Sanchez-Castellano v. United States

Opinion

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 Sanchez-Castellano v. United States No. 02-5081 ELECTRONIC CITATION: 2004 FED App. 0042P (6th Cir.) File Name: 04a0042p.06 _________________ COUNSEL UNITED STATES COURT OF APPEALS ARGUED: Robert C. Brooks, Memphis, Tennessee, for FOR THE SIXTH CIRCUIT Appellant. Timothy R. DiScenza, ASSISTANT UNITED _________________ STATES ATTORNEY, Memphis, Tennessee, for Appellee. ON BRIEF: Robert C. Brooks, Memphis, Tennessee, for MANUEL SANCHEZ- X Appellant. Timothy R. DiScenza, ASSISTANT UNITED CASTELLANO, - STATES ATTORNEY, Memphis, Tennessee, for Appellee. Petitioner-Appellant, - ROGERS, J., delivered the opinion of the court, in which - No. 02-5081 - COOK, J., joined. COHN, D. J. (pp. 9-10), delivered a v. > separate dissenting opinion. , - _________________ UNITED STATES OF AMERICA , - Respondent-Appellee. - OPINION - _________________ N Appeal from the United States District Court ROGERS, Circuit Judge. Appellant Manuel Sanchez- for the Western District of Tennessee at Memphis. Castellano appeals the denial for untimeliness of his motion Nos. 99-02510; 91-20047—Julia S. Gibbons, to vacate his sentence under 28 U.S.C. § 2255. The issue District Judge. presented in his appeal is whether, for a federal defendant who did not seek a direct appeal, the one-year statute of Argued: December 9, 2003 limitations for § 2255 cases starts ten days or forty days after entry of the judgment of conviction. The time for filing a Decided and Filed: February 9, 2004 direct appeal is ten days after entry of judgment, but pursuant to Federal Rule of Appellate Procedure 4(b)(4) a federal Before: ROGERS and COOK, Circuit Judges; COHN, defendant can seek an extension of time—for excusable District Judge.* neglect or good cause—up to the fortieth day after entry of judgment. Sanchez-Castellano maintains that the judgment did not become final until the last possible opportunity to seek review of his sentence had passed. He urges us to find that Rule 4(b)(4) provided an existing avenue for relief after the ten-day filing deadline had passed, and that therefore the judgment in his case did not become final until forty days after it was entered. Because we reject this statutory * The Honorab le Avern Cohn, United States District Judge for the interpretation as an unwarranted across-the-board extension Eastern District of Michigan, sitting by designation.

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of the statute of limitations for § 2255 motions, we affirm the attorney was unsure as to whether Sanchez-Castellano “was judgment of the district court. being sentenced correctly under the guidelines.” Sanchez- Castellano’s newly appointed counsel supplemented the In February 1991, Sanchez-Castellano was indicted on one § 2255 motion, adding a claim that Sanchez-Castellano’s count of conspiracy to possess 1600 kilograms of cocaine sentence violated Apprendi v. New Jersey, 530 U.S. 466 with intent to distribute and one count of possession of 351 (2000). kilograms of cocaine with intent to distribute. Sanchez- Castellano succeeded in evading arrest until January 1995. The district court, however, concluded that Sanchez- He subsequently escaped from custody and eluded law Castellano failed to file his § 2255 motion on time. As enforcement officers for another two years. After he was Sanchez-Castellano’s sentence did not seek direct appeal of returned to custody, Sanchez-Castellano and the Government his sentence, the judgment of conviction became final, reached a plea agreement, pursuant to which he pled guilty to according to the district court, on May 26, 1998. The district the conspiracy count and to one count of escape. The district court also noted, however, that Sanchez-Castellano’s motion court imposed a sentence of 292 months imprisonment and “landed in between two possible finality dates created by Fed. five years supervised release and entered the judgment on R. App. P. 4(b)”—the ten day period created by Rule 4(b)(1) May 13, 1998.1 Under Fed. R. App. P. 4(b)(1)(A), Sanchez- and the forty day period created by the addition of an Castellano had until May 26, 1998, to file a notice of appeal extension for excusable neglect under Rule 4(b)(4). The with the district court.2 Sanchez-Castellano did not appeal, district court resolved this question in favor of the ten days: nor did he move for an extension of time to appeal pursuant “Under a straightforward application of § 2255, defendant’s to Fed. R. App. P. 4(b)(4). original motion is untimely and barred by the statute of limitations for filing a motion under § 2255.” The district Sanchez-Castellano is deemed to have filed his § 2255 court also found that there was no basis for an equitable motion on June 6, 1999, when he presented it to prison tolling of the statute of limitations. authorities. See Houston v. Lack, 487 U.S. 266, 270 (1988). His motion raised three grounds for vacating his sentence. The district court further indicated how it would have First, he alleged that his attorney promised to file a direct decided the merits of Sanchez-Castellano’s claims, had the appeal but failed to do so. Second, he claimed that his § 2255 motion been filed on time. On the basis of conflicting attorney threatened to withdraw if Sanchez-Castellano did not testimony,3 the district court found on the preponderance of plead guilty and that the attorney assured him that he would the evidence that Sanchez-Castellano did not direct his lawyer only be sentenced to ten to twelve years if he took the plea to file an appeal. Also upon consideration of the credibility agreement. Third, Sanchez-Castellano maintained that his of witnesses before it, the district court “found the record devoid of any proof that [Sanchez-Castellano] was coerced 1 This matter was before Judge Jerome T urner during the guilty plea and sentencing, but was transferred to Judge Julia Sm ith Gib bons prior to 3 The district co urt held an evidentiary hearing on the § 2255 motion adjudication of the §2255 motion. to determine whether the statute of limitations period should be tolled by 2 trial counsel’s alleged disregard of instructions to appeal. On the The ten-day perio d following M ay 13, 199 8, end ed on M ay 23, a possibility that the district court would ultimately determine that the Saturday. The following Monday, M ay 25, 199 8, was a federal holid ay. § 2255 motion was timely (it did not), the court also permitted testimony See Fed. R. Ap p. Proc. 2 6(a). on the other issues. No. 02-5081 Sanchez-Castellano v. United States 5 6 Sanchez-Castellano v. United States No. 02-5081

