FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

J. TYLER REVES,

Defendant-Appellant.

No. 13-15845

D.C. Nos.

2:10-cv-01330-

MCE-CMK

2:02-cr-00468-

MCE-CMK-3

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

LYNN G. BEDFORD,

Defendant-Appellant.

No. 13-15847

D.C. Nos.

2:10-cv-01402-

MCE-CMK

2:02-cr-00468-

MCE-CMK-2

OPINION

Appeal from the United States District Court

for the Eastern District of California

Morrison C. England, Jr., Chief District Judge, Presiding

Submitted November 20, 2014*

San Francisco, California

* The panel unanimously concludes this case is suitable for decision

without oral argument. See Fed. R. App. P. 34(a)(2).
2 UNITED STATES V. REVES

Filed December 15, 2014

Before: Ferdinand F. Fernandez and Sandra S. Ikuta,

Circuit Judges, and William H. Albritton III, Senior

District Judge.**

Opinion by Judge Albritton

SUMMARY***

Habeas Corpus

The panel affirmed in part, and reversed and remanded in

part, in a consolidated appeal arising from the district court’s

judgments denying as untimely J. Tyler Reves’s and Lynn G.

Bedford’s motions to vacate their sentences under 28 U.S.C.

§ 2255.

The panel held that the district court did not have

jurisdiction to consider Bedford’s § 2255 motion because

Bedford, whose sentence of probation expired the day before

his motion was filed, was not “in custody” at the time he filed

his motion, as required by § 2255(a). The panel held that the

Federal Rules of Civil Procedure did not operate to extend

Bedford’s sentence, which ended on a Sunday, by one more

** The Honorable William H. Albritton III, Senior District Judge for the

U.S. District Court for the Middle District of Alabama, sitting by

designation.

 

*** 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. REVES 3

day. The panel explained that the jurisdictional requirement

that a § 2255 motion is only available to a prisoner in custody

is a condition that either exists or does not exist, rather than

a statute of limitations or other deadline for filing, as

contemplated by the Federal Rules. The panel therefore

reversed the district court’s denial of Bedford’s motion as

untimely, and remanded with directions to dismiss the motion

for lack of jurisdiction. 

The panel held that the district court was correct that

Reves’s motion was untimely and that he does not qualify for

the actual innocence or equitable tolling exceptions. The

panel wrote that judicial opinions and exonerations of others

do not affect the factual or legal basis for Reves’s conviction

pursuant to his plea agreement. The panel also found that

Reves expressly waived his right to collaterally attack his

conviction or sentence through a § 2255 motion in his plea

agreement and during his change of plea colloquy; and

concluded that the waiver is enforceable.

COUNSEL

J. Tyler Reves, Pro Se, Modesto, California, for DefendantAppellant J. Tyler Reves; Daniel Malakauskas, Stockton,

California, for Defendant-Appellant Lynn G. Bedford.

Benjamin B. Wagner, United States Attorney, Camil A.

Skipper, Appellate Chief, and Sherry D. Haus, Assistant

United States Attorney, United States Attorney’s Office,

Sacramento, California, for Plaintiff-Appellee.
4 UNITED STATES V. REVES

OPINION

ALBRITTON, Senior District Judge:

This is a consolidated appeal in which Appellants J. Tyler

Reves and Lynn G. Bedford appeal the District Court’s denial

of their motions to vacate their sentences under 28 U.S.C.

§ 2255.

On appeal as to Bedford, the Government argues, inter

alia, that the district court did not have jurisdiction over

Bedford’s motion because it was filed the day after his

sentence expired, meaning he was no longer “in custody” as

is required to avail oneself of relief under § 2255. Bedford

responds that because his sentence ended on a Sunday, he

was still able to properly file his motion the following day, a

Monday. The applicability of the Federal Rules’ extension of

time provisions to the “in custody” requirement is an issue of

first impression in the Ninth Circuit.

We have appellate jurisdiction under 28 U.S.C. §§ 1291

and 2255. We affirm in part, and reverse and remand in part.

BACKGROUND

The underlying convictions in this case are the result of an

FBI investigation into an allegedly corrupt scheme involving

Appellants and three other defendants. At the relevant time,

Bedford was on the San Joaquin CountyBoard of Supervisors

and Reves was his legislative aide. The other related

defendants were County Prosecutor Allen Sawyer

(“Sawyer”), former CountySheriff T. Baxter Dunn (“Dunn”),

and lobbyist Monte D. McFall (“McFall”). These latter three

defendants formed multiple entities and formed a business
UNITED STATES V. REVES 5

relationship with Sunlaw Energy Corporation. The criminal

investigation stemmed from allegations that each of the five

defendants played a role in ensuring that Sunlaw received a

bid to construct a plant in the Port of Stockton instead of

Sunlaw’s competitor, the Calpine Corporation.

