Direct review must be complete before a judgment is final for purposes of a 2255 motion

United States v. Anthony, 2022 WL 363770 (February 8, 2022) (OK): The panel holds that a judgment of conviction is not final for 28 U.S.C. § 2255 limitation purposes until the individual’s sentence becomes final when direct review is complete. The district court sentenced Anthony to a prison term shortly after trial but did not determine the restitution amount until several months later. When Anthony filed a § 2255 motion challenging his conviction, the district court dismissed the motion as untimely. It said that the one year limitations period under § 2255 began to run when Anthony’s time to appeal the initial judgment expired even though restitution proceedings still were pending on direct appeal. The panel said the district court’s reasoning was incorrect. Restitution is part of a criminal sentence and part of the judgment of conviction for § 2255 purposes. (Restitution, after all, serves punitive purposes.) A judgment of conviction becomes final for § 2255 limitation purposes when there is no further avenue for direct appeal of any portion of the sentence, including restitution. When the district court entered the restitution amount Anthony appealed that portion of his sentence. That appeal delayed the finality of the judgment of conviction for § 2255 purposes. Thus, Anthony’s judgment of conviction is not final until the pending restitution proceeding (his appeal) are complete. NOTE: there are two final judgments in deferred restitution cases for direct appeal purposes. One cannot wait to appeal the judgment and prison sentence until the deferred restitution order is entered: the initial judgment and the subsequent restitution order are each immediately appealable final judgments. However, under § 2255(f)(1), there is only one final judgment of conviction. On the topic of restitution, a few words about United States v. Benally, 19 F.4th 1250 (10th Cir. 2021), a case on which we reported several weeks ago. Although reviewing for plain error, the panel ruled against the defense on the restitution issue, it did find that assault resulting in serious bodily injury under 18 U.S.C. § 113(a)(6) is not a crime of violence. It said that Borden's reasoning applied not only to violent felonies but also to crimes of violence. Id. at 1257-58. In a footnote, it also rejected the government’s contention that Benally’s arguments in her supplemental brief were barred by the plea agreement's appellate waiver. The panel explained that “the district court effectively modified that provision to allow Benally to appeal the district court’s [restitution] order.” Id. at 1256. Displeased with this note, the government filed a motion to amend the decision. It asked the court to remove the footnote because it claimed it incorrectly stated the law. Our Emily Carey opposed the motion. She argued, inter alia, that a motion to amend is not the pleading by which a party may ask the court to reconsider its decision. The only way that can be done is by a petition for rehearing. The panel agreed with her and denied the government’s motion. This is not the first time the government has used a motion to amend to ask the court to excise portions of an opinion with which it disagrees. It is important that we continue to fight these motions. If one does not oppose the motion, or if one takes no position, the panel likely will grant the motion and remove something that may be useful to our cause in the future. Emily demonstrated that it is worthwhile to challenge these motions.

