462 F. App'x 827
10th Cir.2012Background
- Najera was convicted in 2006 on multiple counts of sexual assault and incest; the Wyoming Supreme Court affirmed but remanded for a new judgment and sentence due to merging counts.
- Final amended sentencing order was entered on September 10, 2009, after remand.
- Najera filed a Wyoming Rule 35(b) sentence-reduction motion on August 2, 2010; denial occurred August 9, 2010, with no timely appeal.
- Najera then filed state post-conviction relief on August 23, 2010; the trial court dismissed it and the Wyoming Supreme Court denied certiorari on November 16, 2010.
- Najera filed his federal § 2254 petition on February 16, 2011, which the district court dismissed as untimely under AEDPA § 2244(d).
- The district court and court of appeals held the petition untimely, with tolling considerations under § 2244(d)(1)–(d)(2) and no grounds for equitable tolling.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| When did final judgment occur for AEDPA purposes? | Najera contends finality began after remand and new judgment; sentence on remand was not final until completion of resentencing and direct review. | The remand was not ministerial; final judgment was after the September 10, 2009 entry and related direct review window. | Final judgment delayed until after remand; AEDPA start date is after expiration of direct-review period. |
| Did remand for new judgment count as a non-ministerial remand affecting finality? | Remand was not ministerial, so finality did not attach until the remand-disposition was completed. | Remand could be ministerial; the court should treat the remand as terminating direct review sooner. | Remand was not purely ministerial; finality did not attach until after the 2009 direct-review period. |
| Did the Wyoming Rule 35(b) sentence reduction toll the AEDPA period under § 2244(d)(2)? | Rule 35(b) motion tolls as collateral review under Wall v. Kholi. | Rule 35(b) is not collateral review, or tolling should be limited. | Rule 35(b) tolls the AEDPA period under § 2244(d)(2). |
| Did the state post-conviction petition toll the AEDPA period consecutively? | State post-conviction petition tolls while pending; no extra tolling after denial for certiorari. | Tolling ends with final state-court denial; no automatic 90-day federal extension. | Consecutive tolling from August 2, 2010 through November 16, 2010; no extra 90-day extension afterward. |
| Is equitable tolling warranted for Najera’s untimeliness? | Equitable tolling due to extraordinary circumstances or lack of opportunity. | No response to motion to dismiss; no basis shown for tolling. | Equitable tolling not applicable; claims waived for lack of argument. |
Key Cases Cited
- Burton v. Stewart, 549 U.S. 147 (U.S. 2007) (final judgment is the sentence for AEDPA purposes)
- Carbajal-Moreno v. United States, 332 F. App’x 472 (10th Cir. 2009) (remand for resentencing can impact finality)
- Burch v. United States, 202 F.3d 1274 (10th Cir. 2000) (finality defined as decision from which no appeal or writ can be taken)
- Wall v. Kholi, 131 S. Ct. 1278 (S. Ct. 2011) (collateral review tolling includes sentence-reduction motions)
- Serrano v. Williams, 383 F.3d 1181 (10th Cir. 2004) (tolling during state-law appeal periods applies to AEDPA period)
- Rhine v. Boone, 182 F.3d 1153 (10th Cir. 1999) (post-conviction review timing not eligible for federal extension)