Sawyer and Dunn each pled guilty to one count of honest

services mail fraud and received six-month prison sentences. 

McFall went to trial and was convicted by a jury of nine

counts of attempted extortion and conspiracy to commit

extortion under the Hobbs Act, six counts of honest services

mail fraud, and two counts of attempted witness tampering.

1

He was convicted of seventeen out of the twenty total counts

charged in the indictment, as the jury acquitted him of three

counts of mail fraud. McFall was sentenced to 121 months in

prison. Bedford and Reves each pled guilty to one count of

making a false statement under 18 U.S.C. § 1001 and each

received sixty months of probation as a sentence.

On March 9, 2009, we reversed McFall’s convictions on

five counts, including all three counts of attempted extortion

and conspiracy to commit extortion related to the Port of

Stockton energy project, for insufficiency of the evidence. 

United States v. McFall, 558 F.3d 951, 953 (9th Cir. 2009). 

We reversed the convictions on these three counts because

“the evidence did not establish, nor did the indictment allege,

that McFall obtained or attempted to obtain any property or

intangible right from Calpine [Corporation]” as is required by

the definition of extortion under the Hobbs Act. Id. at 958. 

On resentencing in September 2009, McFall received a new

sentence of 78 months.

1 These included numerous counts of criminal activity not related to the

Port of Stockton project.
6 UNITED STATES V. REVES

More than a year after we reversed five of McFall’s

convictions, Reves filed his § 2255 motion to vacate his

sentence on May 27, 2010, and Bedford followed suit on June

7, 2010.

On June 24, 2010, in Skilling v. United States, 561 U.S.

358, 408–09 (2010), the Supreme Court narrowed the

definition of honest services mail fraud to include only

schemes involving bribery or kickbacks. In the wake of that

decision, we set aside and vacated Dunn and Sawyer’s

convictions because the conduct covered by the honest

services mail fraud statute no longer included the conduct to

which they both pled guilty.

In their § 2255 motions in the District Court and now on

appeal, Appellants argue that the McFall and Skilling

decisions, and the partial exoneration of McFall and total

exoneration of Sawyer and Dunn, mandate that their

convictions also be set aside. The Government opposed the

motions, and continues to oppose them on appeal, on the

basis that they are untimely and do not qualify for any of the

exceptions to the relevant statute of limitations. The district

court denied the motions on those grounds. Appellants timely

appealed.

STANDARD OF REVIEW

We review a district court’s denial of a § 2255 motion de

novo. United States v. Ratigan, 351 F.3d 957, 961 (9th Cir.

2003). The district court’s assumption of jurisdiction, the

validity of waiver of appellate rights, and equitable tolling

decisions are all likewise reviewed de novo. United States v.

Battles, 362 F.3d 1195, 1196 (9th Cir. 2004) (equitable

tolling); United States v. Bennett, 147 F.3d 912, 913 (9th Cir.
UNITED STATES V. REVES 7

1998) (jurisdictional issues); United States v. Buchanan,

59 F.3d 914, 918 (9th Cir. 1995) (waiver of appellate rights). 

The standard of review applicable to claims of actual

innocence “is not entirely settled in this circuit,” but because

Reves has failed to establish an actual innocence claim under

either clear error or de novo review, and because we find the

District Court had no jurisdiction over Bedford’s motion, we

need not decide which standard is appropriate in this case. 

Jones v. Taylor, 763 F.3d 1242, 1245 (9th Cir. 2014) (quoting

Stewart v. Cate, 757 F.3d 929, 938 (9th Cir. 2014)).

DISCUSSION

A. Bedford’s § 2255 Motion

The District Court did not have jurisdiction to consider

Bedford’s § 2255 motion. Although the District Court denied

both Appellants’ motions as untimely based on the one-year

statute of limitations in 28 U.S.C. § 2255(f)(4), lack of

jurisdiction is a matter which can be raised at any time,

Bennett, 147 F.3d at 914, and must be addressed before any

consideration of the merits. See Smith v. U.S. Customs &

Border Prot., 741 F.3d 1016, 1019 & n.1 (9th Cir. 2014) (“in

custody” issue is a threshold jurisdictional issue that must be

addressed first, even where not addressed by the district

court); Williamson v. Gregoire, 151 F.3d 1180, 1182 (9th Cir.

