United States v. Anthony

• Citation: 25 F.4th 792
• Decision Date: 08 February 2022
• Docket Number: No. 20-6134,20-6134
• Parties: UNITED STATES of America, Plaintiff - Appellee, v. Curtis A. ANTHONY, Defendant - Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

25 F.4th 792

UNITED STATES of America, Plaintiff - Appellee,

v.Curtis A. ANTHONY, Defendant - Appellant.

No. 20-6134

United States Court of Appeals, Tenth Circuit.

FILED February 8, 2022

Curtis A. Anthony, Pro Se.

Dean Sanderford, Assistant Federal Public Defender (Virginia L. Grady, Federal Public Defender, with him on the briefs), Office of the Federal Public Defender, Denver, Colorado, for Defendant-Appellant.

Steven W. Creager, Assistant United States Attorney (Robert J. Troester, Acting United States Attorney, and K. McKenzie Anderson, Assistant United States Attorney, with him on the brief), Office of United States Attorney, Oklahoma City, Oklahoma, for Plaintiff-Appellee.

Before TYMKOVICH, Chief Judge, MATHESON, and PHILLIPS, Circuit Judges.

TYMKOVICH, Chief Judge.

A federal prisoner has one year to file a motion under 28 U.S.C. § 2255 challenging his sentence. In most cases—and in this case—the one-year limitations period begins to run when the "judgment of conviction" becomes final.

This appeal addresses an open question: when does the judgment of conviction become final in a deferred restitution case? In Curtis Anthony's case, the district court sentenced him to a custodial sentence shortly after trial but did not determine the restitution amount until several months later. When Anthony later filed a § 2255 motion challenging his conviction, the district court dismissed the motion as untimely. The court concluded Anthony's one-year limitations period under § 2255 began to run when Anthony's time to appeal the initial judgment expired even though restitution proceedings were pending on direct appeal.

We conclude that a judgment of conviction is not final for § 2255 limitations purposes until the defendant's sentence becomes final upon the conclusion of direct review. Anthony's judgment of conviction has yet to become final because restitution is a component of his sentence and direct review of the restitution proceedings is still ongoing. Thus, the district court should not have dismissed Anthony's § 2255 motion as untimely.

We therefore REVERSE the district court's order dismissing Anthony's § 2255 motion as untimely, VACATE the resulting judgment, and REMAND for further proceedings consistent with this opinion.

I. Background

After a jury convicted Curtis Anthony of child sex trafficking and conspiracy to commit child sex trafficking, the trial court sentenced Anthony to a term of imprisonment and a term of supervised release. On October 26, 2017, the district court entered a judgment containing Anthony's convictions and sentence. The judgment noted that Anthony must make restitution but that the determination of restitution would be deferred until a later date. Several months later, on March 5, 2018, the district court amended the initial judgment to include the amount of restitution Anthony had to pay.

On March 16, 2018, Anthony's attorney timely filed a notice of appeal challenging only the amount of restitution imposed by the amended judgment. Anthony claims that he told his attorney he wanted to appeal the conviction and custodial sentence but that his attorney nevertheless decided to limit the appeal to the restitution order.

While his restitution appeal was pending, Anthony filed a motion pursuant to 28 U.S.C. § 2255 seeking to vacate, set aside, or correct his sentence. In the motion, Anthony alleged his trial counsel was ineffective for failing to appeal his conviction and sentence. The district court struck Anthony's motion because it found that Anthony's trial counsel "did in fact file a direct appeal and that appeal is currently pending before the Tenth Circuit." Supp. R., Vol. 1 at 34. We later granted Anthony's appeal in part, vacated the restitution order, and remanded for a recalculation of the restitution amount. See United States v. Anthony , 942 F.3d 955 (10th Cir. 2019).

On June 8, 2020, while the remanded restitution proceedings were pending, Anthony filed another motion under § 2255 to vacate his conviction and sentence. Anthony again claimed that his counsel provided ineffective assistance for limiting Anthony's direct appeal to restitution and not contesting his conviction or custodial sentence. Anthony also alleged his counsel filed a pre-trial motion to be removed from Anthony's case because his counsel was "convinced he could not completely defend Anthony against charges of the federal [government]." R., Vol. 6 at 26. Anthony did not challenge the restitution portion of the judgment in his second § 2255 motion.

The district court dismissed Anthony's second § 2255 motion as untimely. According to the court, Anthony failed to file the motion within one year of the date on which his judgment of conviction became final, as required by § 2255.