into pleading guilty.” The district court further concluded final upon conclusion of direct review. See United States v. that Sanchez-Castellano’s Apprendi claim was without merit Cottage, 307 F.3d 494, 498 (6th Cir. 2002). When a federal because the sentencing judge had not “determined an amount criminal defendant takes a direct appeal to the court of of drugs or any other sentencing factor that produced a appeals, his judgment of conviction becomes final for § 2255 sentence beyond the base maximum penalty contemplated by purposes upon the expiration of the 90-day period in which the offense of conviction”; the sentencing judge moreover had the defendant could have petitioned for certiorari to the “not relied on any fact outside the plea agreement to Supreme Court, even when no certiorari petition has been determine drug quantity at sentencing.” filed. Clay v. United States, 537 U.S. 522, 532 (2003). By parity of reasoning, when a federal criminal defendant does The district court denied a certificate of appealability. This not appeal to the court of appeals, the judgment becomes final court granted a certificate of appealability on the issue of upon the expiration of the period in which the defendant whether Sanchez-Castellano’s § 2255 motion was timely filed could have appealed to the court of appeals, even when no within the applicable one-year limitations period. notice of appeal was filed. In most cases, that period is ten days, pursuant to Fed. R. App. P. 4(b)(1). However, in those Although reasonable judges might differ, the language of cases where “excusable neglect or good cause” is shown, the § 2255 appears clearly to require that, for statute of district court may extend the appeal time an additional thirty limitations purposes, an unappealed district court judgment of days. Fed. R. App. P. 4(b)(4). conviction becomes “final” ten days after the entry of judgment, at least where the defendant has not actually sought There are three ways in which the possibility of a Rule an extension of appeal time for good cause or excusable 4(b)(4) extension could affect a determination of finality neglect.4 under § 2255. First, the ten-day rule could be uniformly applied, regardless of whether or not a Rule 4(b)(4) motion The language of § 2255 provides that, except in has been made or granted. Second, the ten-day rule could be circumstances not present or asserted here, the one-year applied except in those cases in which an extension is sought statute of limitations for § 2255 motions begins to run on “the and granted within the forty days, in which case an date on which the judgment of conviction becomes final.” 28 unappealed judgment of conviction would be final at the U.S.C. § 2255. As a general matter, convictions become expiration of the extended time. Third, a forty-day rule could be uniformly applied, regardless of whether or not a Rule 4(b)(4) motion has been made or granted. It is not necessary 4 On this purely legal issue we have found no case law to guide us. to decide between the first and second interpretations in the In an unrepo rted d ecision , the Fourth Circuit held that a § 2255 motion instant case. This is because Sanchez-Castellano did not seek was untimely even giving de fendant the benefit of the ten-day appeal or obtain an extension. In order to rule for Sanchez- period plus the thirty-day excusab le neglect period in F ed. R . App. P . Castellano, we must accept the third interpretation, and that 4(b). United States v. Walker, No. 99-684 7, 1999 U .S.App. LEX IS 22478, at *2 (4th Cir. Aug. 31, 1999). T he opinion thus mere ly is what Sanchez-Castellano urges upon us on this appeal. The acknowledged the possibility of the forty-day argume nt. The parties cite argument however turns the exception into the rule, and is no other cases on point. The district court cited two cases applying a ten- ultimately unpersuasive. day rule where § 2255 would have been late under a forty-day rule as well. United States v. Noble, No. 97-6354, 1998 U.S. App. LEXIS 18370 To adopt the third interpretation would delay the start of the (10th Cir. Aug. 10 , 199 8); Un ited States v. Concepcion, No. 98-2372, 1999 U .S. Dist. LEX IS 5125, at *6 (E.D. Pa. Ap r. 19, 1999). limitations period until thirty days later than finality actually No. 02-5081 Sanchez-Castellano v. United States 7 8 Sanchez-Castellano v. United States No. 02-5081

