United States v. Ronald "Boo" Colvin

showing that the tax threshold low the determinations, in its factual court erred

AFFIRMED America,

UNITED STATES

Plaintiff-Appellee, COLVIN, “Boo” Defendant-

Ronald

Appellant.

No. 99-35269. Appeals, States Court

United

Ninth Circuit. Nov.

Argued Submitted

Filed March Associates, Mendel,

Allison Mendel & Alaska, defendant-ap- Anchorage, pellant. Collins,

Stephan A. Assistant United Alaska, for Attorney, Anchorage, States plaintiff-appellee. RYMER, Before: and HAWKINS conviction on count 9 and to reduce the McKEOWN, Judges. Circuit special assessment to $200.00 *2. Id. at $150.00.” HAKWINS;

Opinion by Judge Dissent by Judge RYMER. 29, 1997, July Our mandate was issued and was received the district court Au- HAWKINS, Judge: 4, gust after, 1997. Soon We must when “judgment decide mandate, notified parties of the stating purposes becomes final” for that it did appear further proceedings the statute of limitations under 28 U.S.C. necessary given were speci- the mandate’s § 22551 partially where this court ficity, offering but parties opportu- an and reverses conviction and re- nity why to show an cause amended mands the district court with instruc- tions to amend judgment. ment should not be entered. Colvin filed a below held that the of conviction response, arguing that the court had dis- becomes final either when the district cretion to resentence him as a result of the court receives this court’s mandate or reversal of count 9. He pointed out that passed the date has for appealing 9, with the conviction on count he fell at this court’s decision to the top range for a base offense disagree and hold the traditional 34, conviction, level of while without the view that a becomes final when fell near the range bottom of the for that the time has for appealing the dis- offense level. The district court consid- trict entry judgment, in this ered, ultimately rejected, but argu- case amended ment, finding that it had no un- der mandate to rethink the sentence.

