Hilel v. United States

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 11-10987 OCTOBER 25, 2011
Non-Argument Calendar JOHN LEY
CLERK
________________________
D.C. Docket Nos. 9:11-cv-80141-DTKH
9:07-cr-80114-DTKH
PAULO HENRIQUE HILEL,
llllllllllllllllllllllllllllllllllllllll Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(October 25, 2011)
Before TJOFLAT, CARNES and FAY, Circuit Judges.
PER CURIAM:
While the district court’s ruling denying petitioner’s motion for a new trial,
see Fed. R. Crim. P. 33, was pending in this court on appeal, petitioner moved the
district court pursuant to 28 U.S.C. § 2255 for relief from his conviction for
conspiring to commit alien smuggling. Over petitioner’s and the Government’s
objection, the district court dismissed petitioner’s § 2255 motion without
prejudice. (We subsequently affirmed the district court’s Rule 33 ruling, United
States v. Hilel, 352 Fed. App’x 378 (11th Cir. 2009).)
Pursuant to § 2255, a defendant has one year from, inter alia, the date that
his conviction became final, to file a § 2255 motion to vacate. 28 U.S.C.
§ 2255(f)(1). In this case (as in all court of appeals affirmances of convictions),
the petitioner had 90 days following our affirmance of his conspiracy conviction
to petition the Supreme Court for a writ of certiorari to review our decision. He
did not petition the Court for the writ, so his conviction became final after this 90-
days period expired. Kaufmann v. United States, 282 F.3d 1336, 1338 (11th Cir.
2002).
Under Rule 33, upon a defendant’s motion, “the court may vacate any
judgment and grant a new trial if the interest of justice so requires.”
Fed.R.Crim.P. 33(a). Filing a Rule 33 motion for new trial is not considered an
extension of the direct appeal, and does not toll the § 2255(f)(1) one-year
limitations period for filing a § 2255 motion. Barnes v. United States, 437 F.3d
1079 (11th Cir. 2006).
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As both parties agree, the dismissal without prejudice here had the effect of
a dismissal with prejudice, because of the impact of the § 2255(f)(1) time-bar.
Given this consequence, the court should have stayed proceedings on the § 2255
motion until the Rule 33 proceeding was resolved. We therefore Vacate the
district court’s judgment of dismissal and REMAND the case for further
consideration of petitioner’s § 2255 motion.
VACATED AND REMANDED.
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