Denial of Rule 33 Motion Began Running of 2255 Statute of Limitations

U.S. v. Carvajal-Moreno, 2009 WL 1566799 (6/5/09) (unpub'd) - A reversal on a 2255 statute of limitations determination. The statute of limitations clock did not start until 90 days after the 10th affirmed the d. ct.'s denial of the movant's Rule 33 motion following a prior 10th remand. The mag/d. ct. had found the clock began after the 10th initially remanded to vacate the conspiracy conviction and "adjust the sentence accordingly." The remand was not so clearly ministerial that you would expect the movant to have concluded his conviction was final. The remand was open-ended and the d. ct. could have completely resentenced the defendant because the sentencing package had changed by virtue of the elimination of the conspiracy count.