[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 20-11453

Non-Argument Calendar

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D.C. Docket No. 8:19-cv-01604-JSM-JSS

NICHOLAS BORGESANO,

 Petitioner-Appellant,

versus

UNITED STATES OF AMERICA, 

 Respondent-Appellee.

________________________

Appeal from the United States District Court

for the Middle District of Florida

________________________

Before NEWSOM, BRANCH, and ANDERSON, Circuit Judges.

PER CURIAM: 

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Nicholas Borgesano, a federal prisoner, appeals the district court’s dismissal 

of his 28 U.S.C. § 2255 motion to vacate sentence as untimely. We granted a

certificate of appealability (“COA”) on the issue of “[w]hether the district court 

erred in dismissing Borgesano’s 28 U.S.C. § 2255 motion to vacate, set aside, or 

correct his sentence as untimely.” Borgesano argues that his § 2255 motion was 

timely because the trial court amended the judgment in his criminal case to include 

a copy of the preliminary order of forfeiture, which restarted the one-year filing 

deadline for his § 2255 motion. Alternatively, he argues that he was entitled to 

equitable tolling. After review, we affirm. 

I. Background

In 2017, Borgesano pleaded guilty to conspiracy to commit healthcare fraud

(“Count 1”) and conspiracy to engage in monetary transactions in property derived 

from specified unlawful activity (“Count II”). Prior to the sentencing hearing, the 

government filed a motion for an order of forfeiture in the amount of $54,504,778, 

as well as a preliminary order of forfeiture for various specified assets. The 

government requested that the district court include the forfeiture when orally 

pronouncing sentence and include the forfeiture order in the judgment, as required 

by Federal Rule of Criminal Procedure 32.2(b)(4)(B). Shortly thereafter, in 

February 2018, the district court entered an order of forfeiture and preliminary 

order of forfeiture. 

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On April 26, 2018, the district court sentenced Borgesano to 120 months’ 

imprisonment on Count 1 and 60 months’ imprisonment on Count 2, to be served 

consecutively, followed by concurrent terms of 3 years’ supervised release. When 

pronouncing sentence, the district court stated that “[t]he previous Forfeiture 

Judgment will be made a part of this Final Judgment.” The district court entered 

the written judgment that same day, which stated that “Defendant shall forfeit to 

the United States those assets previously identified in the Preliminary Order of 

Forfeiture for Substitute Assets, attached hereto, that are subject to forfeiture.” 

However, the district court failed to attach the February 2018 preliminary order of 

forfeiture. 

On June 18, 2018, the government filed a motion to amend the judgment to 

include the February 2018 order of forfeiture and preliminary order of forfeiture, 

pursuant to Federal Rule of Criminal Procedure 36. The district court granted the 

motion and entered an amended judgment that included the February 2018 

preliminary forfeiture order on June 19, 2018. Borgesano did not file a direct 

appeal. 

On May 9, 2019, Borgesano filed a pro se § 2255 motion, but he failed to 

include a supporting memorandum and supporting facts. The district court ordered 

Borgesano to show cause as to why the motion should not be denied for failure to 

file a memorandum with supporting facts. Instead of supplementing the § 2255 

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motion, Borgesano filed a motion to voluntarily dismiss the § 2255 motion without 

prejudice, stating that he would refile a § 2255 motion at an unspecified future 

date. The district court granted the motion to voluntarily dismiss in part, 

explaining that it dismissed the § 2255 motion without prejudice, but that 

Borgesano’s one-year limitations period for filing a timely § 2255 motion expired 

on May 10, 2019, and it would not grant him an extension of time. 

Subsequently, on July 2, 2019, Borgesano filed another pro se § 2255 

motion. Borgesano asserted that his motion was timely because based on the entry 

of the amended judgment he had until July 3, 2019, to file a timely § 2255 motion. 

In response, the government argued that the § 2255 motion was untimely and 

warranted dismissal. The government maintained that the entry of an amended 

judgment to correct a clerical error does not toll or otherwise reset the limitations 

period for purposes of § 2255 and Borgesano was not entitled to equitable tolling. 

