F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

U N I T E D S T A T E S O F A ME R I C A , Plaintiff-Appellee
,

v

.
J

. T Y L E R R E V E S ,

Defendant-Appellant

. N o. 13-15845

D .C. Nos. 2:10-cv-01330- MCE-CMK 2:02-cr-00468- MCE-CMK-3

U N I T E D S T A T E S O F A ME R I C A , Plaintiff-Appellee
,

v

.

L Y N N G. B E D F O R

D , Defendant-Appellant

. N o. 13-15847

D .C. Nos. 2:10-cv-01402- MCE-CMK 2:02-cr-00468- MCE-CMK-2

OPI NI ON

Appeal from the United States District Court for the Eastern District of California Morrison C. Eng land, J r., Chief District J u d g e, Presiding

Submitted November 20, 2014 * San F rancisco, California

* T h e p an el un a n i m o u sl y co n clu d es th is case is su itab le f o r d ecisio n
w ith o u t o ral arg u

m en t. S ee Fed . R. A pp . P . 3 4 (a)(2 ).U N I T E D S T A T E S V

. R E V E S 2

F iled December 15, 2014

B efore: F erdinand F . F ernandez and Sandra S. Ik uta, Circuit J udg e s, and W illiam H. Albritton I I I , Senior

District J udg e. * *

Opinion by

J u d g e Albritton

SUMMARY * * *

Habeas Corpus

The panel affirmed in part, and reversed and remanded in part, in a c onsolidated appeal arising from the district court’s judg ments denying as untimely J

. Ty ler Reves’s and L y nn G

. B edford’s motions to vacate their sentences under 28 U .S.C. § 2255.

The panel hel d t hat the district c ourt did not have jurisdi c tion to consider B edford’s § 2255 motion because B edford, w hose sentence of probation ex pired the day before his motion was filed, w as not “in custody ” at the time he filed his motion, a s required by § 2255(a). The panel held that the F ederal Rules of Civil Procedure did not operat e t o ex tend B edford’s sentence, wh i c h e nded o n a Sunday
, by one more

** T h e H o n orab le William H. A lb ritto n III, Sen io r District J u d g e f o r th e U.S. District Co urt f

o r th e Mid d le District o f A lab am a, sittin g b y d esig n atio n

.

*** T h is su

m m ary co n stitu

tes n o p art o f

th e o p in io n

o f th e co urt. It h as b eenp rep ared b y

co urt staf

f f o r th e co n v en i en ce o f

th e read er.U N I T E D S T A T E S V

. R E V E S 3
day

. The panel ex p lained that the jurisdictional r equirement that a § 2255 motion is only available to a prisoner in c ustody is a condition that either ex ists or do e s n o t ex ist, rather than

a statute of limitation s o r o ther deadline for filing
, a s contemplated by the F ederal Rules. The panel therefore reversed the district c o u r t ’s denial of B edford’s motion a s untimely
, and remanded with directions to dismiss the motion for lack of jurisdiction.

The panel held that the district c ourt was correct t h at Reves’s motion w as untimely and that he does not qualify for the actual innocence or equitable tolling ex ce p t i o n s. The panel wrote that judicial opinions and ex onerations of others do not affect the factual or leg a l b asis for Reves’s conviction pursuant to his plea ag reement. The panel also found that Reves ex pressly waived his rig ht to collaterally at t a c k his conviction or sentence throug h a § 2255 m o t ion in his plea ag reement and during his chang e of plea c olloquy ; a nd concluded that the waiver is enforceable.

COUNSEL

J

. T y ler Reves, Pro Se, Modesto, C a l i fornia, for D efendantAppellant J

. T y ler Reves ; Da niel Malakauskas, Stockton, California, for Defendant-Appellant L y n n G. B edford.

