14

‐ 1994

‐ pr

Gonzalez v. United States



## In the



# United States Court of Appeals

**for the Second Circuit**

A UGUST T ERM 2014

No. 14

‐ 1994

‐ pr

E FRAIN G ONZALEZ

, J R

.,

Petitioner

‐ Appellant

,

v.

U NITED S TATES OF A MERICA

, Respondent

‐ Appellee

.

On Appeal from the United States District Court

for the Southern District of New York

SUBMITTED : J UNE 22, 2015

D ECIDED : J ULY 2, 2015

Before: C ABRANES

, P OOLER

, and C HIN

, Circuit Judges

.

This appeal presents an unsettled question regarding

restitution orders and the one

‐ year limitations period for a 28 U.S.C.

§ 2255 motion: Does the limitations period begin to run with an2 order affirming a conviction and sentence but remanding for

recalculation of restitution, or does it begin to run only after the

district court enters a revised restitution order on remand?

We hold that the limitations period begins to run only when

the revised restitution order becomes final. Accordingly, the May

19, 2014 order of the United States District Court for the Southern

District of New York (William H. Pauley III, Judge ) is VACATED

and the cause is REMANDED for further proceedings consistent

with this opinion

.

Efrain Gonzalez, Jr., pro se

, Care of Federal

Correctional Institution, Fort Dix, NJ,

Petitioner

‐ Appellant.

Michael A. Levy, Assistant United States

Attorney, for Preet Bharara, United States

Attorney for the Southern District of New

York, New York, NY, Respondent

‐ Appellee.

P ER C URIAM :

This appeal presents an unsettled question regarding

restitution orders and the one

‐ year limitations period for a 28 U.S.C.

§ 2255 motion: Does the limitations period begin to run with an

order affirming a conviction and sentence but remanding for3 recalculation of restitution, or does it begin to run only after the

district court enters a revised restitution order on remand?

We hold that the limitations period begins to run only when

the revised restitution order becomes final. Accordingly, the May

19, 2014 order of the United States District Court for the Southern

District of New York (William H. Pauley III, Judge ) is VACATED

and the cause is REMANDED for further proceedings consistent

with this opinion

.

BACKGROUND

Pro se appellant Efrain Gonzalez, Jr. is a former New York

State senator who represented a district in the Bronx. He also served

on the board of the West Bronx Neighborhood Association

(“WBNA”), a Bronx charity. Gonzalez was accused of using WBNA

funds for his personal use, including vacations, rent, jewelry, and

baseball tickets. On May 8, 2009, Gonzalez pleaded guilty to two

counts of fraud and two conspiracy counts. On May 25, 2010, the

District Court sentenced him principally to seven years’

imprisonment and ordered restitution, with the exact amount to be

determined at a later date by the District Court. Gonzalez filed a

timely notice of appeal on June 2, 2010. After receiving further

submissions from the parties on the restitution question, the District

Court, on August 23, 2010, entered a separate order directing

Gonzalez to pay $122,775 in restitution to WBNA’s donors.4 On August 27, 2010, Gonzalez amended his notice of appeal to

challenge the restitution order entered four days earlier. We

affirmed the conviction and sentence, but vacated the restitution

order. 1 We determined that the restitution amount of $122,775

overstated the losses to WBNA’s donors because the donors had

received some value for their donations, and we remanded the cause

so that the District Court could determine the true extent of the

victims’ losses and order restitution in that revised amount. 2 Our

decision was issued on July 22, 2011 (the “July 2011 Decision”).

Gonzalez did not seek a writ of certiorari.

On remand, the parties agreed to a 25 percent discount to

account for the benefits WBNA’s donors received. On March 6,

2013, the District Court entered a revised order requiring Gonzalez

to pay $92,081.25 in restitution (the “March 2013 Order”). He did

not appeal that order. Instead, on September 4, 2013, Gonzalez filed

a § 2255 motion asserting that the Government had threatened a

witness to prevent him from testifying for Gonzalez. The District

Court dismissed the § 2255 motion as time barred under the one

‐

year limitations period set out in the Antiterrorism and Effective

Death Penalty Act of 1996 (“AEDPA”), codified at 28 U.S.C.

