U.S. v. Buckles

• Decision Date: 02 June 2011
• Docket Number: No. 08–36031.,08–36031.
• Parties: UNITED STATES of America, Plaintiff–Appellee,v.Morris Duane BUCKLES, Defendant–Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

647 F.3d 883

11 Cal. Daily Op. Serv. 6630

2011 Daily Journal D.A.R. 8008

UNITED STATES of America, Plaintiff–Appellee,

v.Morris Duane BUCKLES, Defendant–Appellant.

No. 08–36031.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Nov. 2, 2010.Filed June 2, 2011.

Lori Anne Harper Suek, Office of the United States Attorney, Billings, MT, for the appellee.David F. Ness, Federal Defenders of Montana, Great Falls, MT, for the appellant.

Appeal from the United States District Court for the District of Montana, Sam E. Haddon, District Judge, Presiding. D.C. Nos. 4:08–cv–00075–SEH, 4:03–cr–00090–SEH–1.Before: WILLIAM A. FLETCHER and RAYMOND C. FISHER, Circuit Judges, and DAVID C. BURY, District Judge.^*

OPINION

W. FLETCHER, Circuit Judge:

Federal prisoner Morris Buckles appeals the district court's dismissal of his 28 U.S.C. § 2255 motion as untimely. Buckles argues that our order recalling the mandate so that we could consider his motion for appointment of certiorari counsel restarted the clock for the 90–day period within which he was required to petition the Supreme Court for certiorari review of his conviction on direct appeal. If our order restarted the clock, Buckles's petition for certiorari was timely. If the petition was timely, his subsequent § 2255 motion was timely as well. Conversely, if his petition for certiorari was untimely, so was his § 2255 motion. In the event that his § 2255 motion was untimely, Buckles contends in the alternative that misconduct by his attorney and misinformation provided by someone in the office of the Ninth Circuit Clerk entitle him to equitable tolling.

We hold that our order recalling the mandate did not restart the clock for purposes of petitioning for certiorari. Buckles's petition for certiorari and, in turn, his § 2255 motion, were therefore untimely. However, Buckles's contention that this court's Clerk provided him with inaccurate advice, if true, may entitle him to equitable tolling. We therefore vacate the dismissal of his § 2255 motion and remand for further proceedings.

I. Background

After a bench trial in the District of Montana, Buckles was convicted of possession of methamphetamine with intent to distribute and possession of marijuana with intent to distribute, both in violation of 21 U.S.C. § 841(a)(1). He was sentenced to concurrent terms of 120 months. On February 12, 2007, we affirmed. United States v. Buckles, 220 Fed.Appx. 631 (9th Cir.2007). On March 2, 2007, 18 days after the entry of judgment, Buckles, through counsel, petitioned for panel rehearing and/or rehearing en banc. Although the petition was four days late, see Fed. R.App. P. 35(c), 40(a)(1), our Clerk exercised her discretion under General Order 6.3a to file the late petition. See Fed. R.App. P. 35(c); Adv. Comm. Note 1 to 9th Cir. R. 35–1 to 35–3; 9th Cir. Gen. Order 6.3a (“Upon motion or sua sponte, the Clerk may grant one (1) initial extension of time of no more than seven (7) calendar days for the filing of a petition for rehearing or petition for rehearing en banc in cases in which the petition must be filed within fourteen (14) days from entry of judgment.”). We denied panel rehearing and rehearing en banc on April 3, 2007. The mandate issued on April 11, 2007. See Fed. R.App. P. 41(b).

Buckles, then incarcerated, sought to petition the United States Supreme Court for certiorari, but could no longer afford to pay his retained counsel. Buckles was aware of Ninth Circuit Rule 4–1(e), which provides:

In cases in which a defendant who had retained counsel ... wishes to file a petition for writ of certiorari in the United States Supreme Court ... and is financially unable to obtain representation for this purpose, this Court will entertain a motion for appointment of counsel within 21 days from ... the denial of rehearing. It is the duty of retained counsel to assist the client in preparing and filing a motion for appointment of counsel and a financial affidavit under this subsection.

On April 24, 2007—the 21st day after we denied rehearing—Buckles mailed counsel a letter “officially requesting that you assistance [sic] me in filing a motion for appointment of counsel to the Ninth Circuit so that I can have an attorney file a writ of certiorari.... I am making this request to you pursuant to Ninth Circuit Rule 4–1(e).” On the same day, Buckles forwarded a copy of this letter to our Clerk. On May 3, 2007, Buckles mailed our Clerk a pro se motion styled a “Supplemental Motion for Appointment of Counsel to File a Petition for Writ of Certiorari.” Buckles stated in his “supplemental motion” that he had telephoned counsel and had requested assistance in moving for appointment of counsel. Buckles stated that counsel “informed [him] that he had to check into the procedure that he would have to follow, and asked [Buckles] to check back with him later.” Buckles stated that he subsequently made “many” unsuccessful attempts to contact counsel. In his May 3 “Supplemental Motion,” Buckles asked us to construe his April 24 letter as a timely Rule 4–1(e) motion to appoint counsel.