Borgesano replied that his § 2255 motion was timely because (1) forfeiture is an 

integral part of the sentence and the amended judgment was a substantive 

alteration, not the correction of a clerical error, and (2) the limitations period for 

purposes of § 2255 did not begin to run until the expiration of his ability to pursue 

direct review of the amended judgment. 

The district court dismissed Borgesano’s § 2255 motion as untimely. The 

district court concluded that the amended judgment did not make a substantive 

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correction or alteration to Borgesano’s sentence. Instead, the amended judgment 

was a clerical correction as the court simply attached the previously entered 

forfeiture order, which the district court had referenced in the original judgment 

and orally pronounced at sentencing. The district court explained that an amended 

judgment to make a clerical correction does not reset the statute of limitations

period, and, therefore, Borgesano’s § 2255 motion was untimely. Furthermore, the 

district court determined that Borgesano was not entitled to equitable tolling. The 

district court denied Borgesano a COA, but, as discussed, we granted him a COA

on the issue of “[w]hether the district court erred in dismissing Borgesano’s 

28 U.S.C. § 2255 motion to vacate, set aside, or correct his sentence as untimely.”1

 

II. Discussion

Borgesano argues that his judgment was incomplete until entry of the 

amended judgment because forfeiture is a mandatory component of sentencing, 

and his § 2255 motion was therefore timely because it was filed within the relevant 

limitations period from the amended judgment. Alternatively, he argues that, even 

if his § 2255 motion was untimely, the district court erred in determining that he 

was not entitled to equitable tolling.2

 

1 Borgesano retained counsel to represent him in this appeal. 

2 It is well-established that “appellate review is limited to the issues specified in the 

COA.” Murray v. United States, 145 F.3d 1249, 1251 (11th Cir. 1998). Thus, the government 

argues that we should not consider Borgesano’s equitable tolling argument because it is outside 

the scope of the issue identified in the COA. We disagree. Although the COA does not 

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The Antiterrorism and Effective Death Penalty Act (“AEDPA”) imposes a 

one-year statute of limitations for filing a § 2255 motion that begins to run, as 

relevant here, from “the date on which the judgment of conviction becomes final.” 

28 U.S.C. § 2255(f)(1). Although § 2255(f) does not define “judgment of 

conviction” or “final,” we have held that when, as in this case, a criminal defendant 

does not pursue a direct appeal, his judgment of conviction becomes final when the 

time for filing a notice of appeal expires. Mederos v. United States, 218 F.3d 

1252, 1253 (11th Cir. 2000). The time for filing a notice of appeal from a criminal 

judgment is 14 days after “the entry of either the judgment or the order being 

appealed.” Fed. R. App. P. 4(b)(1)(A)(i). 

The determinative issue in this case is whether the June 19, 2018 amended 

judgment, which included the previously omitted forfeiture order, was a clerical 

correction or a substantive alteration to the sentence. As will be explained further, 

if it was a clerical correction, then Borgesano’s original judgment became final on 

May 9, 2018, and his July 2, 2019 § 2255 motion was untimely. On the other 

hand, if the amended judgment was a substantive alteration to his sentence, then it 

would have triggered a new one-year limitations period under § 2255, and 

expressly mention the equitable tolling issue, we held previously that equitable tolling is 

subsumed within a COA on the issue of whether a habeas petition is timely because, in order to 

determine whether the statute of limitations bars the petition, “we must consider 

whether . . . equitable tolling excepts the one-year filing deadline. If [the petitioner] can 

demonstrate . . . that equitable tolling applies to his case, then his petition is timely.” Lawrence 

v. Florida, 421 F.3d 1221, 1225–26 (11th Cir. 2005). 

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Borgesano’s § 2255 motion would have been timely. We review the district 

court’s determination that a § 2255 motion is untimely and its determination that a 

movant is not entitled to equitable tolling de novo. Jones v. United States, 304 

F.3d 1035, 1037 (11th Cir. 2002). 