Facts and Background Procedural It then amended Colvin’s judgement of 27, 1995, April On Ronald “Boo” Colvin conviction, striking count 9 and reducing convicted was of one count conspiracy special assessment from $200 $150. (counts distribute cocaine and three counts The amended was filed October 9) 2, 8, and of aiding abetting in the 16, 1997. distribution of cocaine. He was sentenced to 162 in prison months and ordered to pay 5, 1998, On October Colvin filed sec- special assessment of On direct $200.00. petition tion 2255 alleging ineffective assis- appeal, we affirmed Colvin’s conspiracy tance of counsel at prosecutorial trial and conviction and two of his three convictions government misconduct. The moved for aiding abetting, but reversed ground dismissal on the that the conviction on count 9. See United States v. petition was time-barred under the Anti- Colvin, 95-30132, No. 1997 WL 66181 terrorism Penalty and Effective Death Act 1997) Cir. June (unpublished disposi § 28 U.S.C. which tion). requires We also affirmed Colvin’s sentence petitions that habeas be filed within because one his base offense level remained unchanged. year of We then “the date on which remanded to district court “with directions to strike the conviction becomes final.” provides part: Section 2255 prevented making was by a motion such action; governmental 1-year period A apply of limitation shall (3) right the date on which the asserted a motion under this section. The limitation initially recognized by period shall run from the latest of— Court, right if that newly recognized has been (1) the date on which the of con- retroactively Court and made final; viction becomes applicable review; to cases on collateral (2) the date impediment on which the (4) the date on supporting which the facts making a by governmental motion created presented claim or claims could have action in violation of the Constitution or laws through been discovered the exercise of due removed, of the United States is diligence. if the movant section comparing of con- conclusion that his argued by federal governs petitions until October filed become final which viction inmates, gov- with 28 which 16, 1997, on which the U.S.C. the date petitions. entered. The district state inmates’ Section erns argument, holding that the limitations rejected not be judg- of the amended run from “the date on which the the became used as the final conclusion ment became the of nothing to the mandate left because the time expiration final direct review or for of In- added), court. (emphasis the revieiu” seeking such ruled, stead, the the court only that the while section 2255 states the final when conviction became either to run “the date on period 4,1997 or August received on becomes which the of conviction passed appealing for the date when Because 2255 final.” section does Court, Supreme the which “expiration seeking time for mention the 15, 1997. Because Colvin September review,” the court reasoned Con- such petition until October not file intended for the limitations gress than one after either year 1998—more upon appellate the issuance of the begin granted government’s court the date —the mandate, at the defen- court’s least where summary dismissal. motion for petition for a writ of certio- dant does at 674.2 rari. See id. appeal a filed notice opposite The Third Circuit reached appealability, a certificate of requested Kapral 166 review v. United issued. We conclusion which (3d Cir.1999). interpretation interpreted the 565 It de novo F.3d Frega, v. See United States to mean on direct of a statute. word “final” a decision (9th Cir.1999). n. 6 802 179 F.3d or writ of review “from which no And can be taken.” Id. at 570. error Analysis decision is appellate because that the the court held one-year 2255 that the Section corpus judgment of conviction does not become. limitations habeas statute of for a begin Supreme to run “the date Court acts on petitions shall final until until the judgment of conviction be- a writ of petition on which the for The stat- petition final.” 28 U.S.C. 2255. has 90-day period filing comes for such does not define when pointed ute id. at The court See “final,” and the issue conviction becomes its is consistent out that circuit. The impression first one of term use of the with the Court’s Third, Seventh, Tenth Circuits id. retroactivity context. See “final” context, on the matter a related ruled Kentucky, 479 (citing v. at 571-73 Griffith conclu- they conflicting but have reached L.Ed.2d 649 107 S.Ct. sions. (1987)). interpreta- its It also noted that to exhaust would allow defendants .the tion States, 154 F.3d In v. United Gendron turning direct before possibility of (7th Cir.1998), the Seventh attacks. See their attention collateral to file if a defendant chooses not held that recently at 570. The Tenth Circuit certiorari, judg- id. a writ of for petition approach Third adopted the Circuit’s final when the of conviction becomes ment Burch, States issues mandate affirm- United its (10th Cir.2000). the conviction. The court reached ing case is or until the Court’s resolution 2. The court decide upon by becomes in a case where courts. It acted the lower of conviction petitions certiorari. for a writ of logic the defendant is final defy to hold that a however, Presumably, would hold the court pending the Su- appeal is before while an does final until not become that the preme Court. petition denies the Court either None of these three decisions dealt and we think it clear that a judgment long cannot be considered final as precise as with issue before us. each may appeal defendant either the conviction of those court had or sentence.3 affirmed the defendant’s conviction and question and the was whether however, disagree, govern- with the period began the limitations to run before ment’s assertion Colvin could not have or after the time appealed the amended ment. The case, government bases this claim In this we af on its conclusion that our mandate did not convictions, firmed three of Colvin’s but leave the district court to reversed a fourth conviction and remanded problem decide. The with this reasoning, to the district court with instructions to though, is that it ques- answers judgment. amend the question, The by presupposing tion ap- merits of an therefore, is what effect our remand to the peal scope on the of the district court’s district 'court had on the of Colvin’s fact, on remand. our remand judgment of conviction. orders, even phrased categorical, in government The at argu- conceded oral terms, sometimes do leave matters ment that in the usual ease of a reversal for the district court to decide. And be- remand, and judgment of conviction cause it’s often not at clear the time a would not become final until after the dis- mandate is issued whether that mandate trict court had acted on the court, leaves open for the district court’s mandate. This is because the dis- say we cannot that the district court’s trict court’s decision on remand would be judgment amended appealable. not subject appeal. government least, The argues very At the Colvin could ap- have different, however, pealed that this case is the district court’s be- determination of whether the mandate left it cause we discretion. affirmed Colvin’s sentence and all but one of his convictions and remanded just appeal We allowed such an in Ngu- only to the district court purpose yen v. United 792 F.2d 1500 modifying judgment. government Cir.1986). The In Nguyen, we had remanded argues that the district court’s task was to the specific district court with instruc- strictly ministerial that tions to judgment and Colvin could enter in favor government. remand, of the appealed not On the district court’s the dis- entry trict grant court did not summary judg- Therefore, of the amended it ment in government, favor of the but in- maintains, of conviction be- plaintiff stead allowed the to amend his final, latest, came at the when the time complaint to add two new claims. The this court’s decision granted district court then summary judg- to the ment in favor plaintiff of the on those agree We government with the that claims, government and appealed, ar- key inquiry is whether guing that the district court had acted court’s of the outside the scope of our mandate. We not could have been appealed. government’s heard the appeal, but Court has defined a final in ruled that our earlier mandate did not retroactivity context as one where the preclude the district court from consider- “availability appeal [has been] exhaust ing plaintiffs amendments. See id. at ed,” Griffith, 6, 107 at 321 n. S.Ct. 1502-03.4 32(d)(1) 3. Federal Rule of Criminal Procedure considering ernment the amendments. before that a of conviction must “entry We found summary judgment that adjudication guilt include both the and the might have affected the court’s decision to sentence. grant leave to Nguyen, amend.” See finding at 1503. But this does not undermine 4. We did hold that the district court erred establishes, point Nguyen that which is granting summary judgment gov- to the of limitations as to when the statute Nguyen impor is Our cases, and leave for First, to run those it makes clear respects. in two tant pre- issue day another our decision interpretation that a district Gendron, Kapral, and Burch. meaning that sented subject is mandate holding is limited to those cases the amended Our appealed could have Colvin Second, wholly it demon re- case.5 which we either sentence, whether a conviction or question of verse a defendant’s strates both, to act on re to the dis- remand district court has always as clear as In those mand is not trict court. court decided and the statute of

