United States v. Weldon Gilbert

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-36006
Plaintiff-Appellee,
D.C. Nos.
v. 3:12-cv-05900-BHS
3:07-cr-05732-BHS-1
WELDON MARC GILBERT,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the Western District of Washington
Benjamin H. Settle, District Judge, Presiding
Argued and Submitted
September 3, 2015—Seattle, Washington
Filed December 7, 2015
Before: M. Margaret McKeown, Ronald M. Gould,
and N. Randy Smith, Circuit Judges.
Opinion by Judge Gould
2 UNITED STATES V. GILBERT
SUMMARY*
28 U.S.C. § 2255
The panel affirmed the district court’s denial of a federal
prisoner’s 28 U.S.C. § 2255 motion as time barred.
The panel held that a sentence of incarceration coupled
with an unspecified amount of restitution is a sufficiently
final judgment to support a direct appeal, and that it follows
that once the time for filing a direct appeal of this type of
judgment expires, the one-year limitation period under
28 U.S.C. § 2255(f) to file a collateral attack on a federal
conviction is triggered. The panel held that when a judgment
imposes a sentence but leaves the amount of restitution to be
determined, the one-year statute of limitations to file a § 2255
motion does not restart when the specific amount of
restitution is later entered.
The panel held that the prisoner waived his claim that he
is entitled to equitable tolling, but that even if not waived, the
claim has no merit. The panel wrote that assuming prisoner’s
counsel gave erroneous advice on the filing deadline, this is
not the kind of extraordinary circumstance that compels
equitable tolling.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. GILBERT 3
COUNSEL
Paula T. Olson (argued), Law Office of Paula T. Olson,
Tacoma, Washington, for Defendant-Appellant.
Michael Dion (argued), Assistant United States Attorney,
Seattle, Washington, for Plaintiff-Appellee.
OPINION
GOULD, Circuit Judge:
Federal prisoner Weldon Gilbert appeals the district
court’s denial of his 28 U.S.C. § 2255 motion as time barred.
On April 23, 2009, Gilbert pleaded guilty in federal court to
multiple counts of the production of child pornography,
transportation of a minor to engage in illegal sexual activity,
and obstruction of justice. The plea agreement recommended
a sentencing range of 228 to 300 months and required Gilbert
to forfeit various properties—including his home, helicopter,
seaplane, and speedboat—to pay restitution to his victims.
On November 16, 2009, the district court sentenced Gilbert
to 300 months of imprisonment and lifetime supervision.
Because Gilbert’s assets were still in the process of being
liquidated, the district judge left the exact amount of
restitution “TBD” (to be determined).
Gilbert claims that while he was in state court on related
charges that his counsel advised him that he could not file a
§ 2255 motion challenging his federal sentence until the final
amount of restitution was entered. Gilbert also claims that
counsel advised that the one-year limitation to file a § 2255
motion would “toll” pending the outcome in state court.
4 UNITED STATES V. GILBERT
Gilbert states that he relied on this advice and delayed filing
a § 2255 motion. The state proceedings concluded on
November 6, 2012.
Liquidating Gilbert’s assets and working out the details of
restitution took considerable time. On October 7, 2011, the
district court entered an amended judgment setting Gilbert’s
total restitution to victims at $1,072,175.76. With the
exception of the amount of restitution, the rest of Gilbert’s
sentence remained unchanged.
On October 10, 2012, Gilbert filed a § 2255 motion in
federal court, alleging that his plea was involuntary, that the
plea agreement was violated, and that he received ineffective
assistance of counsel at the pleading stage. After briefing
was completed, the district court denied the motion as time
barred. Relying on dictum in Dolan v. United States,
560 U.S. 605 (2010), the district court concluded that the
November 16, 2009 sentencing was a final judgment that
triggered the one-year statute of limitations. The court
reasoned that because Gilbert did not file his § 2255 motion
until almost three years after the imposition of judgment, his
petition was untimely. However, recognizing the lack of
precedent on this issue, the district court granted a certificate
of appealability on whether Gilbert’s petition is time barred.