“[C]riminal forfeiture is part of a defendant’s sentence.” United States v. 

Gilbert, 244 F.3d 888, 924 (11th Cir. 2001). Federal Rule of Criminal Procedure 

32.2 governs criminal forfeiture. Specifically, Rule 32.2 provides that 

[a]s soon as practical . . . after a plea of guilty or nolo contendere is 

accepted, on any count in an indictment or information regarding 

which criminal forfeiture is sought, the court must determine what 

property is subject to forfeiture under the applicable statute. If the 

government seeks forfeiture of specific property, the court must 

determine whether the government has established the requisite nexus 

between the property and the offense. If the government seeks a 

personal money judgment, the court must determine the amount of 

money that the defendant will be ordered to pay.

Fed. R. Crim. P. 32.2(b)(1)(A). “If the court finds that property is subject to 

forfeiture, it must promptly enter a preliminary order of forfeiture setting forth the 

amount of any money judgment, directing the forfeiture of specific property, and 

directing the forfeiture of any substitute property if the government has met the 

statutory criteria.” Id. Rule 32.2(b)(2)(A). The Rule further provides that “[a]t 

sentencing—or at any time before sentencing if the defendant consents—the 

preliminary order becomes final as to the defendant.” Id. Rule 32.2(b)(4)(A). 

Importantly, 

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[t]he court must include the forfeiture when orally announcing the 

sentence or must otherwise ensure that the defendant knows of the 

forfeiture at sentencing. The court must also include the forfeiture 

order, directly or by reference, in the judgment, but the court’s failure 

to do so may be corrected at any time under Rule 36.

Id. Rule 32.2(b)(4)(B). 

Rule 36 provides that “[a]fter giving any notice it considers appropriate, the 

court may at any time correct a clerical error in a judgment, order, or other part of 

the record, or correct an error in the record arising from oversight or omission.” 

Fed. R. Crim. P. 36. It is well-established that “Rule 36 may not be used to make a 

substantive alteration to a criminal sentence.” United States v. Portillo, 363 F.3d 

1161, 1164 (11th Cir. 2004) (quotation omitted). “[W]hen a court corrects a 

clerical mistake, no new judgment arises for the purposes of Federal Rule of 

Appellate Procedure 4(b)(1)(A).” Patterson v. Fla. Dep’t of Corr., 849 F.3d 1321,

1326 (11th Cir. 2017) (en banc) (citing Portillo, 363 F.3d 1165–66).

3

Borgesano argues that his judgment was “incomplete” until the district court 

entered the amended judgment that included the forfeiture order. We disagree. 

The district court mentioned the preliminary forfeiture order when it orally 

announced the sentence and referenced it in the original April 26, 2018 judgment, 

3 Borgesano argues that, because Rule 36 does not address expressly whether a motion 

under the rule suspends the time for filing a notice of appeal from the judgment of conviction, we 

should assume that it does. This argument is foreclosed by our holding in Portillo that an 

amended judgment, pursuant to Rule 36, did not alter the time period for filing a notice of appeal 

from the judgment. 363 F.3d at 1165–66, 1166 n.6. 

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and the preliminary order of forfeiture became final as to Borgesano at sentencing 

under Rule 32.2(b)(4). At that point, Borgesano’s judgment was complete. 

Although the district court inadvertently failed to attach the preliminary forfeiture 

order to the judgment, Rule 32.2(b)(4)(B) provides that this error may be corrected 

at any time under Rule 36. 

Borgesano maintains that the amended judgment was not simply a clerical 

correction, but rather was a modification of his judgment. We disagree. As 

discussed, Rule 36 is used to make clerical corrections, not substantive alterations 

to a judgment. Thus, the fact that Rule 32.2(b)(4) authorizes the use of Rule 36 to 

“correct” a judgment to include an omitted preliminary forfeiture order confirms 

that such a correction is clerical in nature not substantive. Furthermore, the 

amended judgment did not alter Borgesano’s sentence because it did not change 

the previously entered forfeiture order or make Borgesano’s “sentence more 

onerous,” and his liability remained the same.4

 Portillo, 363 F.3d at 1165. 