§ 2255(f). Specifically, the District Court rejected Gonzalez’s

argument that the AEDPA limitations period began after the March

2013 Order—when the District Court’s revised restitution order was

1 United States v. Gonzalez

, 647 F.3d 41, 43

‐ 44 (2d Cir. 2011).

2 Id. at 65

‐ 67.5 entered—and instead held that it started to run on October 20, 2011,

90 days 3 after the July 2011 Decision, when this Court affirmed his

conviction.

This appeal followed. We granted a certificate of

appealability on the issue of “whether the district court erred in

determining that [Gonzalez’s] 28 U.S.C. § 2255 motion was untimely

where it was filed within one year of the revised restitution order

entered in March 2013.”

DISCUSSION

We consider de novo questions arising under AEDPA’s

requirement that a § 2255 motion be filed within one year of “the

date on which the judgment of conviction becomes final.” 4

If the AEDPA clock started to run when this Court affirmed

the conviction and the non

‐ restitution aspects of the sentence in the

July 2011 Decision, then Gonzalez’s § 2255 motion of September 4,

2013 would be time barred. Where a defendant does not seek

Supreme Court review, a conviction becomes final when the time to

seek such review expires, 90 days from the order affirming the

3 See Clay v. United States

, 537 U.S. 522, 525 (2003) (“[A] judgment of

conviction becomes final when the time expires for filing a petition for

certiorari contesting the appellate court ʹ s affirmation of the conviction.”);

Sup. Ct. R. 13(1) (establishing ninety

‐ day period for filing petition for writ

of certiorari).

4 28 U.S.C. § 2255(f)(1); see Scanio v. United States

, 37 F.3d 858, 859

‐

860 (2d Cir. 1994).6 conviction. 5 Here, the time to seek a writ of certiorari expired on

October 20, 2011, 90 days after the July 2011 Decision. If Gonzalez’s

conviction became final then—as the District Court held—the

AEDPA limitations period ended on October 22, 2012 and his § 2255

motion filed in September 2013 was untimely.

Gonzalez urges us to conclude that the AEDPA limitations

period began to run only with the March 2013 Order. More

precisely, under this position, the limitations period began to run on

March 20, 2013, when the time for Gonzalez to file a direct appeal of

the revised restitution order expired. 6 We agree for three reasons.

I. Amended Judgments

First, where a criminal judgment is vacated and remanded for

substantive proceedings, the amended judgment is attackable in

habeas proceedings. This posture often arises in the context of

successive habeas petitions or motions. 7 In Magwood v. Patterson the

5 Clay

, 537 U.S. at 524

‐ 25.

6 See Moshier v. United States, 402 F.3d 116, 118 (2d Cir. 2005) (“[A]n

unappealed federal criminal judgment becomes final when the time for

filing a direct appeal expires.”); Fed. R. App. P. 4(b)(1) (absent cross

‐ appeal, criminal defendant has 14 days to appeal from “the entry of either

the judgment or the order being appealed.”).

7 Once a 28 U.S.C. § 2254 petition or § 2255 motion is decided on the

merits, AEDPA places restrictions on the filing of additional petitions or

motions attacking the same conviction, i.e.

, second or successive petitions

or motions. That is, unless a habeas petitioner or movant relies upon a

new rule of constitutional law made retroactive by the Supreme Court or7 District Court conditionally granted a 28 U.S.C. § 2254 petition and