The district court reasoned that Anthony's judgment of conviction became final when the time for filing an appeal of the initial judgment—containing Anthony's convictions and custodial sentence but not the restitution amount—expired. As the district court explained, the initial judgment was entered by the court on October 26, 2017. And because Anthony did not appeal that judgment within the 14-day timeframe set forth in Fed. R. App. P. 4(b)(1)(A)(i),¹ the judgment became final on November 9, 2017, according to the district court. Anthony therefore had until November 10, 2018—one year later—to file his § 2255 petition challenging aspects of the initial sentence. Since Anthony filed his § 2255 petition on June 8, 2020, the district court concluded Anthony's petition was untimely.

In dismissing Anthony's motion, the court acknowledged that Anthony properly filed an appeal but that the "appeal challenged only the amount of restitution—an issue not raised in the [ § 2255 ] Motion." R., Vol. 6 at 58. According to the district court, "a timely § 2255 Motion raising the issues herein had to be filed not later than November 10, 2018." Id. The court also determined that the remand for resentencing and resulting amended judgment did not "extend" the limitations period. Id.

Anthony appealed, arguing that his motion was not untimely because his judgment of conviction had yet to become final due to the ongoing restitution proceedings. We granted Anthony a certificate of appealability on the question of whether the district court incorrectly applied the one-year statute of limitations under § 2255.

II. Analysis

To determine whether Anthony's motion was timely, we must interpret 28 U.S.C. § 2255, a provision of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Section 2255 provides that a "1-year period of limitation shall apply to a motion under this section." 28 U.S.C. § 2255(f). The statute lists four possible start dates for the one-year limitations period. Id. The most common start date—and the one applicable to Anthony's timeline—is "the date on which the judgment of conviction becomes final." Id. § 2255(f)(1).

The district court concluded that Anthony's judgment of conviction became final for § 2255 purposes on November 9, 2017. That is when Anthony's time to file an appeal of the initial judgment expired, according to the district court. Anthony contends restitution is part of the judgment of conviction and that his judgment of conviction will only become final for § 2255 purposes when the pending restitution proceedings reach a final resolution.

?

To decide whether the district court erred, we must apply the requirements of § 2255 to the procedural timeline of Anthony's case. Specifically, we need to establish when Anthony's judgment of conviction became final and triggered § 2255 ’s one-year period of limitations. As we see it, this determination involves two inquiries. First, is a restitution order part of the judgment of conviction under § 2255 ? Second, if restitution is part of the judgment of conviction, when does the one-year limitations period begin if the district court waits until after sentencing to impose a restitution amount, and that restitution order is subsequently appealed?

We review these questions de novo. United States v. Denny , 694 F.3d 1185, 1189 (10th Cir. 2012).

A. Restitution as Part of the Sentence

It is undisputed that the "judgment of conviction" includes the defendant's sentence as well as his conviction. See Berman v. United States , 302 U.S. 211, 212, 58 S.Ct. 164, 82 L.Ed. 204 (1937) ("Final judgment in a criminal case means sentence. The sentence is the judgment."). Though Congress did not define "judgment of conviction" in § 2255, Congress has explained elsewhere that "[i]n the judgment of conviction, the court must set forth the plea, the jury verdict or the court's findings, the adjudication, and the sentence." Fed. R. Crim. P. 32(k)(1). The Supreme Court has also told us that the judgment of conviction includes the defendant's sentence. In the AEDPA context, the Supreme Court has held that a defendant's judgment of conviction did not become final "until both his conviction and sentence became final."² Burton v. Stewart , 549 U.S. 147, 156–57, 127 S.Ct. 793, 166 L.Ed.2d 628 (2007) (internal quotation marks omitted). Given this background, it is unsurprising that the parties in this case agree that the "judgment of conviction" includes both the conviction and the sentence.

While the parties agree that the judgment of conviction includes the sentence, the parties disagree about whether restitution is part of the sentence. The government contends that restitution is not part of the sentence but rather a sanction that is imposed in addition to the sentence.

We conclude that restitution is a component of a criminal sentence and therefore included in the judgment of conviction. Our conclusion is based on the restitution statutes and Supreme Court precedent, both of which treat restitution as part of the defendant's sentence.

The federal restitution statutes generally refer to restitution as being part of the criminal sentence. For instance, the statute setting forth the procedures for issuing an order of restitution...