United States v. Anthony.
No. 20-6134. W.D.Okla. Judge Tymkovich. 28 USC § 2255—One-Year Limitations Period—Finality of Judgment of Conviction in Deferred Restitution Case.
February 7, 2022
Defendant was convicted of child sex trafficking and conspiracy to commit child sex trafficking. He was sentenced to a term of imprisonment and a term of supervised release. On October 26, 2017, the district court entered a judgment containing the convictions and sentence and deferring a determination of restitution until a later date. On March 5, 2018, the district court amended the initial judgment to include the restitution amount. Defendant’s attorney filed a timely notice of appeal on March 16, 2018, challenging only the restitution amount.
While that appeal was pending, defendant filed a pro se motion under 28 USC § 2255 to vacate, set aside, or correct his sentence, alleging that his trial counsel was ineffective for failing to appeal his conviction and sentence. The Tenth Circuit granted the restitution appeal in part and remanded for recalculation of the restitution amount. On June 8, 2020, while the remanded restitution proceedings were pending, defendant filed another § 2255 motion. The district court dismissed this second motion as untimely, reasoning that defendant failed to file the motion within one year of the date on which his judgment of conviction became final, as required by § 2255.
Defendant argued on appeal that his motion was not untimely because restitution is part of the judgment of conviction and his judgment of conviction will become final only when the pending restitution proceedings are resolved. The start date for the one-year limitations period at issue here is “the date on which the judgment of conviction becomes final.” The Tenth Circuit concluded, based on the federal restitution statutes and US Supreme Court precedent, that restitution is a component of a criminal sentence and is therefore included in the judgment of conviction. This conclusion also conforms with the realities of the sentencing process where when a trial court defers ordering restitution until after sentencing, it does not enter a separate judgment but amends the original judgment to include the restitution amount.
As to § 2255, a judgment of conviction becomes final when there is no further avenue for direct appeal of any portion of the sentence, including restitution. Thus, a remand for resentencing delays finality until the defendant is resentenced and direct review of the new sentence is complete. Here, defendant’s § 2255 limitations period had not yet begun because the restitution proceedings were still pending on remand. Further, while there can be multiple judgments in a deferred restitution case for direct appeal purposes, only one final judgment exists for § 2255 purposes, and restitution is part of the judgment of conviction. Accordingly, defendant’s § 2255 limitations period will only begin once restitution proceedings conclude, so the district court erred by denying the motion as untimely.
Lastly, the Tenth Circuit concluded that in a deferred restitution case a defendant may file an appeal of conviction and sentence within 14 days of either (1) the entry of the initial judgment, or (2) the entry of the amended judgment containing the restitution amount.
The order dismissing defendant’s § 2255 motion as untimely was reversed, the resulting judgment was vacated, and the case was remanded for further proceedings.