"Waiver" of an Argument Easily Occurs, Hard to Overcome

United States v. Fernandez, 20 F.4th 1298 (10th Cir. 2021): The panel’s decision illustrates how broadly and exacting 'waiver' is interpreted. When officers first boarded a Greyhound bus in Albuquerque it was empty for a brief layover. In a nonpublic area and, with no one watching, one officer pulled Fernandez’s bag off the rack and held it “for 30 seconds” to gauge how “heavy it was” and to “observe all sides” before passing it to another officer to do the same. Because the officers testified by handling the bag they could glean its apparent contents, Fernandez argued they illegally searched it. He asked the court to suppress the methamphetamine they later found inside. The district court denied Fernandez’s request. In its view, the officers had not searched the bag because neither “squeezed or manipulated the bag.” It also said the officers’ handling of the bag was no different from what one could reasonably expect from another passenger: it would not be unusual for passengers to “push, move, and even momentarily remove an item from a common luggage area” to make room for their own bag. On appeal, Fernandez again argued that the officers’ handling of his bag went beyond how one would reasonably expect another to interact with his bag. In his argument he emphasized the aggregate circumstances had to be considered which included that the officers were alone on the bus and that each examined the bag in their hands for at least 30 seconds. [NOTE: the government solicited from the officers that each held the bag for at least 30 seconds. And the court solicited from them that they were alone on the bus.] The panel declined to address the issue because it said was waived. During argument in the district court, Fernandez did not stress the time in which the officers held the bag. Because he made the time a component of his argument on appeal, he waived the argument. The panel said, "there was no reason to believe that the court was even thinking about how long the officers held the bag . . . " [Apparently, how long they held the bag was not part of the 'totality of the circumstances' the court considered in its deliberations.] Given the circuit's unfortunate precedent, United States v. Bowline, 917 F.3d 1227 (10th Cir. 2019), plain error review does not apply. Besides said the panel, Fernandez did not ask for plain error review. [NOTE: The fact that Fernandez did argue the court should review for plain error, if it believed the government’s waiver argument, did not matter to the panel. There is an entrenched circuit split on whether plain error review is available for issues deemed 'waived.'] Fernandez also argued that he did not abandon his bag when he answered ‘no’ to the officer’s question, 'do you have luggage on the bus with us?' To begin with, his answer was not untruthful, because ‘luggage’ as it is commonly understood means suitcase. Fernandez had only a small travel bag. Additionally, the officer’s question was not specific enough for him to have renounced his property and privacy rights in the bag. In Byrd v. United States, the Court emphasized that lawful possession is characterized primarily by “the right to exclude others.” 138 S.Ct. at 1527. Fernandez still retained a superior property right in the bag and at any point before the officer grabbed the bag, Fernandez could have gotten up and taken it to his seat. The panel was unmoved. It said none of its prior decisions require a more specific question than the one asked here. The officer asked Fernandez repeatedly if he had any luggage and he answered no each time. According to the panel, Fernandez abandoned the bag. Regarding Fernandez’s argument that the district court should have questioned the officer in camera regarding his informants at Greyhound, the panel said the court’s ruling was correct. It did not matter to the panel that the district court sustained the government’s privilege objection when Fernandez asked whether the officer paid the informants. Nothing in the record showed that Fernandez could not have asked the officer questions about his informers’ duties. Besides Fernandez could not prove the officer’s informants were the reason that Greyhound did not produce video from the restricted areas in which the officers boarded the bus to ‘pre-search’ luggage.

Speedy Trial Act Violated; Delays in Transfer Were Not Reasonably Excluded From Speedy Trial Clock

United States v. Black, 2022 WL 288173 (February 1, 2022) (KS): the panel finds the Speedy Trial Act was violated and reverses the district court’s denial of Black’s motion to dismiss the indictment. (J. Phillips dissented.). Black was arrested in Missouri and indicted for robberies in both the Western District of Missouri and the District of Kansas. While in Missouri, Black asked the District of Kansas to transfer the charges to Missouri pursuant to Fed.R.Crim.P. 20 so he could plead guilty there. Kansas transferred the indictment to Missouri and then on the docket marked the case and charges terminated. When he was arraigned in Missouri, Black didn’t plead guilty to the Kansas charges. The Missouri court was required by Rule 20 to return the case to Kansas for trial. That was done 6 months later. A month after that the Missouri district court accepted Black’s guilty plea on the Missouri charges. It then waited 50 days to schedule sentencing, which didn’t take place until 11 months after he arraigned. Black appeared in the District of Kansas 16 days later. The government argued that the charges remained pending in Kansas in spite of the transfer, therefore, the speedy trial clock started eleven months after the Missouri arraignment, when Black first appeared in Kansas. The panel disagreed. It held that when Black was arraigned in Missouri, the Kansas robbery charges were pending there. In other words, by transferring the case from Kansas to Missouri, only the Missouri court “had possession and control of the case.” At that time then, the Missouri court was the only court where the Kansas charges were pending. Rule 20, the panel added, treats “a prosecution” as something that can occur only in one district.” Thus, regarding the Kansas charges, the speedy trial clock started on the date Black was arraigned in Missouri. The panel said that a 50-day delay in Missouri and another of at least 54 days in Kansas could not be reasonably excluded from the speedy trial count. Because more than 70 non-excludable days elapsed between Black’s first appearance in Missouri and his motion to dismiss, the Speedy Trial Act was violated. The panel remanded the case to the district court to decide whether to dismiss the indictment with or without prejudice.