B enjamin B

. W ag ner, United States Attorney
, Camil A

. Skipper, Appellate Chief, a nd Sherry D. Haus , As s istant United States Attorney
, U n ited States Attorney ’s Office, Sacramento, California, for Plaintiff-Appellee.U N I T E D S T A T E S V

. R E V E S 4

OP INION

AL B RI TTON, Senior District J udg e:

This is a consolidated appeal in which Appellants J

. Ty ler Reves and L y

nn G. B edford a

ppeal the District Court’s denial of their motions to v acate their sentences under 2 8 U .S.C. § 2255.

On a ppeal as to B edford, t h e G o vernment argues, inter alia
, that the district c ourt did not have jurisdiction over B edford ’ s m o tion because it was filed the day after his sentence expired, meaning he was no long er “in custody ” as is required to avail oneself of relief under § 2255. B edford responds that because his s e n t e n c e ended on a Sunday
, he

was still able to p roperly file his motion the f ollowing day
, a Monday

. The a

pplicability of the F ederal Rules’ ex tension o f time provisions to the “in custody ” r equirement is an issue o f first impression in the Ninth Circuit.

W e have appellate jurisdiction under 28 U.S.C. §§ 1291 and 2255. W e affirm in part, and reverse and remand in part.

BACKGROUND

The underlying convictions in this case are the result of an F B I investig a tion into an alleg e d ly corrupt scheme involving Appellants and three other defendants. At the relevant time, B edford was on the San J oaquin County B oard o f Supervisors and Reves was hi s l eg islative aide. The o ther r elated d e f e n d a n t s w e re Count y P ro s e c u t o r A l l e n S a w y e r (“Sawy er”), former County Sheriff T. B ax ter Dunn (“Dunn”), and lobby ist Monte D. McF a ll (“McF all”). These latter three defendants formed multiple entities and formed a busi n e s sU N I T E D S T A T E S V

. R E V E S 5
relationship with Sunlaw Energ y Corporation. The criminal investig ation stemmed from alleg a tions that each of the five defendants play ed a role in ens u ring that Sunlaw received a bid to construct a plant in t h e Port o f Stockton instead o f Sunlaw’s competitor, the Calpine Corporation.

Sawy er and D unn each pled g uilty to one count of h onest services mail fraud and received six -month prison sentences. McF a ll we n t t o t r ial and was convicted by a jury o f n ine counts of a ttempted ex tortion and c onspiracy to commit

ex tortion 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 c ounts charg ed in the indictment, a s t h e jury acquitted him o f three counts of mail fraud. McF all was sentenced to 121 months in prison. B e dford and Reves each pled g uilty to one c o unt o f making a false statement under 18 U .S.C. § 1001 and e ach received six ty

months of probation as a sentence.

On March 9, 2009, we reversed McF all’s convictions on five counts, including all three counts o f attempted ex tortion and conspiracy to commit ex tortion related to the Port o f Stockton energ y project, for i n s u f f iciency of the evidence. United States v. McFall
, 55 8 F.3d 951, 953 (9th Cir. 2009). W e reversed the convictions on these three c o u n t s because “the evidence did not establish, nor did the indictment alleg e , that McF a ll obtain e d or attempted to obtain any property o r intang ible rig ht from Calpine [ Corporation] ” as is required b y the definition of ex tortion under the Hobbs A c t. I d. at 958. On resentencing i n September 2009, McF all received a new sentence of 78 months.

1 T h ese in clu d ed n

u m ero u s co un ts o f crim in al activ ity n o t related to th e P o rt o f Sto ck to n p ro j ect.U N I T E D S T A T E S V

. R E V E S 6

More than a y ear after we reversed five of M c Fall’s convictions, Reves filed his § 2255 motion to vacate his sentence on May 27, 2010, and B edford followed suit on J une 7, 2010.

O n J u n e 2 4, 2010, in Skilling v

. United States
, 561 U.S. 358, 40 8

– 0 9 (2010), the Supreme Court narrowed the defini t i o n of honest services mail fraud to include only schemes involving bribery or kickbacks. I n the wake o f that decision, we set a s ide and v acated Dunn and Sawy er’s convictions b ecause the conduct cov e r e d by the h onest services mail fraud statute no long er included the conduct to which they

both pled g uilty

.