occurs in most cases. This is not consistent with the there has been good cause or excusable neglect. While it congressional intent to set a one-year, as opposed to a makes sense to toll the limitations period so that a defendant thirteen-month, statute of limitations. Moreover, there are no may file a petition that he is legally entitled to file, it does not equitable considerations militating in favor of the forty-day make sense to toll it so that he may seek permission from the interpretation. Under all three possible interpretations the district court to file a late notice for exceptional reasons. determination of when the judgment was final is made, for statute of limitations purposes, retrospectively and long after Moreover, under Sanchez-Castellano’s construction, all the date actually occurred. We must merely determine which defendants would be entitled to this extended period of time, date corresponds best with the statutory language. At least in regardless of whether the district court found excusable the absence of an actual district court determination of good neglect. Suppose he filed a motion to extend the filing cause or excusable neglect, that date is ten days after the entry deadline under Rule 4(b)(4) on May 30, 1998, seventeen days of judgment.5 after the entry of the judgment. Then, three days later, the district court denied the motion, finding no evidence of good Sanchez-Castellano contends that, because he had the cause or excusable neglect. If Sanchez-Castellano is correct, opportunity to seek Rule 4(b)(4) relief, the judgment against for purposes of the § 2255 limitations period, the judgment in him should have been considered pending during the time that his case would become final twenty days after his last avenue he could have, but did not, seek relief. He compares this to of direct review had closed.6 It is unlikely that Congress the practice of considering a judgment affirmed on appeal as intended such an outcome. pending until the time to seek a writ of certiorari in the Supreme Court has expired. Sanchez-Castellano points out For the foregoing reasons, an unappealed federal criminal that a conviction is not final for § 2255 purposes until the judgment becomes final ten days after it is entered, for time for seeking certiorari has expired, when the defendant purposes of the § 2255 statute of limitations, at least where does not actually seek certiorari. there has been no district court extension of appeal time for good cause or excusable neglect. The judgment of the district The time period for seeking certiorari, however, is more court is AFFIRMED. accurately compared with the standard ten day filing period for a direct appeal, and not the extension for excusable neglect. The ten-day period for filing an appeal and the ninety-day period for filing a certiorari petition are both periods during which the defendant is permitted to file as of right. The thirty-day extension period, in contrast, is only granted upon request to the district court, and then only on a showing that most litigants presumably cannot make—that

6 5 The dissent maintains that this will not be the case b ecause finality W e do not decide the question of whether the jud gment against a will come for defendants seeking relief at the time the district court rules defendant who applie s for, and receives, a Rule 4(b)(4) extension of the on the motion. Such a rule, however, would benefit those defendants who filing deadline, but fails ultimately to seek a direct appeal, becomes final fail to seek an extension under Rule 4 (b)(4 ) by giving them the full forty forty days after entry. days while shortchanging tho se defendants who act diligently. No. 02-5081 Sanchez-Castellano v. United States 9 10 Sanchez-Castellano v. United States No. 02-5081

______________ Castellano had filed a motion to extend time to file an appeal under Rule 4(b)(4) seventeen days after the entry of judgment DISSENT of conviction and the district court denied it three days later, ______________ then “the judgment would become final twenty days after his last avenue of direct review had closed.” This is not entirely COHN, District Judge, dissenting. Because I believe that correct. The judgment would not be final twenty days after the statute of limitations should start to run forty days after the last avenue of direct review had closed; rather, it would be the entry of the judgment of conviction, I respectfully dissent. final when the last avenue for direct review had closed, i.e. I am convinced that the better view is to include the thirty-day when the district court denied the motion. At that point, there excusable neglect period in determining when Sanchez- is no longer an available avenue for seeking an appeal. In any Castellano’s conviction became final since he did not file a event, this issue is not before us. In this case, Sanchez- notice of appeal. Whether or not a motion for extension of Castellano’s avenue for appeal was foreclosed, and time would have been be granted is irrelevant in this case. consequently the judgment of conviction became “final,” What is relevant is that an extension of time is available. when the forty days expired. Only when the time for seeking an appeal has been exhausted can the conviction be said to be “final” and the statute of limitations begin to run. The fact that Sanchez-Castellano did not file a motion for an extension of time is also irrelevant. What is also relevant is the fact that an avenue for appeal was still available to him for forty days after the judgment was entered. 28 U.S.C. § 2255 simply states that the statute of limitations begins to run on “the date on which the judgment of conviction becomes final.” The statute offers no guidance as to the meaning of “final.” Since the statute is silent, the choice of a time period is left to the Court. I see no good reason not to accept Sanchez-Castellano’s view that the forty- day time period is the appropriate one. No purpose is to be served by limiting the time period to ten days, except to limit the number of habeas petitions which are considered on the merits. Under the circumstances here and in like cases, I believe that “final” should be interpreted to mean when the opportunity for further review has completely expired. This does not occur until forty days after the judgment of conviction is entered. Nor do I believe that adopting this approach will, as the majority suggests, entitle all defendants “to this extended period of time, regardless of whether the district court found excusable neglect.” The majority says that if Sanchez-