ordered that the petitioner be released or re

‐ sentenced by the state

authorities. 8 After re

‐ sentencing by the state trial court, the

petitioner filed a second § 2254 petition challenging the new

sentence. 9 The Supreme Court held that the second petition was not

a second or “successive” petition within the meaning of AEDPA

because the petitioner was challenging a new judgment. 10 We have

applied Magwood to hold that a § 2255 motion challenging an

amended judgment of conviction of a federal trial court—entered

after a previous § 2255 motion was granted and the prior judgment

of conviction was vacated—did not constitute a successive § 2255

motion because the second § 2255 motion challenged a new

judgment. 11

newly discovered evidence of actual innocence, “[n]o circuit or district

judge shall be required to entertain an application for a writ of habeas

corpus to inquire into the detention of a person pursuant to a judgment of

a court of the United States if it appears that the legality of such detention

has been determined by a judge or court of the United States on a prior

application for a writ of habeas corpus.” 28 U.S.C. § 2244(a), (b)(2); see also

id. § 2255(h) (listing exceptions to successive restrictions).

8 561 U.S. 320 (2010).

9 Id. at 323.

10 Id. at 323

‐ 24.

11 See Johnson v. United States

, 623 F.3d 41, 44

‐ 46 (2d Cir. 2010);

Marmolejos v. United States

,

__ F.3d

__, 2015 WL 3499660, at *4 (2d Cir. June

4, 2015) (“ Magwood and Johnson

. . . stand for the principle that when a

judgment is entered on account of new substantive proceedings involving8 Other circuits have applied this rule in the context of AEDPA

time limitations. In United States v. Colvin

, the Ninth Circuit vacated

one count of a conviction on direct appeal and remanded with

instructions that the District Court strike that count and reduce the

special assessment. 12 The defendant’s § 2255 motion was filed

within one year of that revised judgment of the federal trial court,

but more than two years after the Ninth Circuit’s order affirming in

part and vacating in part the original judgment. The Ninth Circuit

held that the AEDPA clock began to run with the revised judgment,

and the § 2255 motion was therefore timely. The Court of Appeals

reasoned that criminal proceedings in a district court are not

complete until the availability of a direct appeal is exhausted, and, in

the case before them, a direct appeal could have been taken from the

revised judgment. 13 Similarly, in United States v. Dodson

, the Fourth

Circuit held that the AEDPA clock began to run after the District

Court on remand held a hearing and re

‐ sentenced the defendant. 14

The Dodson panel, however, noted that a remand for merely

reconsideration of either the defendant’s guilt or his appropriate

punishment, it is a new judgment for purposes of AEDPA.”); see also

Urinyi v. United States

, 607 F.3d 318, 321 (2d Cir. 2010) (holding, pre

‐ Magwood

, that where a first § 2255 motion was granted so movant could

file a direct appeal, the second § 2255 motion was not a successive motion

under AEDPA).

12 204 F.3d 1221, 1222 (9th Cir. 2000).

13 Id. at 1224

‐ 26.

14 291 F.3d 268, 274

‐ 76 (4th Cir. 2002).9 ministerial purposes would not have rendered the original judgment

of conviction non

‐ final.

We applied a similar rule in Burwell v. United States

. 15 There,

we held that where one count of conviction was vacated but the life

sentence remained intact, and the District Court was faced on

remand with only the ministerial task of entering a judgment

without the vacated count, for purposes of the AEDPA limitations

period the conviction had become final with the original judgment. 16

Importantly, we distinguished between cases where a “remand was

strictly ministerial in that it required a routine, nondiscretionary act

by the district court that could not have been appealed on any valid

ground,” and cases where “our mandate left the district court the

authority on remand to entertain the new arguments [defendant]

advanced.” 17

The rule drawn from cases such as Dodson and Burwell is this:

Where a conviction is vacated and the cause is remanded for

substantive proceedings, the new judgment is subject to renewed

collateral attack under AEDPA. In contrast, where a trial court has

only the ministerial task of entering a new judgment, the original

judgment is the relevant judgment for habeas purposes.

15 467 F.3d 160 (2d Cir. 2006).

16 Id. at 165

‐ 67.

17 Id. at 161.10 Applying that rule here, the finality of the March 2013

Order—not that of the July 2011 Decision—started the AEDPA

clock. Restitution is a serious component of criminal punishment, 18

and calculating the restitution amount is hardly ministerial.