We have jurisdiction under 28 U.S.C. §§ 1291, 2253(a) and
2255(d), and review the district court’s dismissal of Gilbert’s
habeas petition on timeliness grounds de novo. See United
States v. LaFramboise, 427 F.3d 680, 683 (9th Cir. 2005).
For the reasons that follow, we affirm.
Under 28 U.S.C. § 2255(f), there is a one-year period of
limitation to file a collateral attack on a federal conviction
that runs from the latest of four events, including the date on
UNITED STATES V. GILBERT 5
which the judgment of conviction becomes final. If the
movant pursues a direct appeal to the Court of Appeals but
does not file a petition for writ of certiorari with the United
States Supreme Court, the conviction becomes final when the
time for filing such a petition lapses. See Clay v. United
States, 537 U.S. 522, 532 (2003); United States v. Garcia,
210 F.3d 1058, 1060 (9th Cir. 2000). However, if the movant
does not pursue a direct appeal to the Court of Appeals, the
conviction becomes final when the time for filing a direct
appeal expires. See United States v. Schwartz, 274 F.3d
1220, 1223 & n.1 (9th Cir. 2001) (citing Fed. R. App. P. 4).
The Supreme Court has not directly addressed whether a
judgment that imposes a period of incarceration and an
unspecified amount of restitution is a “final” judgment for
appellate purposes. See Dolan, 560 U.S. at 618 (“We leave
all such matters for another day.” ) However, the Court noted
that “strong arguments favor the appealability of the initial
judgment irrespective of the delay in determining the
restitution amount.” Id. at 617. The Court pointed to the
language of several statutes, including 18 U.S.C. § 3582(b),
which states that a “sentence to imprisonment” is a “final
judgment.” Id. at 618. The Court mentioned its concern with
requiring incarcerated defendants to delay their appeals until
the restitution amount is set. Id. This dictum in Dolan is in
line with previous Supreme Court precedent holding that a
judgment that imposes a sentence is a final judgment. See
Corey v. United States, 375 U.S. 169, 174, 175 (1963) (a
judgment that imposes “discipline” is “freighted with
sufficiently substantial indicia of finality to support an
appeal”) (internal citations and quotation marks omitted);
Berman v. United States, 302 U.S. 211, 212 (1937) (“Final
judgment in a criminal case means sentence. The sentence is
the judgment.”) (citations omitted).
6 UNITED STATES V. GILBERT
Corey and Berman support our conclusion that a
judgment that includes a sentence but leaves the amount of
restitution open is sufficiently final for appellate purposes.
Also, we afford any dictum of the Supreme Court due
deference, see United States v. Baird, 85 F.3d 450, 453 (9th
Cir. 1996), and agree that there is a serious policy concern
with requiring incarcerated defendants to delay their appeals
until the district court has finalized the amount of restitution.
Dolan, 560 U.S. at 618; see also United States v. Cheal,
389 F.3d 35, 51–52 (1st Cir. 2004).
We note that several of our sister circuits have held that
a judgment that imposes a sentence and an unspecified
amount of restitution is a sufficiently final judgment for
appellate purposes. See, e.g., Cheal, 389 F.3d at 51–52;
Gonzalez v. United States, 792 F.3d 232, 237 (2d Cir. 2015)
(per curiam); United States v. Muzio, 757 F.3d 1243, 1250
(11th Cir. 2014). We join our sister circuits in holding that a
sentence of incarceration coupled with an unspecified amount
of restitution is a sufficiently final judgment to support a
direct appeal. It follows that once the time for filing a direct
appeal of this type of judgment expires, the one-year
limitation period under § 2255(f) is triggered. Schwartz, 274
F.3d at 1223 & n.1.
Gilbert’s November 16, 2009 sentence, which imposed
restitution but left the exact amount to be determined, became
a final judgment for habeas purposes once the deadline for
filing a notice of appeal expired 14 days later. See Fed. R.
