. The Ninth Circuit held that the AEDPA clock began to run with the revised judgment, and the § 2255 motion was therefore timely. The Court of Appeals reasoned that criminal proceedings in a district court are not complete until the availability of a direct appeal is exhausted, and, in the case before them, a direct appeal could have been taken from the revised judgment.¹³ Similarly, in United States v. Dodson , the Fourth Circuit held that the AEDPA clock began to run after the District Court on remand held a hearing and re-sentenced the defendant.¹⁴ The Dodson panel, however, noted that a remand for merely ministerial purposes would not have rendered the original judgment of conviction non-final.

We applied a similar rule in Burrell v. United States.¹⁵ There, we held that where one count of conviction was vacated but the life sentence remained intact, and the District Court was faced on remand with only the ministerial task of entering a judgment without the vacated count, for purposes of the AEDPA limitations period the conviction had become final with the original judgment.¹⁶ Importantly, we distinguished between cases where a “remand was strictly ministerial in that it required a routine, nondiscretionary act by the district court that could not have been appealed on any valid ground,” and cases where “our mandate left the district court the authority on remand to entertain the new arguments [defendant] advanced.”¹⁷

The rule drawn from cases such as Dodson and Burrell is this: Where a conviction is vacated and the cause is remanded for substantive proceedings, the new judgment is subject to renewed collateral attack under AEDPA. In contrast, where a trial court has only the ministerial task of entering a new judgment, the original judgment is the relevant judgment for habeas purposes.

Applying that rule here, the finality of the March 2013 Order—not that of the July 2011 Decision—started the AEDPA clock. Restitution is a serious component of criminal punishment,¹⁸ and calculating the restitution amount is hardly ministerial. Allowing a judgment to be final for AEDPA purposes—while the restitution amount remains wholly uncertain—runs counter to the explicit differentiation between substantive and ministerial proceedings articulated in these cases. In the instant case, the District Court was required to re-calculate the restitution order—rather than merely enter a new judgment—following substantive communication between the parties and between the parties and the Court.¹⁹ Indeed, the District Court eventually entered the revised restitution order—which cut the restitution amount by over $30,000—only after the parties had agreed to a 25 percent discount.

II. Finality

Second, a review of the law of finality in the context of restitution orders compels the conclusion that Gonzalez's conviction was not final for AEDPA purposes until the March 2013 Order. “Finality is variously defined; like many legal terms, its precise meaning depends on context.”²⁰ For purposes of a direct criminal appeal, “a federal judgment becomes final for appellate review and claim preclusion purposes when the district court...