I n their § 2255 motions in the District Court and now on appeal, Appellants argue th a t t he McFall and Skilling decisions, and the partial ex oneration of M c Fall and total

ex o neration of Sawy er a n d Dunn, mandate that their convictions also be set aside. The Government opposed the motions, and c ontinues to o ppose them on appeal
, o n the basis that they are untimely and do not qualify for any of the

ex c e ptions to the relevant statute o f limitations. T he district court denied the motions o n those g rounds. Appellants timely appealed.

STANDARD OF REVIEW

W e review a district court’s d enial of a § 2255 motion de

novo. United States v. Ratigan , 351 F .3d 957, 961 (9th Cir. 2003). The district court’s assumption of jurisdict i on, the validity of w aiver of appellate r i ghts, and equitable tolling decisions are all likewise reviewed de novo. United States v

. Ba t t l es , 362 F .3d 1195, 1 196 (9th Cir. 2004) (equitable tolling ); United States v. Bennett , 147 F .3d 912, 913 (9th Cir.U N I T E D S T A T E S V

. R E V E S 7
1998) (jurisdictiona l issues); United S tates v. Buchanan
, 59 F .3d 914, 918 (9th Cir. 1995) (waiver of appellate rig hts). The standard of r e view a pplicable 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 r eview, and because w e find the District Court had no jurisdiction over B edford’s motion, we need not decide w h i c h standard is a ppropriate in this c ase. 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 hav e jurisdiction to consider B edford’s § 2 255 motion. Althoug h the District Court denied both Appellants’ motions as untimely based on the one-y e ar statute of limitations in 28 U.S.C. § 2 2 5 5 ( f )(4), lack o f jurisdiction is a matter which can be r a i s ed a t any time, Bennett , 147 F .3d at 9 14, and must be addressed before any consideration of the merits. See Smith v

. U

. S

. Customs & Border P rot. , 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 n ot addressed by t h e district court); W illiamson v. G regoire , 151 F .3d 1180, 1182 (9th Cir. 1 9 9 8 ) (“ Be c a u se the ‘in c u s t o d y ’ r e q u i r e m en t i s jurisdictional,

. . . it is the first question we must consider on this appeal.”).

Motions to vacate a sentence under 28 U.S.C. § 2255 a re
ex p ressly available only to “a p risoner in custody .” B edford

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

as required by § 2 255(a). See M aleng v

. Cook
, 490 U.S. 488,U N I T E D S T A T E S V

. R E V E S 8

490–91 (1989) (petitioner must be “in custody
, ” whi ch includes supervised release and probation, when motion is filed). B edford’s probation ex p ired the d ay before his motion was filed.

All parties ag re e an d acknowledg e that B e dford’s sentence of probation ended on Sunday
, J une 6, 2010, and his § 2255 motion was filed on Monday
, J une 7, 2010. B edford

ar gu e s this is not fatal to jurisdiction because time p eriods t h at e nd on a Saturday or Sunday
, as was the case he r e,
ex tend t o t h e n ex t working day under F ed. R. App. P. 26. 2 However, the “in custody ” r equi r e m e n t is not a g iven time p e r iod in the same sense that a limitations period is. The F ederal Rules of Civil Procedure did not ope r a t e to ex tend B edford’s sentence by one more day

. Section 2 255 motions, by t he ex plicit terms of the statute, may be broug ht only b y persons “in custody .” Reg ardless of the day of the week, the fact is that B edford was no long er “in custody ” at the end of the ex act d ay that his sentence ex p ired. This jurisdi c t i o n al requirement that a § 2255 motion to vacate is only available to a prisoner in custody is a condition t hat either ex ists o r does not ex ist, r ather than a sta t u t e of limitations or other deadline for filing , as contemplated by the F ederal Rules.

