Torrence Gillis v. United States, 729 F.3d 641

Background

Torrence Gillis was convicted in 2007 of possession with intent to distribute crack and resentenced on December 10, 2009, to 191 months imprisonment after a prior remand.
Gillis’s attorney failed to timely file a direct appeal from the resentencing; a belated notice was filed in August 2010 and dismissed as untimely by this Court.
On May 20, 2011, Gillis filed a pro se § 2255 motion claiming ineffective assistance for not pursuing a timely appeal; the Government moved to dismiss as time-barred under AEDPA.
The district court dismissed the § 2255 motion on September 9, 2011, concluding the conviction became final December 26, 2009, and the § 2255 motion (filed May 2011) was beyond the one-year AEDPA period.
Gillis appealed the § 2255 denial on March 28, 2012 (201 days after the district order). The Sixth Circuit held the appeal timely because the district court had not entered a separate judgment under Fed. R. Civ. P. 58, giving Gillis a 210-day window to appeal under Fed. R. App. P. 4(a)(7).
On the merits of timeliness for the § 2255 filing, the Sixth Circuit affirmed the dismissal: Gillis’s § 2255 claim accrued when the time for direct appeal expired, and he offered no viable basis for statutory or equitable tolling.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Was Gillis’s appeal from denial of § 2255 timely?	Gillis appealed 201 days after district court order; argues appeal should be considered timely.	Government argued appeal was untimely under the normal 60-day rule.	Timely: absence of a separate Rule 58 judgment triggered App. R. 4(a)(7), giving 210 days to appeal.
Was Gillis’s § 2255 motion timely under AEDPA?	Gillis argued ineffective assistance due to counsel’s failure to timely file appeal; suggested limitation ran from dismissal of his late appeal.	Government argued § 2255 was filed after the one-year limitations period starting when conviction became final.	Not timely: conviction became final when the appeal period expired (Dec 26, 2009); § 2255 filed May 2011 was beyond one-year and dismissed.
Could the AEDPA limitations period start on dismissal of Gillis’s untimely appeal?	Gillis contended the one-year period should run from dismissal of his untimely appeal (Jan 25, 2011).	Government: finality is defined by expiration of direct appeal period, not by dismissal of a late appeal.	Rejected: statute runs from when direct appeal time expired; late appeal dismissal does not reset AEDPA clock.
Was equitable or factual tolling available to save Gillis’s § 2255?	Implied: counsel’s failings justify relief.	Government: no showing of due diligence or extraordinary circumstances; no factual showing presented.	Denied: Gillis made no equitable-tolling or § 2255(f)(4) factual-predicate showing; dismissal affirmed.

Key Cases Cited

United States v. Gillis, 592 F.3d 696 (6th Cir.) (prior direct-appeal decision reversing initial sentence)
Sanchez-Castellano v. United States, 358 F.3d 424 (6th Cir. 2004) (conviction becomes final when direct-appeal period expires)
Holland v. Florida, 130 S. Ct. 2549 (2010) (equitable tolling requires diligence and extraordinary circumstances)
United States v. Fiorelli, 337 F.3d 282 (3d Cir. 2003) (discussing application of Civ. R. 58 and App. R. 4 in habeas context)