App. P. 4(b)(1)(A). The one-year statute of limitations to file
a § 2255 motion began to run with this expiration, and
Gilbert’s counsel was incorrect if he advised Gilbert to the
contrary. However, this case also presents a second question:
UNITED STATES V. GILBERT 7
whether the one-year limitations period restarts for § 2255
motions once a final order of restitution is entered.
The Second Circuit has answered this question in the
affirmative. In Gonzalez v. United States, Efrain Gonzalez
was sentenced to a period of incarceration and an unspecified
amount of restitution on May 25, 2010. 792 F.3d at 233.
Gonzalez appealed the initial judgment and amended his
appeal once the restitution order was finalized. Id. The
Second Circuit affirmed the sentence but vacated the
restitution order on July 22, 2011, and Gonzalez did not seek
a writ of certiorari. Id. at 233–34. On remand, the district
court revised the amount of restitution, and Gonzalez filed a
§ 2255 motion on September 4, 2013, alleging that the
government had intimidated a defense witness. Id. at 234.
The district court dismissed the motion as time barred under
28 U.S.C. § 2255(f), and Gonzalez appealed. Id.
The Second Circuit held that the motion was timely
because the limitations period began to run when the time for
Gonzalez to file a direct appeal of the revised restitution order
expired. Id. The court cited the Supreme Court’s decision in
Corey, which held that a defendant committed to custody but
awaiting a final sentence could appeal the initial imposition
and also appeal the final sentence. Id. at 237 & n.25 (citing
Corey, 375 U.S. at 174–75). The Second Circuit further
noted that the Eleventh Circuit relied on Corey to hold “that
a judgment imposing a sentence without setting restitution is
sufficiently final as to be immediately appealable, but an
appeal also could be taken following entry of the subsequent
restitution order.” Id. (citing Muzio, 757 F.3d at 1249–50).
Extrapolating from Corey and Muzio, the Second Circuit held
that the same rule should apply to § 2255 motions: that
defendants should be permitted to file a habeas petition after
8 UNITED STATES V. GILBERT
the initial judgment, but that they should also be “free to
await the conclusion of the criminal proceedings”—i.e., until
after the district court amends the order of restitution—
before filing a § 2255 motion. Id.
The procedural posture of this case is different. In
Gonzalez, the Second Circuit characterized Gonzalez’s initial
judgment as vacated on direct appeal and determined that the
substantively new judgment on remand restarted the one-year
limitations period. 792 F.3d at 235–36. We have similarly
held that if an appellate court “either partially or wholly
reverse[s] a defendant’s conviction or sentence, or both, and
expressly remand[s] to the district court . . . . the judgment
does not become final, and the statute of limitations [under
§ 2255] does not begin to run, until the district court has
entered an amended judgment and the time for appealing that
judgment has passed.” United States v. Colvin, 204 F.3d
1221, 1225 (9th Cir. 2000). But in Gilbert’s case there was
never a direct appeal, and no part of his sentence was vacated.
The judgment was merely amended to include the specific
restitution amount, and the procedural posture is therefore
distinguishable from both Gonzalez and Colvin.
Also, the Second Circuit has left open the possibility that
defendants can file § 2255 motions to challenge restitution,
see Gonzalez, 792 F.3d at 237 (quoting Kaminski v. United
States, 339 F.3d 84, 87 (2d Cir. 2003)), whereas we have
squarely held that restitution cannot be challenged through a
§ 2255 motion. See United States v. Thiele, 314 F.3d 399,
401 (9th Cir. 2002); United States v. Kramer, 195 F.3d 1129,
1130 (9th Cir. 1999). Gilbert argues that these precedents do
not apply because he is seeking relief from incarceration, not
challenging his restitution. However, restarting the clock for
§ 2255 motions from the amended order of restitution would
UNITED STATES V. GILBERT 9
still be inconsistent with our precedents in Thiele and
Kramer. Because Gilbert is not permitted to challenge his
restitution with a § 2255 motion, it would make no sense to
let him restart the statute of limitations under § 2255 from an
amended judgment that addressed only the specific amount of
restitution. We hold that when a judgment imposes a
sentence but leaves the amount of restitution to be
determined, the one-year statute of limitations to file a § 2255
motion does not restart when the specific amount of
restitution is later entered.1
Gilbert argues for the first time on appeal that if his
§ 2255 motion is time barred, he is entitled to equitable
1
In Dolan, the Supreme Court stated in a dictum that an order of
restitution, like a sentence of imprisonment, is a final judgment. 560 U.S.