On June 12, 2007, we issued a one-paragraph order that read as follows:

We recall the mandate in this case to consider Buckles' supplemental motion for appointment of counsel. We grant his request to construe his letter filed April 24, 2007 as a timely motion to appoint counsel under Ninth Circuit Rule 4–1(e). So construed, we DENY the motion.

The mandate reissued on June 20, 2007.

On September 5, 2007, Buckles filed a pro se petition for certiorari with the Supreme Court. On September 14, 2007, the Supreme Court Clerk wrote a letter to Buckles stating that his petition had been “filed ... and placed on the docket September 14, 2007 as No. 07–6495.” The letter then stated that Buckles's petition “was due July 2, 2007; therefore the petition was filed with a notation as to its untimeliness.” It appears that the Supreme Court Clerk believed that the time to file Buckles's petition for certiorari had begun to run on April 3, 2007, when our court denied rehearing, and thus expired 90 days later, on July 2, 2007. See Sup.Ct. R. 13(3) (“[I]f the lower court appropriately entertains an untimely petition for rehearing ... the time to file the petition for a writ of certiorari for all parties ... runs from the date of the denial of rehearing.”); Sup.Ct. R. 13(1) (90–day deadline for certiorari review).

On September 20, 2007, Buckles, still pro se, filed a declaration with the Supreme Court Clerk stating that on June 4, 2007, his sister Bonnie Weinberger had telephoned the office of the Clerk for the Ninth Circuit to inquire about the status of his Rule 4–1(e) motion. Buckles declared that “the Clerk for the Ninth Circuit Court of Appeals told Bonnie Weinberger that the timeline for filing the Writ of Certiorari would be stayed until a ruling was made on the Petition for Appointment of Counsel and a new mandate date would be issued.” Buckles declared that he interpreted the statement to his sister to mean that he needed to file his petition for certiorari within “90 days of the recalled mandate from the Ninth Circuit”—meaning, in Buckles's view, 90 days from June 12, the day our court recalled the mandate in his case. The Supreme Court Clerk did not respond to Buckles's declaration. The Supreme Court denied Buckles's petition for certiorari without explanation on October 15, 2007. Buckles v. United States, 552 U.S. 982, 128 S.Ct. 456, 169 L.Ed.2d 319 (2007) (“Petition for writ of certiorari to the United States Court of Appeals for the Ninth Circuit denied.”).

Buckles filed a pro se § 2255 motion in the district court on October 13, 2008. The district court held that the motion was untimely and dismissed it with prejudice. We granted a certificate of appealability limited to the timeliness question, granted Buckles's motion to proceed in forma pauperis, and appointed counsel. This appeal followed.

II. Standard of Review

We review the dismissal of a § 2255 motion on timeliness grounds de novo. United States v. Battles, 362 F.3d 1195, 1196 (9th Cir.2004) (citing Laws v. Lamarque, 351 F.3d 919, 922 (9th Cir.2003)). When the facts are not disputed, we review a request for equitable tolling de novo. United States v. Aguirre–Ganceda, 592 F.3d 1043, 1045 (9th Cir.2010) (citing Battles, 362 F.3d at 1196).

III. Discussion

A. Timeliness

Section 2255 provides that “[a] 1–year period of limitation shall apply to a motion under this section. The limitation period shall run from ... the date on which the judgment of conviction becomes final.” 28 U.S.C. § 2255(f)(1). “Finality attaches when [the Supreme 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.” Clay v. United States, 537 U.S. 522, 527, 123 S.Ct. 1072, 155 L.Ed.2d 88 (2003). See also Jimenez v. Quarterman, 555 U.S. 113, 129 S.Ct. 681, 685, 172 L.Ed.2d 475 (2009) (same); Aguirre–Ganceda, 592 F.3d at 1045 (same). Determining whether Buckles's § 2255 motion was timely therefore requires us to ascertain the date on which his conviction became final. That task, in turn, requires us to identify the date on which Buckles's petition for certiorari was due. If his petition for certiorari was timely, his conviction became final when the Supreme Court denied the petition. That date was October 15, 2007. If his petition for certiorari was untimely, his conviction became final ninety days after we denied rehearing. That date was July 2, 2007. For the reasons that follow, we conclude that Buckles's petition for certiorari was untimely, and that the one-year limitations period for his § 2255 motion therefore ran from July 2, 2007. Consequently, Buckles's § 2255 motion, filed on October 13, 2008, was not timely.

Supreme Court Rule 13(1) provides that “a petition for a writ of certiorari to review a judgment in any case, civil or criminal, entered by ... a United...