4

 In his briefing, Borgesano notes that, following his sentencing, the government moved 

for a final order of forfeiture of certain assets, which the district court granted. Therefore, he 

maintains that his judgment was incomplete because there remained something to be done 

concerning forfeiture and the district court did not grant the government’s motion for preliminary 

order of forfeiture and final order of forfeiture until after the issuance of the April 26, 2018 

judgment. Borgesano’s arguments are unpersuasive. As an initial matter, his contention that the 

preliminary order of forfeiture was not issued until after the April 26, 2018 judgment is belied by 

the record. The preliminary order of forfeiture was issued in February 2018 prior to Borgesano’s 

sentencing. The preliminary order of forfeiture becomes final unless a third party asserts an

interest in the property subject to the forfeiture order. See Fed. R. Crim. P. 32.2(c)(2). Where a 

third-party asserts an interest in the property to be forfeited, the district court is required to 

conduct an ancillary proceeding to resolve that interest, and must then enter a final order of 

forfeiture following the ancillary proceeding. Id. Rule 32.2(c)(1)–(2). “An ancillary proceeding 

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Accordingly, because the amended judgment was a clerical correction, “no new 

judgment [arose] for the purposes of Federal Rule of Appellate Procedure 

4(b)(1)(A).” Patterson, 849 F.3d at 1326; Portillo, 363 F.3d at 1165–66. 

Therefore, it had no effect on the finality of Borgesano’s “judgment of conviction” 

and did not alter the “date on which the judgment of conviction [became] final” for 

purposes of § 2255’s statute of limitations. In other words, the original April 26, 

2018 judgment remained the operative judgment for purposes of calculating 

Borgesano’s § 2255 limitations period.5

 

The April 26, 2018 judgment became final 14 days after its entry on May 10, 

2018 when the window for filing a direct appeal expired. Mederos, 218 F.3d at 

1253. Thus, Borgesano had until May 10, 2019 to file a timely § 2255 motion. 

is not part of sentencing,” and the subsequent final order of forfeiture does not impact the 

validity of the preliminary forfeiture order or the judgment. See generally Fed. R. Crim. P. 

32.2(b), (c). In any event, the post-sentencing final order of forfeiture was not the order 

incorporated via the amended judgment. Rather, the amended judgment incorporated the 

previously entered February 2018 preliminary forfeiture order, as required under Fed. R. Crim. 

P. 32.2(b). 

5 Borgesano contends that our conclusion is inconsistent with Ferreira v. Secretary, the 

Department of Corrections, 494 F.3d 1286 (11th Cir. 2007), and Burton v. Stewart, 549 U.S. 147 

(2007), which involved the one-year limitations period under 28 U.S.C. § 2244(d)(1) applicable 

to federal habeas petitions filed by state prisoners. Burton reaffirmed the principle that a final 

judgment in a criminal case encompasses both the conviction and sentence. 549 U.S. at 156. 

We applied Burton in Ferreria and determined that AEDPA’s statute of limitations provisions 

are “specifically focused on the judgment which holds the petitioner in confinement . . . [and] the 

judgment of conviction and the sentencing judgment together form the judgment that imprisons 

the petitioner.” 494 F.3d at 1293. Thus, we held that where a defendant is resentenced, the 

defendant becomes confined under a new judgment, which triggers anew § 2244(d)(1)’s oneyear statute of limitations period. Id. Unlike Ferreria, Borgesano was not resentenced, and his 

conviction and sentence remained the same under the amended judgment. Accordingly, there 

was no new judgment for purposes of triggering anew § 2255’s limitations period. 

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See 28 U.S.C. § 2255(f)(1). Although he filed a § 2255 motion on May 9, 2019 

within the one-year time frame, he successfully moved for its dismissal without 

prejudice. Therefore, the district court properly determined that the July 2, 2019 

§ 2255 motion was untimely. 