Allowing a judgment to be final for AEDPA purposes—while the

restitution amount remains wholly uncertain—runs counter to the

explicit differentiation between substantive and ministerial

proceedings articulated in these cases. In the instant case, the

District Court was required to re

‐ calculate the restitution order—

rather than merely enter a new judgment—following substantive

communication between the parties and between the parties and the

Court. 19 Indeed, the District Court eventually entered the revised

restitution order—which cut the restitution amount by over

$30,000—only after the parties had agreed to a 25 percent discount.

II. Finality

Second, a review of the law of finality in the context of

restitution orders compels the conclusion that Gonzalez’s conviction

was not final for AEDPA purposes until the March 2013 Order.

“Finality is variously defined; like many legal terms, its precise

meaning depends on context.” 20 For purposes of a direct criminal

18 See Pasquantino v. United States, 544 U.S. 349, 365 (2005) (“The

purpose of awarding restitution

. . . is

. . . to mete out appropriate

criminal punishment for

. . . conduct.”).

19 Gonzalez

, 647 F.3d at 66

‐ 67.

20 Clay

, 537 U.S. at 527.11 appeal, “a federal judgment becomes final for appellate review and

claim preclusion purposes when the district court disassociates itself

from the case, leaving nothing to be done at the court of first

instance save execution of the judgment.” 21

A criminal judgment containing a restitution order is a final

judgment for the purposes of a direct appeal. 22 It is less clear

whether a criminal judgment that imposes restitution but leaves the

amount to be determined constitutes a final judgment, even for

purposes of direct appeal. The Supreme Court, in Dolan v. United

States

, expressly declined to decide the question. 23 However, the

Court noted that it “makes sense” to allow immediate appeal of a

judgment of conviction that does not impose restitution; the

defendant would be free to appeal the restitution order separately

and the two appeals (if they are concurrent) can be, and often are,

consolidated. 24

21 Id. ; see also Deal v. United States

, 508 U.S. 129, 132 (1993) (“A

judgment of conviction includes both the adjudication of guilt and the

sentence.”).

22 See, e.g., United States v. Certified Envtl. Serv., Inc.

, 753 F.3d 72, 99

‐

102 (2d Cir. 2014) (reviewing restitution order as part of appeal from a

criminal judgment); see also 18 U.S.C. § 3664(o) (“A sentence that imposes

an order of restitution is a final judgment.”).

23 560 U.S. 605, 618 (2010).

24 Id. at 617

‐ 18.12 The Supreme Court’s decision in Corey v. United States s upports

the conclusion that while the initial judgment is sufficiently final for

appeal, an appeal could also be pursued following entry of the

restitution order. 25 Indeed, the Eleventh Circuit, in United States v.

Muzio

, 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. 26

In essence, Corey and Muzio allow defendants two

opportunities to appeal: from an initial sentence, even if some

aspects of the sentence are not final; and from the final order

disposing of the case in the district court. The same rule should

apply here. Gonzalez could have filed a § 2255 motion after the July

2011 Decision affirming his conviction and the non

‐ restitution

aspects of the sentence. However, he was also free to await the

conclusion of the criminal proceedings—after the March 2013

Order—before deciding whether to file a § 2255 motion and

deciding what claims to include in the motion.

25 3 75 U.S. 169, 174

‐ 75 (1963) (holding that where district court

committed defendant to custody but held off on imposing final sentence,

defendant could have appealed from initial imposition, but the appeal

following final order imposing full sentence was also timely).

26 757 F.3d 1243, 1249

‐ 50 (11th Cir. 2014).13 III. The Nature of Section 2255 Proceedings

Third, the nature of § 2255 proceedings further supports the

conclusion that Gonzalez’s criminal judgment was not final for

§ 2255 purposes until the District Court revised the restitution

amount. Despite the Government’s argument to the contrary,

Gonzalez could have challenged the revised restitution order in a

§ 2255 motion. In Kaminski v. United States

, we held that a § 2255

motion may not attack the non

‐ custodial aspects of a sentence. 27

However, Kaminski notes that “we have not as yet foreclosed the

possibility that a restitution order might entail a sufficiently severe

restraint on liberty, not shared by the public at large, as to amount to

a form of custody.” 28 Kaminski limits any § 2255 challenge to

restitution orders to circumstances where the restitution order

amounts to a severe restraint on liberty. While that will likely be a

rare situation, it cannot be known whether restitution will constrain

a defendant’s liberty until the restitution amount and terms are set.