2 Bed f ord cites th e Fed eral Ru les o f A p pellate P ro ced ure to su

p p o rt h is arg u m en t, b u t in th is situ atio n th e ap p licab le p ro v isio n is in stead Fed

. R. Civ

. P

. 6 (a)(1 )(C), w

h ich ex ten ds perio d s en d in g o n a Saturd ay , Su n d ay , o r leg al h ol i d a y to th e n ex t d ay th at is n o t a w eek en d o r h o l id ay

. T h e Fed eral Ru les o f Civ il P ro ced ure ap p ly in § 2 2 5 5 cases i n d istrict co urt to th e ex ten t th at t he y a r e n o t in co n sistent w ith t h e § 2 2 5 5 ru les. See Ru le 1 2 o f th e Ru l es G o v ern in g S ectio n 2 2 55 P ro ceed in g s. T h e l eg al an aly s is

an d resu lt are th e sam e u n der eith er s e t o f ru les, b ecau se th e Ru les of A p pellate an d Civ il P ro ced ure treat w eek en d s an d h o lid ay s th e s am e w ay in co m p u t in g t i m e p erio d s. Co mp a re Fed

. R

. Civ

. P

. 6 (a)(1 )(C), with Fed

. R. A p p . P . 2 6(a)(1 )(C).U N I T E D S T A T E S V

. R E V E S 9

B e cause this issue is jurisdictional, the District Court did not have proper authority to pass on any oth e r a s p e ct o f B edford’s motion. W

illiamson
, 151 F .3d at 1 1 8 2

. W e therefore reverse the denial of his § 2255 motion to vacate his sentence, and r emand with directions to dismiss the motion for lack of jurisdiction.

B

. Reves’s § 2255 Motion

The District Court was correct that Re v e s ’ s motion was untimely a

nd that he does not qualify for the actual innocence

or equitable tolling ex c e ptions. Reves has alleg ed that the j u dicial opinions leading to the partial or c ompl e t e
e x o neration of his three c odefendants (aside from B edford ), along with the ex o nerations themselves, are new facts a nd evidence supporting the ti m e liness of his motion under § 2255(f)(4), his claim of actual innocence, and his claim that he is entitled in a

ny event to e q

uitable tolling

. However, the judicial opinions a

nd e x onerations r eg a r d ing others do not affect the f

actual or leg al basis for R e ves’s conviction, pursuant to his plea ag reement, for making a false statement under 18 U .S.C. § 1 001. Reves admitted t h at h e knowing ly and willfully made a material false statement to the F B I in its investig ation of the awarding of the Port of Stockton c ontract. I n the wake of the judicial opinions as to others, the conduct to which Reves pled g u i lty remains criminal because the opinions d id nothing to a lter the scope of conduct covered b y the statute to w hich Reves pled. T herefore, the District Court

was correct in finding that there wer e no ex traordinary circumstances that prevented Reves from filing a § 2255 motion within one y e ar of the date on which his judg ment o f conviction became final. S ee Holland v. Florida
, 560 U.S. 631, 649 ( 2010) ( equitable tolling re quires showing o fU N I T E D S T A T E S V

. R E V E S 10

“ex traordinary circumstances” and dilig ent pursuit o f rig hts). Reves is not elig ible for the equitable tollingex ception.

W e also find that Reves e x p r e s s ly waived his rig ht to collaterally attack his conviction or sentence throug h a § 2255 motion in h is plea ag reement and during his chang e of plea colloquy

. The record indicates this w aiver was ex press, knowing
, and voluntary
, and is therefore enforceable. United States v. Pruitt , 32 F .3d 431, 433 (9th Cir. 1994).

CONCLUSION

F or the fore going reasons, the judg ment o f the district court is AF F IRMED as to Reves, a n d REVERSED a

nd REMANDE D w i t h directions to dismiss for lack o f jurisdiction as to B e d ford.