1998) (“Because the ‘in custody’ requirement is

jurisdictional, . . . it is the first question we must consider on

this appeal.”).

Motions to vacate a sentence under 28 U.S.C. § 2255 are

expressly available only to “a prisoner in custody.” Bedford

was not actually “in custody” at the time he filed his motion,

as required by § 2255(a). See Maleng v. Cook, 490 U.S. 488,
8 UNITED STATES V. REVES

490–91 (1989) (petitioner must be “in custody,” which

includes supervised release and probation, when motion is

filed). Bedford’s probation expired the day before his motion

was filed.

All parties agree and acknowledge that Bedford’s

sentence of probation ended on Sunday, June 6, 2010, and his

§ 2255 motion was filed on Monday, June 7, 2010. Bedford

argues this is not fatal to jurisdiction because time periods

that end on a Saturday or Sunday, as was the case here,

extend to the next working day under Fed. R. App. P. 26.2

However, the “in custody” requirement is not a given time

period in the same sense that a limitations period is. The

Federal Rules of Civil Procedure did not operate to extend

Bedford’s sentence by one more day. Section 2255 motions,

by the explicit terms of the statute, may be brought only by

persons “in custody.” Regardless of the day of the week, the

fact is that Bedford was no longer “in custody” at the end of

the exact day that his sentence expired. This jurisdictional

requirement that a § 2255 motion to vacate is only available

to a prisoner in custody is a condition that either exists or

does not exist, rather than a statute of limitations or other

deadline for filing, as contemplated by the Federal Rules.

2 Bedford cites the Federal Rules of Appellate Procedure to support his

argument, but in this situation the applicable provision is instead Fed. R.

Civ. P. 6(a)(1)(C), which extends periods ending on a Saturday, Sunday,

or legal holiday to the next day that is not a weekend or holiday. The

Federal Rules of Civil Procedure apply in § 2255 cases in district court to

the extent that they are not inconsistent with the § 2255 rules. See Rule

12 of the Rules Governing Section 2255 Proceedings. The legal analysis

and result are the same under either set of rules, because the Rules of

Appellate and Civil Procedure treat weekends and holidays the same way

in computing time periods. Compare Fed. R. Civ. P. 6(a)(1)(C), with Fed.

R. App. P. 26(a)(1)(C).
UNITED STATES V. REVES 9

Because this issue is jurisdictional, the District Court did

not have proper authority to pass on any other aspect of

Bedford’s motion. Williamson, 151 F.3d at 1182. We

therefore reverse the denial of his § 2255 motion to vacate his

sentence, and remand with directions to dismiss the motion

for lack of jurisdiction.

B. Reves’s § 2255 Motion

The District Court was correct that Reves’s motion was

untimely and that he does not qualify for the actual innocence

or equitable tolling exceptions. Reves has alleged that the

judicial opinions leading to the partial or complete

exoneration of his three codefendants (aside from Bedford),

along with the exonerations themselves, are new facts and

evidence supporting the timeliness of his motion under

§ 2255(f)(4), his claim of actual innocence, and his claim that

he is entitled in any event to equitable tolling. However, the

judicial opinions and exonerations regarding others do not

affect the factual or legal basis for Reves’s conviction,

pursuant to his plea agreement, for making a false statement

under 18 U.S.C. § 1001. Reves admitted that he knowingly

and willfully made a material false statement to the FBI in its

investigation of the awarding of the Port of Stockton contract. 

In the wake of the judicial opinions as to others, the conduct

to which Reves pled guilty remains criminal because the

opinions did nothing to alter the scope of conduct covered by

the statute to which Reves pled. Therefore, the District Court

was correct in finding that there were no extraordinary

circumstances that prevented Reves from filing a § 2255

motion within one year of the date on which his judgment of

conviction became final. See Holland v. Florida, 560 U.S.

631, 649 (2010) (equitable tolling requires showing of
10 UNITED STATES V. REVES

“extraordinary circumstances” and diligent pursuit of rights). 

Reves is not eligible for the equitable tolling exception.

We also find that Reves expressly waived his right to

collaterally attack his conviction or sentence through a § 2255

motion in his plea agreement and during his change of plea

colloquy. The record indicates this waiver was express,

knowing, and voluntary, and is therefore enforceable. United

States v. Pruitt, 32 F.3d 431, 433 (9th Cir. 1994).

CONCLUSION

For the foregoing reasons, the judgment of the district

court is AFFIRMED as to Reves, and REVERSED and

REMANDED with directions to dismiss for lack of

jurisdiction as to Bedford.