Murphy v. U.S.

• Decision Date: 08 March 2011
• Docket Number: 07–14825.,Nos. 07–14823,s. 07–14823
• Parties: Robert Marshal MURPHY, Petitioner–Appellant,v.UNITED STATES of America, Respondent–Appellee.Robert Marshal Murphy, Petitioner–Appellant,v.United States of America, Respondent–Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

634 F.3d 1303

22 Fla. L. Weekly Fed. C 1863

Robert Marshal MURPHY, Petitioner–Appellant,

v.UNITED STATES of America, Respondent–Appellee.Robert Marshal Murphy, Petitioner–Appellant,

v.United States of America, Respondent–Appellee.

Nos. 07–14823

07–14825.

United States Court of Appeals, Eleventh Circuit.

March 8, 2011.

Sonya Margaret Rudenstine (Court–Appointed), Gainesville, FL, for Murphy.Lennard B. Register, III, Thomas P. Swaim, Pensacola, FL, E. Bryan Wilson, Tallahassee, FL, for U.S.Appeals from the United States District Court for the Northern District of Florida.Before TJOFLAT, EDMONDSON AND HILL, Circuit Judges.TJOFLAT, Circuit Judge:

The issue in this case is whether a district court order reducing a defendant's sentence pursuant to Federal Rule of Criminal Procedure 35(b) ¹ for the defendant's substantial assistance is a new “judgment of conviction” that resets the one-year statute of limitations for filing a motion to vacate a conviction and sentence under 28 U.S.C. § 2255.² The district court held that its Rule 35(b) order did not reset the clock and dismissed the petitioner's § 2255 motion. We affirm.

I.

A.

From 2001 to 2003, Robert Marshal Murphy, the petitioner, helped lead an “entrenched” Pensacola Beach-based conspiracy to distribute cocaine. A multi-agency law enforcement operation brought the enterprise to an end, and Murphy decided to cooperate. On December 12, 2003, Murphy entered into a plea agreement with the Government. In exchange for the Government's promise to move the district court pursuant to U.S.S.G. § 5K1.1³ to impose sentences below the Guidelines sentencing range, he pled guilty to conspiring to possess with intent to distribute cocaine and to commit money laundering. ⁴ After the district court accepted his guilty pleas and prior to sentencing, Murphy provided the Government with substantial assistance in its investigation of those with whom he had been trafficking cocaine.

Murphy was sentenced on April 28, 2004.⁵ Under the Sentencing Guidelines, Murphy's criminal history category was I and his adjusted offense level was 37, yielding a sentencing range for the two conspiracy offenses of 210 to 262 months' imprisonment.⁶ Because Murphy assisted the Government's investigation, the Government moved the district court pursuant to § 5K1.1 to sentence him below the Guidelines sentencing range. The court granted the motion and, on April 28, 2004, sentenced Murphy to concurrent prison terms of 90 months.

After sentencing, Murphy continued to assist in the investigation and prosecution of others involved in cocaine trafficking. As a result of that cooperation, which included testifying against co-conspirators, the Government, on March 8, 2007, moved the district court pursuant to Rule 35(b) to reduce Murphy's sentence. The court granted the motion on May 10, 2007. In a sealed order, the court reduced Murphy's concurrent terms of imprisonment from 90 months to 66 months. The court emphasized that “[i]n all other respects, the defendant's judgment of April 28, 2004, remains in full force and effect.”

B.

On August 3, 2007, three months after the district court granted the Government's Rule 35(b) motion and over three years after the time for appealing the April 28, 2004, judgment had expired, Murphy, proceeding pro se, moved the district court under § 2255 to vacate, set aside, or correct his sentences. Murphy claimed that he had received ineffective assistance of counsel in connection with his April 28, 2004, sentencing. His motion alleged that his retained attorney had a conflict of interest, failed to object to factual inaccuracies in the presentence investigation report that resulted in a six-point increase in his offense level, and inadequately explained the money laundering charge to him. Recognizing that § 2255's one-year statute of limitations applied, Murphy argued that the time limit should run from August 14, 2006, when he first sought and received permission to review his file at the prison camp.⁷

The district court referred Murphy's motion to a magistrate judge who recommended that the court summarily dismiss it as untimely.⁸ Noting that § 2255 imposes a one-year statute of limitations, the magistrate judge concluded that the period began to run on May 9, 2004, which was ten days after the district court had imposed sentence and entered judgment, and the time for appealing the judgment had expired. Therefore, absent equitable tolling, Murphy's § 2255 motion had to be filed by May 9, 2005. Although Murphy claimed not to have reviewed his file or learned of the grounds for the motion until August 2006, nothing stopped him from reviewing the file earlier; thus, equitable tolling did not apply.

