Jarrod Johnson v. United States, 457 F. App'x 462

Jarrod Johnson was convicted in the Eastern District of Michigan of bank robbery, using/carrying/brandishing a firearm during a crime of violence, and felon in possession, receiving concurrent 115-month sentences on counts 1 and 3 and an 84-month consecutive sentence on count 2.
On direct appeal the Sixth Circuit affirmed and remanded for resentence in light of Booker; the district court resentenced Johnson to concurrent 96-month terms for counts 1 and 3 and kept 84-month consecutive sentence for count 2, with amended judgment entered January 24, 2007.
Johnson claimed his counsel instructed a notice of appeal at resentencing, but no timely notice was filed; a May 15, 2007 letter to the district court purported to restore appellate rights and was docketed as a notice of appeal.
The Sixth Circuit ordered Johnson to show cause; on July 30, 2007 the appeal was dismissed for lack of jurisdiction as untimely.
Johnson later sent additional letters in August 2007 and August 2008; he filed a pro se § 2255 petition on August 13, 2008 asserting ineffective assistance claims, including counsel’s failure to file a timely notice of appeal.
The district court dismissed the § 2255 petition as untimely; Johnson appealed, challenging timeliness under § 2255.

Issue	Plaintiff's Argument	Defendant's Argument	Held
When did Johnson's conviction become final for § 2255(f)(1)?	Finality could be delayed by a reopened direct review due to untimely notice of appeal.	Finality occurred February 7, 2007, ten days after amended judgment; untimely notice did not delay finality.	Finality occurred February 7, 2007; no delayed finality.
Whether Johnson’s August 2, 2007 letter can be treated as a § 2255 petition for tolling purposes under § 2255(f)(1).	Letter showed intent to file a § 2255; liberal construction should toll.	Letter did not meet § 2255 form requirements and did not express grounds for relief.	Letter cannot be construed as a § 2255 petition; § 2255(f)(1) time bar stands.
Timeliness under § 2255(f)(4) based on discovery of the supporting facts.	Limitation should start when the facts supporting the claim could have been discovered, i.e., when no timely appeal was discovered.	Dates earlier than July 30, 2007 notified Johnson of untimely appeal; discovery occurred then.	Limitation began no later than July 30, 2007; petition filed August 13, 2008 was untimely under § 2255(f)(4).
Whether equitable tolling applies to save Johnson’s § 2255 petition.	Confusion over complex law and the district court’s docketing as an appeal could warrant tolling.	No extraordinary circumstances prevented timely filing; Johnson was not diligent and was responsible for his confusion.	No equitable tolling; petition untimely.

Clay v. United States, 537 U.S. 522 (U.S. 2003) (finality tied to time for certiorari review)
Sanchez-Castellano v. United States, 358 F.3d 424 (6th Cir. 2004) (finality for non-appealing defendants upon expiration of appeal period)
Jimenez v. Quarterman, 555 U.S. 113 (U.S. 2009) (nonfinality when direct review reopened during pendency)
Searcy v. Carter, 246 F.3d 515 (6th Cir. 2001) (late appeal concepts and AEDPA timing concerns)
Wims v. United States, 225 F.3d 186 (2d Cir. 2000) (beginning of § 2255(f)(4) based on discovery of facts)
Keenan v. Bagley, 400 F.3d 417 (6th Cir. 2005) (equitable tolling under prior five-factor test)
Beard v. Banks, 542 U.S. 406 (U.S. 2004) (context for evolving tolling standards)
Capaldi v. Pontesso, 135 F.3d 1122 (6th Cir. 1998) (reliance on misapprehensions of filing deadlines)
United States v. Hoye, 548 F.2d 1271 (6th Cir. 1977) (informal notice and intent to appeal considerations)
Sanchez-Castellano v. United States, 358 F.3d 424 (6th Cir. 2004) (reiterated finality rule for non-appealing defendants)