at 618 (citing 18 U.S.C. § 3664(o)). The Court further said that “[t]hus,
it is not surprising to find instances where a defendant has appealed from
the entry of a judgment containing an initial sentence that includes a term
of imprisonment; that same defendant has subsequently appealed from a
later order setting forth the final amount of restitution; and the Court of
Appeals has consolidated the two appeals and decided them together.” Id.
(citations omitted).
However, this passage of Dolan concerned direct appeals, not
collateral attacks under 28 U.S.C. § 2255. Because Dolan is
distinguishable in that sense, we cannot say that our prior precedents in
Thiele and Kramer are clearly irreconcilable with its reasoning. See
Miller v. Gammie, 335 F.3d 889, 893 (9th Cir. 2003) (“where the
reasoning or theory of our prior circuit authority is clearly irreconcilable
with the reasoning or theory of intervening higher authority, a three-judge
panel should consider itself bound by the later and controlling authority,
and should reject the prior circuit opinion as having been effectively
overruled.”) We therefore adhere to circuit precedent, and on the basis of
that precedent it would be unwarranted to allow Gilbert to restart the
§ 2255 clock from the amended restitution order, when our extant
precedent says that he cannot use § 2255 to challenge a restitution order.
10 UNITED STATES V. GILBERT
tolling. As a general rule, “a federal appellate court does not
consider an issue not passed upon below.” Dodd v. Hood
River Cty., 59 F.3d 852, 863 (9th Cir. 1995) (citation and
quotation marks omitted). We conclude that Gilbert waived
this claim. Even if it were not waived, we conclude that it
has no merit. To be entitled to equitable tolling, a habeas
petitioner bears the burden of showing “(1) that he has been
pursuing his rights diligently, and (2) that some extraordinary
circumstance stood in his way.” Holland v. Florida, 560 U.S.
631, 649 (2010) (citation and quotation marks omitted).
Equitable tolling is available “only when extraordinary
circumstances beyond a prisoner’s control make it impossible
to file a petition on time and the extraordinary circumstances
were the cause of [the prisoner’s] untimeliness.” Bills v.
Clark, 628 F.3d 1092, 1097 (9th Cir. 2010) (emphasis in the
original) (citation and quotation marks omitted). This is a
very high threshold. Id.
Gilbert alleges that his trial counsel provided incorrect
legal advice regarding the deadline to file a § 2255 motion
and that this is an extraordinary circumstance that warrants
equitable tolling. Binding case law holds otherwise. See,
e.g., Lawrence v. Florida, 549 U.S. 327, 336–37 (2007)
(citation omitted) (“Attorney miscalculation is simply not
sufficient to warrant equitable tolling, particularly in the
postconviction context where prisoners have no constitutional
right to counsel.”); Frye v. Hickman, 273 F.3d 1144, 1146
(9th Cir. 2001) (equitable tolling was not warranted when
defendant’s attorney miscalculated the deadline to file a
habeas petition). Assuming that Gilbert’s counsel did give
erroneous advice on the filing deadline, this is not the kind of
extraordinary circumstance that compels equitable tolling.
UNITED STATES V. GILBERT 11
We conclude that Gilbert’s § 2255 motion is time barred
and that he is not entitled to equitable tolling. The district
court is therefore AFFIRMED.