seem. The district does not become run, to rethink it lacked discretion until the begin -case that limitations does not that determination Colvin’s court has entered an amended been correct. We may may not have appealing judgment and the time for only that point not decide.6 Our need has clear, rule easy-to-follow think this We challenge and beyond was not with the Court’s is consistent appeal. that it finality in also definition of Griffith. judgment, but the amended advantages. think it offers several distinct reason, judg have. And for that First, that the determination of it ensures not become ment of conviction did final will not turn whether a appealing the until the time for our mandate on an assessment of whether had court. open to the district leaves matters speculate A will not have to today not af defendant does Our conclusion affects the our mandate affirm the about whether which we fect those cases If reverse of in its conviction and sentence judgment of any portion of a defendant’s expressly not remand entirety and do court, to the district sentence and remand express opinion no court. We the district reconsidering determined may appeal court's court from party a district thát a court, district it 'leaves to the interpretation of a mandate. in the expressly impliedly any court issue not course, " the district 5. Of at disposed appeal.' of on only a mandate is of Doon, 731 F.2d (quoting Stevens v. Bonnie F/V partially wholly reversed the deci- we have 1984)). We then found expressly remanded the below and have sion though specifically in the mandate that even sug- The dissent the district court. case to to enter structed logically apply even gests that our rule would government, judgment in favor of below we affirm the decision in cases where possibility of "expressly address the every at entirety, case there is in its since in amendment, of a there indication nor was spreading purpose of a remand for the least Id. at deny intent to amendment....” clear at 1227. But the mandate. See Dissent concluded, Therefore, 1503. completely, the district we affirm cases where from con preclude the court district to act outside court never has discretion sidering amendments. duty. which we In cases in its ministerial however, remand, reverse and case, our mandate instructed In Colvin's does have discretion court sometimes on the conviction court to "strike the district perform than ministerial functions. special assessment reduce the count 9 and to Therefore, appeals it makes sense allow Col- We also affirmed $200 $150.” legitimate there be those since striking we found vin’s sentence because disagreement dis- about what of- affect his base would not the conviction trict court retains. expressly or But we did "not fense level. prohibit court from impliedly” the district however, note, Nguyen casts We do light of our rethinking sentence in Colvin's conclusion that doubt on the dissent's some And, as Colvin count 9. to strike have discretion to court did not the district of that count could argues, the absence remand. Colvin’s sentence on rethink original sen- district court's influenced the “although the mandate Nguyen, we stated that tence. forecloses the lower of RYMER, Judge, dissenting: a defendant will know that the conviction does not become final until the Because this court affirmed all that was district court has acted on remand and the left of Colvin’s case—his conviction on time has the district 2 and counts 8 as well as sentence on these counts'—and our mandate left noth- court’s action. ing for the but perform district court to do Second, bright-line our rule will serve to of erasing the ministerial task the convic- finality question litigation avoid over the tion on count I that the judg- believe purposes and to achieve one of the of a final, ment of conviction became at the limitations, clearly statute which is to latest, petitioning when the time for define the time in which suit must United States Court for a writ of expired. certiorari be commenced. sure, For we reversed Colvin’s convic- Third, our will rule allow defendants to tion on count 9. But we both the affirmed appeals exhaust their on direct review be- adjudication guilt and the sentence on fore bringing collateral attacks. Under Therefore, counts and 8. Colvin could government’s approach, a defendant by petition- have undone his sentence required speculate

