United States v. Buckles
2011 U.S. App. LEXIS 11058
9th Cir.2011Background
- Buckles was convicted by district court of possession with intent to distribute methamphetamine and marijuana, both offenses under 21 U.S.C. § 841(a)(1).
- On direct appeal, the Ninth Circuit affirmed on February 12, 2007 and denied rehearing on April 3, 2007; the mandate issued April 11, 2007 and reissued June 20, 2007.
- Buckles sought Supreme Court review of the conviction; he lacked funds to retain counsel for certiorari and sought appointment of counsel under Ninth Circuit Rule 4-1(e).
- The Ninth Circuit recalled the mandate on June 12, 2007 to consider Buckles’s Rule 4-1(e) motion, but denied it and the mandate later reissued.
- The Supreme Court denied Buckles’s pro se petition for certiorari on October 15, 2007, with no stated merits disposition; Buckles then pursued a § 2255 motion in district court (filed October 13, 2008).
- The district court dismissed the § 2255 motion as untimely; the Ninth Circuit granted a COA limited to timeliness and remanded for potential equitable tolling arguments.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did recalling the mandate restart the 90-day cert. deadline? | Buckles argues recall restarted the deadline, making cert timely. | Buckles argues recall did not restart; deadline ran from denial of rehearing. | Recall did not restart the 90-day clock for certiorari. |
| Is Buckles's 2255 motion timely if certiorari was untimely? | If cert was timely, 2255 would be timely; if not, untimely. | Since cert was untimely, 2255 clock began July 2, 2007 and expired Oct 13, 2008. | § 2255 motion untimely unless equitable tolling applies. |
| Whether equitable tolling applies due to attorney misconduct or clerk misinformation. | Misconduct and misinformation could warrant tolling. | No tolling unless a causal link shown between misconduct and untimeliness. | Remand for factual development to determine if tolling applies based on alleged clerk misinfo. |
| Can misrepresentations by the court clerk or reliance on erroneous advice toll the AEDPA clock? | Misleading advice may justify tolling under Holland line of cases. | Holland concerns attorney conduct; clerk misinfo requires evidence of reliance and diligence. | Remand proper to develop record on reliance and diligence; tolling possible if proven. |
Key Cases Cited
- Clay v. United States, 537 U.S. 522 (Supreme Court, 2003) (defines finality for AEDPA timeline on direct review)
- Jimenez v. Quarterman, 555 U.S. 113 (Supreme Court, 2009) (finality same as Clay; cert. deadline governs AEDPA clock)
- Hibbs v. Winn, 542 U.S. 88 (Supreme Court, 2004) (cert. clock tolling when post-judgment actions)
- Wilkins v. United States, 441 U.S. 468 (Supreme Court, 1979) (ability to toll by vacating/re-entering judgment)
- Finn v. United States, 219 F.2d 894 (9th Cir., 1955) (authorities on recall of mandate and filing extensions)
- Bowles v. Russell, 551 U.S. 205 (Supreme Court, 2007) (nonjurisdictional nature of some AEDPA deadlines; some tolling permissible)
- Pace v. DiGuglielmo, 544 U.S. 408 (Supreme Court, 2005) (untimely petitions do not toll AEDPA unless equitable tolling applies)
- Randle v. Crawford, 604 F.3d 1047 (9th Cir., 2010) (untimeliness of notices of appeal and effect on § 2254/2255 timing)
- Holland v. Florida, 130 S. Ct. 2549 (Supreme Court, 2010) (equitable tolling due to attorney misconduct may apply; diligence required)
- Spitsyn v. Moore, 345 F.3d 796 (9th Cir., 2003) (definition of extraordinary circumstances for tolling)