United States v. Jose Aguirre-Ganceda ( 2010 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 08-35696
Plaintiff-Appellee, D.C. Nos.

v. 2:08-cv-05003-EFS
2:03-cr-06016-EFS-
JOSE MANUEL AGUIRRE-GANCEDA, 1
Defendant-Appellant.
 OPINION
Appeal from the United States District Court
for the Eastern District of Washington
Edward F. Shea, District Judge, Presiding
Argued and Submitted
December 7, 2009—Seattle, Washington
Filed January 19, 2010
Before: Robert R. Beezer, Ronald M. Gould and
Richard C. Tallman, Circuit Judges.
Opinion by Judge Beezer
1263
UNITED STATES v. AGUIRRE-GANCEDA 1265
COUNSEL
Matthew Campbell, Assistant Federal Public Defender, Spo-
kane, Washington, for the defendants-appellants.
Gregory M. Shogren, Assistant United States Attorney, Yak-
ima, Washington, for the plaintiff-appellee.
OPINION
BEEZER, Circuit Judge:
Jose Manuel Aguirre-Ganceda appeals the district court’s
order denying his 28 U.S.C. § 2255 motion to vacate, set
aside or correct his prison sentence. The district court rejected
the motion and concluded that it was untimely because it was
filed more than one year after the Supreme Court denied cer-
tiorari in his criminal case. Aguirre argues that the one-year
limitation period for filing a section 2255 motion runs not
from the denial of his petition for a writ of certiorari, but from
the denial of his subsequent petition for rehearing of that
denial. Aguirre alternatively asks the court to toll the limita-
tion period because he has allegedly limited English profi-
1266 UNITED STATES v. AGUIRRE-GANCEDA
ciency and his lawyer misadvised him as to the limitation
period.
We have jurisdiction over this appeal pursuant to 28 U.S.C.
§§ 2253 and 2255. We hold that the district court properly
determined that the judgment of conviction became final upon
the Supreme Court’s denial of certiorari. We also hold that the
district court correctly declined to apply equitable tolling.
I
On August 18, 2004, Aguirre was sentenced to life impris-
onment following his trial and conviction in federal district
court for six counts of methamphetamine-related offenses.
The conviction was affirmed on appeal.
Aguirre petitioned for a writ of certiorari, which the
Supreme Court denied on October 16, 2006. Aguirre then
petitioned for rehearing of the Court’s denial of his petition
for a writ of certiorari, which the Court denied on January 8,
2007.
Aguirre moved the district court to vacate, set aside or cor-
rect his sentence under 28 U.S.C. § 2255 on January 2, 2008,
more than one year after the Court’s denial of his petition for
a writ of certiorari but less than one year after the Court’s
denial of his petition for rehearing. In this motion, Aguirre
alleged that he received ineffective assistance of counsel at
trial and that his sentence violates the Sixth Amendment. The
district court denied the motion as untimely based on its con-
clusion that Aguirre’s conviction became final, and the one-
year statute of limitation began to toll, upon the Supreme
Court’s order denying the petition for a writ of certiorari. The
district court also held that Aguirre was not entitled to equita-
ble tolling of the one-year limitation period because he did not
demonstrate the requisite extraordinary circumstances.
UNITED STATES v. AGUIRRE-GANCEDA 1267
The district court granted Aguirre’s request for a certificate
of appealability under 28 U.S.C. § 2253(c). Aguirre timely
appeals.
II
We review de novo the district court’s denial of a 28 U.S.C.
§ 2255 motion. See United States v. Gamba, 541 F.3d 895,
898 (9th Cir. 2008). We also review de novo a request for
equitable tolling. United States v. Battles, 362 F.3d 1195,
1196 (9th Cir. 2004). We review the district court’s factual
findings for clear error. Id.
III
[1] Section 2255 states,
(f) A 1-year period of limitation shall apply to a
motion under this section. The limitation period shall
run from the latest of—
(1) the date on which the judgment of con-
viction becomes final; . . . .
28 U.S.C. § 2255. The statute does not define the term “final,”
and the issue is one of first impression in this circuit.1
[2] We follow the Supreme Court’s clear guidance and hold
that finality occurs when the Supreme Court “affirms a con-
viction 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
1
Aguirre argues that our circuit already decided this issue in English v.
United States, 42 F.3d 473 (9th Cir. 1994). Yet English dealt with an
entirely different issue, procedural default of claims on direct review, and
was decided before Congress enacted the one-year statute of limitation in
1996.
1268 UNITED STATES v. AGUIRRE-GANCEDA
(2003); see also Jimenez v. Quarterman, 129 S. Ct. 681, 685
(2009) (“With respect to postconviction relief for federal pris-
oners, this Court has held that the conclusion of direct review
occurs when ‘this Court affirms a conviction on the merits on
direct review or denies a petition for a writ of certiorari.’ ”).
Our holding is consistent with that of the seven other cir-
cuits that have reached this issue. See, e.g., Drury v. United
States, 507 F.3d 1295, 1296-97 (11th Cir. 2007) (reviewing
the positions of the First, Fourth, Fifth, Seventh, Eighth and
Tenth Circuits). These circuits reached this result by looking
to Supreme Court Rule 16.3, which provides that “[w]henever
the Court denies a petition for a writ of certiorari, the . . .
order of denial will not be suspended pending disposition of
a petition for rehearing except by order of the Court or a Jus-
tice.”
IV
[3] Even though Aguirre’s section 2255 motion was
untimely, we may toll the one-year limitation period if (1) the
petitioner has diligently pursued his rights, and (2) extraordi-
nary circumstances exist. Pace v. DiGuglielmo, 544 U.S. 408,
418 (2005). Still, “the threshold necessary to trigger equitable
tolling . . . is very high.” Mendoza v. Carey, 449 F.3d 1065,
1068 (9th Cir. 2006).
[4] Aguirre has not demonstrated extraordinary circum-
stances. Extraordinary circumstances do not include a law-
yer’s miscalculation of a limitation period. Frye v. Hickman,
273 F.3d 1144, 1146 (9th Cir. 2001). Nor has Aguirre demon-
strated that “he was unable, despite diligent efforts, to procure
either legal materials in his own language or translation assis-
tance from an inmate, library personnel, or other source.”
Mendoza, 449 F.3d at 1070. In fact, Aguirre declined the
assistance of a translator and testified at his trial in English.
AFFIRMED.