Borgesano argues that, even if his § 2255 motion was untimely, he is entitled 

to equitable tolling because of the confusion surrounding the amended judgment 

and whether it triggered anew § 2255’s one-year statute of limitations period. We 

disagree. 

“[P]ro se litigants, like all others, are deemed to know of [AEDPA’s] oneyear statute of limitations.” Outler v. United States, 485 F.3d 1273, 1282 n.4 (11th 

Cir. 2007). AEDPA’s limitations period may be equitably tolled, but the movant 

must show “(1) that he has been pursuing his rights diligently, and (2) that some 

extraordinary circumstance stood in his way and prevented timely filing.” Holland 

v. Florida, 560 U.S. 631, 649 (2010) (quotation omitted); see also Sandvik v. 

United States, 177 F.3d 1269, 1271–72 (11th Cir. 1999) (holding that the same 

equitable tolling principles that are applied to 28 U.S.C. § 2244’s statute of 

limitations apply equally to § 2255). To show diligence, a movant must show that 

an effort was made to determine the limitations period and must show how the 

alleged extraordinary circumstance “thwarted his efforts” to file a timely petition. 

Arthur v. Allen, 452 F.3d 1234, 1253 (11th Cir. 2006) (quotation omitted). The 

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focus of the “extraordinary circumstances” inquiry “is on the circumstances 

surrounding the late filing of the habeas petition . . . and whether the conduct of 

others prevented the petitioner from timely filing.” Id. (quotations and citations 

omitted). The movant must “show a causal connection between the alleged 

extraordinary circumstances and the late filing of the petition.” San Martin v. 

McNeil, 633 F.3d 1257, 1267 (11th Cir. 2011). Equitable tolling is “an 

extraordinary remedy [that] is typically applied sparingly.” Arthur, 452 F.3d at 

1252 (quotation omitted).

Borgesano has not established that some extraordinary circumstance stood in 

his way and prevented timely filing of a § 2255 motion. Indeed, the record belies 

such a contention because he filed a barebones timely § 2255 motion the day 

before the expiration of the statute of limitations and he had the opportunity to 

supplement it with supporting facts and argument. Rather than take that 

opportunity, however, he moved to voluntarily dismiss it. His incorrect belief that 

he had additional time to file a timely § 2255 motion because of the amended 

judgment is insufficient to warrant equitable tolling. Both the Supreme Court and 

this Court have held repeatedly that legal confusion or a mistake in calculating 

AEDPA’s statute of limitations period—whether the result of counsel error or pro 

se error—does not warrant equitable tolling. See, e.g., Lawrence v. Florida, 549 

U.S. 327, 336 (2007) (holding that counsel’s miscalculation of the limitations 

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period “is simply not sufficient to warrant equitable tolling” and rejecting a claim 

for equitable tolling on the basis of legal confusion); Steed v. Head, 219 F.3d 1298, 

1300 (11th Cir. 2000) (holding that “an attorney’s miscalculation of the limitations 

period or mistake is not a basis for equitable tolling”); Rivers v. United States, 416 

F.3d 1319, 1323 (11th Cir. 2005) (explaining that a lack of a legal education and 

related confusion about the law did not excuse petitioner’s failure to exercise due 

diligence). 

Moreover, we note that in its June 3, 2019, order granting in part 

Borgesano’s motion to voluntarily dismiss the timely § 2255 motion, the district 

court stated that the statute of limitations had expired, at which point Borgesano 

was on notice of the potential issue. Yet he did not ask the district court for an 

extension of time or otherwise notify the court that he believed the statute of 

limitations ran from the amended judgment as opposed to the original judgment, 

and he waited approximately a month to file another § 2255 motion. Under these 

circumstances, Borgesano cannot establish either due diligence or “extraordinary 

circumstances that were beyond his control and unavoidable even with diligence.” 

Sandvik, 177 F.3d at 1271. Accordingly, the district court did not err in 

determining that Borgesano had not made a sufficient showing to warrant equitable 

tolling. 

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III. Conclusion

For the above reasons, we affirm the dismissal of Borgesano’s § 2255 

motion as untimely.

AFFIRMED.

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