Accordingly, where restitution is unsettled at the time of the Court

of Appeals decision to remand, a defendant may wait until a final

restitution order is entered by the District Court (including the

conclusion of any direct appeal of the revised amount) before filing a

§ 2255 motion.

It bears underscoring that our ruling that the AEDPA

limitations period does not start until after the completion of

27 339 F.3d 84, 87

‐ 89 (2d Cir. 2003).

28 Id. at 87.14 substantive proceedings on remand does not preclude a movant

from filing a § 2255 motion before a final restitution order is entered.

Although we discourage “piecemeal” § 2255 litigation, and have

expressed a preference for the submission of a single § 2255

motion, 29 the rule against considering a § 2255 motion while a direct

appeal is pending (an analogous situation) is not a jurisdictional bar.

“Any concern over such a practice is one of judicial economy and

the concern that the results on direct appeal may make the district

court’s efforts on the § 2255 motion a nullity.” 30 Further, the fact that

AEDPA discourages the filing of more than one § 2255 motion

through the restrictions placed on second or successive motions, 28

U.S.C. § 2255(h), supports the conclusion that all challenges to a

conviction and sentence can also be brought in a single § 2255

motion—after the final restitution order is entered.

If this were not the rule, situations could arise where

defendants could not collaterally attack an order of restitution that

severely restrained their liberty. For example, if Gonzalez had filed a

§ 2255 motion attacking only his conviction and sentence of

imprisonment, and then two years later, the District Court imposed

restitution that amounted to a “severe restraint on liberty” such that

it could be challenged in a § 2255 motion, see Kaminski

, 339 F.3d at

29 Ching v. United States

, 298 F.3d 174, 179 (2d Cir. 2002) (“Courts

are not obliged to entertain needless or piecemeal litigation; nor should

they adjudicate a motion or petition whose purpose is to vex, harass or

delay.”).

30 United States v. Outen

, 286 F.3d 622, 632 (2d Cir. 2002).15 87, he may have had no recourse beyond direct appeal (which may

not have been sufficient if the restitution order was tainted by

ineffective assistance, Government misconduct, or other error that

cannot be challenged on direct appeal). 31

IV. Remaining Arguments

The Government argues that starting the AEDPA clock only

when the revised restitution order becomes final undermines the

finality of convictions and will cause confusion among litigants.

While the concerns are noted, they are not, in our view, supported

by the reality of the process. We have identified only 22 cases (other

31 Theoretically, the existence of the new restitution order may have

saved any second § 2255 motion attacking that order from being deemed

“successive.” See Johnson

, 623 F.3d at 44

‐ 46 (second § 2255 motion

challenging revised judgment was not successive). Gonzalez also might

have had the option of filing a 28 U.S.C. § 2241 petition if his collateral

attack on the restitution order dealt with the execution of the order, rather

than its imposition. Adams v. United States

, 372 F.3d 132, 135 (2d Cir. 2004)

(“Section 2241

. . . is the proper means to challenge the execution of a

sentence.”). Further, dicta from Kaminski suggests that he could have used

a coram nobis petition, under the terms of the All Writs Act, 28 U.S.C. §

1651(a), as a collateral attack on the revised restitution order. 339 F.3d at

89

‐ 91. These options—coupled with a rule that even though a potentially

significant part of a defendant’s punishment ( i.e

., the restitution amount)

is still unsettled, the conviction is final and the habeas clock has begun

ticking—might be confusing to a pro se litigant. The bright

‐ line rule we

now establish—that the litigant may wait until the substantive

proceedings are completed in the district court before collaterally

attacking his conviction—better serves pro se litigants while adhering to

AEDPA’s temporal restrictions on § 2255 motions.16 than the instant case) dating from 2005 until the present in which

this Court has vacated a restitution order but left the conviction

wholly or largely undisturbed. 32 We decided more than 5,000

criminal appeals over roughly the same period. 33 Thus, only in a

very small number of cases will the timing of a § 2255 motion

possibly be affected by a vacated restitution order.

