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Tenth Circuit: Judgment of Conviction Becomes Final for § 2255 SOL Purposes Upon Conclusion of Direct Review of Deferred Restitution

Answering an open question, the U.S. Court of Appeals for the Tenth Circuit held that a judgment becomes final for purposes of 28 U.S.C. § 2255’s statute of limitations upon conclusion of direct review of the deferred restitution judgment.

On October 26, 2017, the U.S. District Court for the Western District of Oklahoma entered a judgment of conviction against Curtis Anthony related to child sex trafficking and sentenced him to terms of imprisonment and supervised release. The judgment also stated that Anthony was to pay restitution with the amount to be determined at a later date. Months later, on March 5, 2018, the district court amended the initial judgment to include the amount of restitution. Anthony’s attorney filed a timely notice of appeal, challenging only the amount of restitution in spite of Anthony’s stated desire to appeal the conviction and sentence.

The Tenth Circuit vacated the restitution order on appeal and remanded for a recalculation of the amount. United States v. Anthony, 942 F.3d 955 (10th Cir. 2019). On June 8, 2020, while his case was still on remand, Anthony filed a § 2255 motion, alleging his attorney was ineffective for failing to challenge his conviction and sentence on appeal. The district court dismissed the § 2255 motion as untimely, ruling that Anthony’s judgment had become final when the time for filing an appeal of the initial judgment of October 26, 2017, expired.

According to the district court, Anthony had until November 9, 2017, to file a notice of appeal. Because Anthony had not done so, he had until November 10, 2018, to file the § 2255 motion pursuant to that statute’s one-year limitations period.

Anthony appealed the dismissal, arguing that his motion was not untimely because his judgment of conviction had yet to become final due to the ongoing restitution proceedings. (The district court had recalculated the restitution amount, but the Government then appealed.)

The Court noted that this case presents an open question: “when does the judgment of conviction become final in a deferred restitution case?” It observed “[s]ection 2255 provides that a ‘1-year period of limitation shall apply to a motion under this section.’” § 2255(f). Of the four possible start dates of the limitations period, the one applicable to Anthony was “the date on which the judgment of conviction becomes final.” § 2255(f)(1). A judgment of conviction includes a defendant’s sentence as well as his conviction. Berman v. United States, 302 U.S. 211 (1937). For § 2255 purposes, a judgment of conviction does not become final until both the conviction and sentence become final. Burton v. Stewart, 549 U.S. 147 (2007).

The Court concluded that restitution is part of a criminal sentence and therefore included in the judgment of conviction because 18 U.S.C. § 3664(o) provides that a “sentence that imposes an order of restitution is a final judgment” even though “such a sentence” can later be corrected, appealed, amended, or adjusted. Courts are directed to order restitution “when sentencing a defendant.” § 3663(a)(1)(A). In addition, the Mandatory Victims Restitution Act authorizes courts to forgo ordering restitution if determining the amount of the victim’s losses would “complicate or prolong the sentencing process to a degree that the need to provide restitution to any victim is outweighed by the burden on the sentencing process.” § 3663A(c)(3)(B). Finally, the Supreme Court has stated that restitution “serves punitive purposes.” Paroline v. United States, 572 U.S. 434 (2014). Thus, the Court concluded that restitution is a part of the criminal sentence and that it’s a required part of the judgment of conviction.

The Court next addressed the question of when such a judgment containing deferred restitution becomes final. The Court had previously made it clear that “§ 2255’s use of ‘final’ plainly means ‘a decision from which no appeal or writ of error can be taken.’” United States v. Burch, 202 F.3d 1274 (10th Cir. 2000). Finality attaches: (1) when time to file a direct appeal expires without an appeal being noted; or (2) when the U.S. Supreme Court affirms the conviction and sentence on direct review; or (3) when the U.S. Supreme Court denies a petition for certiorari; or (4) when the time for filing a petition for certiorari in the U.S. Supreme Court expires. Clay v. United States, 537 U.S. 522 (2003).

The Court explained that “[i]f any part of the sentence - including restitution - has not been finalized, then the judgment of conviction is not final. This means that a remand for resentencing delays finality until the defendant is resentenced and direct review of the new sentence is complete.” United States v. Carbajal-Moreno, 332 F. App’x 472 (10th Cir. 2009) (unpublished). (Note: this rule applies unless it is a “ministerial remand,” i.e., a remand that requires a “routine, nondiscretionary act by the district court that could not have been appealed on any valid ground.” Id.)

But the Government, relying on Manrique v. United States, 137 S. Ct. 1266 (2017), argued that in the instant case there were two final judgments: the initial October 2017 judgment and the later March 2018 judgment determining restitution. And Anthony had failed to timely appeal the initial judgment; therefore, the initial judgment became final in November 2017.
While the Court agreed that, per Manrique, there were two judgments for purposes of direct appeal, there was only one judgment for § 2255 purposes. This difference between direct appeal and § 2255 is apparent in the text of the applicable statutes: Federal Rule of Appellate Procedure 4(b)(1)(A)(i) provides that criminal defendants must file a notice of appeal within 14 days of entry of “either the judgment or the order being appealed”; whereas, § 2255(f)(1) states “[t]he limitation period shall run from ... [t]he date on which the judgment of conviction becomes final.” The former contemplates that there may be more than one judgment or order from which an appeal may be taken but the latter—by using the definite article “the”—speaks of a single judgment challenged via § 2255, the Court explained.

The Court held that Anthony’s § 2255 motion was timely because his judgment of conviction had yet to become final due to the ongoing restitution proceedings.

Accordingly, the Court reversed the order dismissing his § 2255 motion and remanded for proceedings consistent with the instant opinion. See: United States v. Anthony, 25 F.4th 792 (10th Cir. 2022). 

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