826 F.3d 843
5th Cir.2016Background
- Wheaten pleaded guilty to aiding and abetting possession with intent to distribute cocaine base and was sentenced to 132 months; the Fifth Circuit affirmed on March 14, 2012.
- The 90–day certiorari deadline expired on June 12, 2012; counsel sought an extension which the Supreme Court denied on June 7, 2012.
- Counsel nevertheless filed a certiorari petition on July 5, 2012, which the Supreme Court docketed (noting untimeliness) and denied without comment on October 1, 2012.
- Wheaten filed a § 2255 motion on or after September 10, 2013; the Government moved to dismiss as time‑barred under AEDPA’s one‑year limitation from the date the conviction became final.
- The district court dismissed the § 2255 motion as untimely, denied equitable tolling, but granted a certificate of appealability on the timeliness question; the Fifth Circuit affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| When did conviction become final for § 2255(f)(1)? | Wheaten: final when Supreme Court denied his certiorari petition (Oct. 1, 2012), because the Court docketed and considered it. | Government: final when the certiorari filing period expired (June 12, 2012); an untimely, summarily denied petition does not restart finality. | Held: Finality occurred on June 12, 2012; summary denial of an untimely certiorari petition without indication of excusing lateness does not reset AEDPA clock. |
| Does dictum in United States v. Redd control here? | Wheaten relied on Fifth Circuit footnote suggesting denial of certiorari starts the limitations period. | Government: Redd’s footnote was dicta and not binding. | Held: Redd’s footnote is dicta and not binding; persuasive only to the extent applicable, but not controlling. |
| Is denial of an untimely certiorari petition equivalent to reopening direct review (as in Jimenez)? | Wheaten: docketing and denial by the Court indicates it considered and thus reopened review. | Government: Jimenez involved an actual state‑court reopening; an unexplained denial of an untimely certiorari petition is not a reopening. | Held: Distinguishing Jimenez; reopening requires the court actually to excuse untimeliness or otherwise reopen review—summary denial without indication does not reopen finality. |
| Is equitable tolling warranted based on counsel conduct or clerk misadvice? | Wheaten: appellate counsel’s neglect/abandonment and incorrect statement from Supreme Court Clerk justify tolling. | Government: counsel’s actions were not abandonment; Wheaten was informed and had time to file; clerk’s alleged misstatement is not extraordinary. | Held: Denial of equitable tolling affirmed—counsel’s conduct was ordinary neglect, not abandonment, and the alleged clerk misadvice was not an extraordinary circumstance nor prevented timely filing. |
Key Cases Cited
- Clay v. United States, 537 U.S. 522 (Supreme Court 2003) (finality for § 2255 runs from the expiration of the certiorari filing period or denial of certiorari on the merits)
- Jimenez v. Quarterman, 555 U.S. 113 (Supreme Court 2009) (state court’s actual reopening of direct review restores pendency and delays finality)
- Pace v. DiGuglielmo, 544 U.S. 408 (Supreme Court 2005) (untimely state filings are not "properly filed" for tolling purposes)
- Holland v. Florida, 560 U.S. 631 (Supreme Court 2010) (equitable tolling available only for rare and extraordinary circumstances with diligence)
- United States v. Redd, 562 F.3d 309 (5th Cir. 2009) (footnote suggesting denial of certiorari can start limitations period; treated as dicta here)
- United States v. Petty, 530 F.3d 361 (5th Cir. 2008) (clerk misadvice did not justify equitable tolling where petitioner had other information and could have ascertained correct deadline)
- Catchings v. Fisher, 815 F.3d 207 (5th Cir. 2016) (untimely certiorari petition denied without comment does not delay AEDPA limitations start)
- United States v. Buckles, 647 F.3d 883 (9th Cir. 2011) (refusing to treat routine unexplained denial of untimely criminal certiorari petition as forgiveness of lateness that restarts § 2255 clock)