would be about the ing for a writ deci- scope of our order mandate in to deter- sion—which he did not do. The fact that mine his judgment whether of conviction he asked district court remand to final. And if the defendant were un- light reconsider his our re- sentence versal of the conviction on count 9 should sure whether his matter, could not pursue would have to direct relief and possibly have we had already done so since habeas relief at the same time. This not affirmed the sentence. Nor should it mat- unduly burden some defen- any party always anything ter that can ask dants, but would run counter to our hold- of the district court on remand: Henman, 1318, ing Feldman v. F.2d 815 case, thing conceivable that Colvin (9th Cir.1987), 1320-21 that a district court request would amount to another lacks a entertain habeas cor- way saying that his sentence should not pus petition pending. while direct review is have been affirmed on but rather approach Our problem by pro- avoids this should have been vacated and the matter viding a clear judg- indication of when a However, resentencing. remanded for rule, ment becomes final. our Under a otherwise, decided and the district court defendant will have no doubt when the power had no to “rethink” or reverse our judgment becomes final and will be able to Only decision. Court can do coordinate his direct that. appeals and collateral accordingly. It is well-settled that the mandate of an “ appellate court controlling ‘is as to mat- Because Colvin’s of conviction ” ters within compass.’ Nguyen its v. become final until the time (9th States, 1500, United 792 F.2d 1502 of Cir.1986) Quern Jordan, (quoting v. 440 judgment, we conclude that the 18, 347 n. 99 S.Ct. 59 district court in dismissing erred his habe- (1979)). Indeed, L.Ed.2d 358 it forecloses corpus petition. as The dismissal is there- reconsidering mat-

fore REVERSED and the case is RE- ters determined court. Id. MANDED. at 1502.1 Since our mandate affirmed the majority's Nguyen 1. The pleadings reliance on leave to amend the to add a differ- proposition party may (always) appeal theory something explicitly that a ent that had not — Here, course, appeal. district court's aof mandate been ruled on Col- on, misplaced in that explicitly the district court there vin's sentence been ruled plaintiffs was asked on remand for and affirmed.

1227 sentence, reversed, could not be reex or majority’s sentence reversed. The (anymore (that on remand than the con amined view the district court’s interpreta- be). See, e.g., United States victions could always tion of the mandate is appealable) (9th Scrivner, 189 F.3d 828 v. Cir. logically require the same rule to be 1999) (decision appeal “is bind on direct cases, applied in all including those where v. ing”); Odom United judg- entire (when (9th Cir.1972) issue 160 conviction, ment of since in every case on review “the decided direct there is a remand at purpose least for the final” became and the matter decided can spreading I mandate. So far as am motion). § litigated again not be on a aware, no suggested one has doubt, be Lest there should measured from the man- be time a explicit: affirm “We Colvin’s sentence spread. to affirm is filed and As a court with di- and remand to the district practical matter that is what the judgment on count 9 rections to strike conviction did in this case. There is no special and to reduce the assessment from crafting basis for a different rule simply Given that the man- $200.00 $150.00.” because the district court was directed to date affirmed there can Colvin’s perform striking the ministerial task of question “rethinking” be no the sen- judg- conviction on one count from the tence was foreclosed and Colvin’s ment. adjudicated fully ment of conviction was when we rendered our decision without it, Thus as I regardless see of the fact having granted. been that we “partially” reversed Colvin’s con- respect stricken,

In this be an unusual ordering viction one count case, for typically more we reverse affirmed his conviction and sentence on sentence, partially other remaining counts. This necessar- wise, retrial, we remand resentencing ily means that the of conviction or both. In such where there is an became final Colvin’s case no later than impliedly “issue [that has] 17, 1997, September when the time for disposed appeal,” Nguyen, of on [been] seeking Court (quoting F.2d at 1502 Bon Stevens F/V 13(1). would, elapsed. See Rule I S.Ct. Doon, nie F.2d accordingly, hold that Colvin’s 2255 mo- 1984)), of conviction will not tion, year which was filed than a become final until an amended is later, properly is time-barred and was dis- entered and missed. is exhausted.2 majority extends this rule for issues that an appellate are covered man- that Although to ones are. there is a

certain value in making the rule for the usual bright case a line rule for each “partially”

case where this court “partially” reverses a conviction and

remands, I agree apposite cannot is

here. Section 2255 focuses on when the

judgment becomes not on whether it affirmed, partially affirmed and circumstance, Washington, United.States v. 172 F.3d 1116 held that our mandate There, 1999), good example. is a allowed the district court discretion on re- vacated the then remanded with put together sentencing pack- mand to a new guideline range directions to recalculate the age. But the mandate in this case left no particular considering without cross-refer such room. accordingly.” ence and to “resentence

Case Details

Case Name: United States v. Ronald "Boo" Colvin

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Mar 1, 2000

Citation: 204 F.3d 1221

Docket Number: 99-35269

Court Abbreviation: 9th Cir.