32 See United States v. Lundquist

, 731 F.3d 124 (2d Cir. 2013) vacated

134 S. Ct. 1940 (2014) (mem.); United States v. Vilar

, 729 F.3d 62 (2d Cir.

2013); United States v. Desnoyers

, 708 F.3d 378 (2d Cir. 2013); United States v.

Lacey

, 699 F.3d 710 (2d Cir. 2012); United States v. Archer

, 671 F.3d 149 (2d

Cir. 2011); United States v. Bengis

, 631 F.3d 33 (2d Cir. 2011); United States v.

Leonard

, 529 F.3d 83 (2d Cir. 2008); United States v. Klein

, 476 F.3d 111 (2d

Cir. 2007); United States v. Reifler

, 446 F.3d 65 (2d Cir. 2006); see also United

States v. Monfort

, __F. App’x

__, 2015 WL 1294926 (2d Cir. March 24, 2015);

United States v. Clark

, 593 F. App’x 53 (2d Cir. 2014); United States v.

Lochard

, 555 F. App’x 94 (2d Cir. 2014); United States v. Wee

, 513 F. App’x

28 (2d Cir. 2013); United States v. Schwamborn

, 467 F. App’x 35 (2d Cir.

2012); United States v. Archer

, 432 F. App’x 43 (2d Cir. 2011); United States v.

Drayer

, 364 F. App’x 716 (2d Cir. 2010); United States v. Mammedov

, 304 F.

App’x 922 (2d Cir. 2008); United States v. Rammelkamp

, 270 F. App’x 35 (2d

Cir. 2008); United States v. Rodriguez

, 260 F. App’x 414 (2d Cir. 2008);

United States v. McIntyre

, 207 F. App’x 71 (2d Cir. 2006); United States v.

Lisa

, 152 F. App’x 85 (2d Cir. 2005); United States v. Fleischer

, 120 F. App’x

865 (2d Cir. 2005).

33 This number is taken from the Administrative Office of the U.S.

Courts, which issues yearly reports on judicial caseloads. The reports are

available on the U.S. Courts web site at

http://www.uscourts.gov/statistics

‐ reports/analysis

‐ reports/federal

‐ court

‐

management

‐ statistics.17 The Government draws to our attention a single example of

post

‐ vacatur restitution proceedings dragging on for a number of

years. 34 However, the Mandatory Victims Restitution Act (the

statute regulating the imposition of restitution) provides that

restitution proceedings should take place within 90 days of the

judgment. 35 The vast majority of the time, then, restitution will have

been decided before a direct appeal is concluded. It should thus be

the rare circumstance where the restitution proceedings outlive the

appeal.

CONCLUSION

To summarize: We hold that (1) a conviction is not final for

AEDPA purposes as long as substantive restitution proceedings are

ongoing; (2) where this Court vacates a restitution order and

remands for further proceedings to recalculate the restitution

amount, the AEDPA clock does not start to run until the restitution

order becomes final; and (3) a litigant may wait—but is not required

to wait—until the substantive proceedings are completed before

collaterally attacking his conviction.

34 Appellee’s Br. at 20 (citing United States v. Catoggio

, 698 F.3d 64

(2d Cir. 2012), where restitution was initially imposed in 2001, vacated,

and the appeal from the revised restitution order was not decided until

2012).

35 18 U.S.C. § 3664(d)(5).18 For the reasons set forth above, we VACATE the District

Court’s May 19, 2014, order and REMAND for further proceedings

consistent with this opinion.