United States District Court, N.D. Texas, Dallas Division
ORDER ACCEPTING FINDINGS AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
O'CONNOR UNITED STATES DISTRICT JUDGE
United States Magistrate Judge made Findings, Conclusions,
and a Recommendation in this case. Respondent and Petitioner
filed objections, and the District Court has made a de
novo review of those portions of the proposed findings
and recommendation to which objection was made. For the
reasons set out below, the objections are overruled, and the
Court ACCEPTS the Findings, Conclusions, and
Recommendation of the United States Magistrate Judge.
Government objects to footnote 1 of the Magistrate
Judge's recommendation, which concluded that the section
2255 motion was timely filed for purposes of the one-year
statute of limitations period. Otherwise, the Government
agrees that the section 2255 motion should be denied.
cases such as this, “in which a defendant's
conviction is affirmed on appeal but the case is remanded for
resentencing [here restitution], the defendant's
conviction becomes final for limitations purposes under the
AEDPA when ... both the conviction and sentence become final
by the conclusion of direct review or the expiration of time
for seeking such review.” United States v.
Messervey, 269 Fed.Appx. 379, 381 (5th Cir. 2008) (per
curiam) (citing Burton v.Stewart, 549 U.S. 147,
156-157 (2007) (per curiam) (where state appellate court
remands for resentencing, the limitations period does not
begin until both the conviction and resentencing claims are
final on direct review)); see also Scott v. Hubert,
635 F.3d 659, 664-667 (5th Cir. 2011) (holding the same in
the context of a state habeas petition sunder 28 U.S.C.
Court reached the same conclusion in a § 2255 case where
the defendant's sentence and restitution had been vacated
in part and the case remanded for resentencing. See
Bazemore v. United States, 3:15-CV-03574-O, 2015 WL
9948109, at *1 (N.D. Tex. Nov. 6, 2015), recommendation
adopted, 2016 WL 368004 (N.D. Tex. Jan. 29, 2016)
(dismissing § 2255 motion without prejudice pending
completion of direct appeal and noting that the conviction
was not final for statute of limitations purposes until both
the conviction and sentence were final). Moreover, at least
two circuits have held that the one-year limitations period
for filing a § 2255 motion begins to run when the
district court's revised restitution order on remand
becomes final. See Gonzalez v. United States, 792
F.3d 232, 235-36 (2nd Cir. 2015); United States v.
Lafromboise, 427 F.3d 680, 683-84 (9th Cir. 2005) (when
the court of appeals either partially or wholly reverses a
defendant's conviction or sentence, or both, and
expressly remands to the district court, the judgment does
not become “final, ” and the one-year limitations
period for filing a § 2255 motion does not begin to run,
until the district court has entered an amended judgment and
the time for appealing that judgment has passed); see
also United States v. Colvin, 204 F.3d 1221, 1224-26
(9th Cir. 2000) (explaining the legal and policy rationale
for adopting a clear rule of finality when the court of
appeals either partially or wholly reverses a defendant's
conviction or sentence, or both, and expressly remands the
case to the district court).
Government relies on United States v. Olvera, 775
F.3d 726, 728 (5th Cir. 2015), where a motion to reduce under
Rule 35(b) ultimately resulted in the entry of an amended
judgment reducing the sentence. There, the United States
Court of Appeals for the Fifth Circuit held that the one-year
limitations period did not renew and, “because the
sentence reduction ha[d] no impact on the finality of
Olvera's conviction, his [section 2255] motion was
untimely under § 2255(f)(1).” Id. In
seeking to extend Olvera, the Government claims that
the litigation over restitution had no impact on the finality
of Petitioner's conviction or sentence just like the
motion to reduce sentence in Olvera. Doc. 21 at 6.
However, Olvera is distinguishable in that it dealt
with whether a post-judgment motion can revive an already
expired one-year limitations period, and not when a partial
remand for sentencing purposes becomes final. The Government
also asserts that the Petitioner could have challenged his
conviction contemporaneously with the petition for writ of
certiorari, but failed to do so. Id. Doc. 21 at 6-7.
That argument is inapposite. Again the real issue is when
Petitioner's conviction became final for purposes of
§ 2255 relief. Under Messervey and
Burton, supra, the Court concludes that
finality is determined when both the conviction
and the sentence become final. The Court, thus,
overrules the Government's objection and finds that the
section 2255 motion was timely filed.
objects to the Magistrate Judge's recommendation insofar
as it recommends that his § 2255 motion should be
claims he is actually innocent and argues at length that the
evidence on which the Government relied at trial proves his
innocence. Doc. 24 at 4-7. However, as the Magistrate Judge
correctly found Petitioner has failed to present any new
evidence that would undermine this Court's
confidence regarding the finding of guilt by the jury at
trial. See McQuiggin v. Perkins, U.S., 133 S.Ct.
1924, 1928, 1935 (2013) (to establish actual innocence, a
petitioner must present new evidence in support of his claim
and “‘show that it is more likely than not that
no reasonable juror would have convicted him in the light of
the new evidence.'”).
even when liberally construed, Petitioner's arguments
challenging his underlying conviction fail to offer a
convincing claim of actual innocence. Indeed, as the Supreme
Court has noted “tenable actual-innocence gateway pleas
are rare.” Id. at 1942.
has also failed to show ineffective assistance of counsel on
appeal. Doc. 24 at 10-11. Again his arguments, even when
liberally construed, do not present a credible, non-frivolous
issue for appeal that was stronger than the issues his
counsel presented. Consequently, the Court finds that grounds
1-4 and 6, including the prosecutorial allegations raised in
Petitioner's objections, are procedurally barred.
Petitioner takes issue with the denial of his claims of
ineffective assistance of counsel at trial. The Magistrate
Judge concluded the claims were vague and conclusory. In his
objections, Petitioner seeks to expand his assertions,
presenting new, general allegations in support of his
ineffectiveness claims. Doc. 24 at 10. However, even assuming
Petitioner could establish deficient performance, he has
clearly failed to meet the heavy burden of showing prejudice
- namely that counsel's deficient performance would have
affected the outcome of his case. See Strickland v.
Washington, 466 U.S. 668, 694 (1984) (to prove
prejudice, “[t]he defendant must show that there is a
reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would
have been different.”).
Petitioner adds a new claim in support of ground 6 - abuse of
discretion - initially raised in the § 2255 motion.
Specifically, he argues the undersigned should have recused
before trial to maintain an appearance of impartiality and to
avoid a “sham trial.” Doc. 24 at 11-13. However,
as previously noted, ground 6 is procedurally ...