Murphy objected to some of the magistrate judge's findings and conclusions. Most importantly, he contended that the district court's Rule 35(b) modification of the sentence on May 10, 2007, reset the statute of limitations clock. Nevertheless, on September 12, 2007, the district court, adopting the magistrate judge's recommendation in full, dismissed Murphy's § 2255 motion as time-barred.

On October 12, 2007, Murphy sought a certificate of appealability. He pointed out that the dismissal of his motion turned on the district court's conclusion that his conviction became final on May 9, 2005, a conclusion that conflicted with this court's then-recent decision in Ferreira v. Secretary, Department of Corrections, 494 F.3d 1286 (11th Cir.2007). The district court therefore granted a certificate of appealability on the following question: “Whether granting a defendant a sentence reduction pursuant to Rule 35 constitutes a resentencing that re-starts the AEDPA time clock, allowing a defendant to collaterally attack his original conviction and sentence.” This appeal followed.

II.

In an appeal challenging a § 2255 ruling, we review legal issues de novo and factual findings for clear error. Lynn v. United States, 365 F.3d 1225, 1232 (11th Cir.2004). Whether a § 2255 motion is time-barred is a legal issue. Drury v. United States, 507 F.3d 1295, 1296 (11th Cir.2007).

A.

Section 2255 allows a federal prisoner to seek post-conviction relief from a sentence imposed in violation of the Constitution or laws of the United States or if it is otherwise subject to collateral attack.⁹ In the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Congress created a one-year statute of limitations for § 2255 motions, running from the latest of four dates.¹⁰ 28 U.S.C. § 2255(f). The relevant date here is “the date on which the judgment of conviction becomes final.” Id. (emphasis added).

Section 2255(f) does not define “judgment of conviction” or “final.” Nonetheless, we have concluded that when a defendant does not appeal his conviction or sentence, the judgment of conviction becomes final when the time for seeking that review expires. Mederos v. United States, 218 F.3d 1252, 1253 (11th Cir.2000) (noting that when no direct appeal was taken from the original judgment of conviction, the judgment of conviction became final when the time for filing a direct appeal expired); Akins v. United States, 204 F.3d 1086, 1089 n. 1 (11th Cir.2000) (“A conviction ordinarily becomes final when the opportunity for direct appeal of the judgment of conviction has been exhausted.”); cf. Clay v. United States, 537 U.S. 522, 527, 123 S.Ct. 1072, 1076, 155 L.Ed.2d 88 (2003) (“Finality attaches when this Court affirms a conviction on the merits on direct review or denies a petition for a writ of certiorari, or when the time for filing a certiorari petition expires.”).

At the time of Murphy's sentencing, a criminal defendant had ten days to file an appeal. Fed. R.App. P. 4(b)(1)(A) (2005) (amended 2009).¹¹ Therefore, had the district court never granted the Government's Rule 35(b) motion, it is perfectly clear that AEDPA's statute of limitations would have expired on May 9, 2005, and Murphy's § 2255 motion filed on August 3, 2007, would have been time-barred. Murphy contends that when the district court reduced his sentence under Rule 35(b), it entered a new “judgment of conviction.” We conclude that Congress has foreclosed this argument by statute, a conclusion that is confirmed by the decisions of our sister circuits and Congress's overriding intent in enacting AEDPA.

Rule 35(b) permits a district court, upon the Government's motion, to reduce a sentence to reflect a defendant's substantial assistance rendered after the entry of judgment. Fed.R.Crim.P. 35(b). In § 2255(f), Congress did not specify whether a Rule 35(b) reduction constitutes a new judgment of conviction or alters the finality of the judgment of conviction. But Congress did not legislate on a blank slate: “[W]henever Congress passes a new statute, it acts aware of all previous statutes on the same subject.” Erlenbaugh v. United States, 409 U.S. 239, 244, 93 S.Ct. 477, 480, 34 L.Ed.2d 446 (1972). Prior to AEDPA, Congress, in 18 U.S.C. § 3582, specified how a Rule 35(b) reduction would impact the finality of a judgment of conviction.

Section 3582 states that although a district court may “modify” a “sentence to imprisonment” under Rule 35(b), a “judgment of conviction that includes such a sentence constitutes a final judgment for all other purposes.” ¹² 18 U.S.C. § 3582(b)- (c) (emphasis added). The plain and obvious meaning of this language is that a Rule 35(b) reduction has no effect on the finality of the judgment of conviction. See Hughes Aircraft Co. v. Jacobson, 525 U.S. 432, 438, 119 S.Ct. 755, 760, 142 L.Ed.2d 881 (1999) (explaining that statutory construction begins with the language of the statute and when that language “provides a clear answer, it ends there as well”) (internal quotation marks omitted). The Senate Report accompanying § 3582 confirms that the plain meaning of the statute accords with Congress's intent. Congress explained that subsection (b) makes “clear” that though a prison sentence could be “modified” after...