pr EFRAIN GONZALEZ , JR . v. United States of America

14‐1994‐pr
Gonzalez v. United States
In the
United States Court of Appeals
for the Second Circuit
A UGUST TERM 2014
No. 14‐1994‐pr
E FRAIN GONZALEZ , JR .,
Petitioner‐Appellant,
v.
U NITED S TATES OF AMERICA,
Respondent‐Appellee.
On Appeal from the United States District Court
for the Southern District of New York
SUBMITTED: JUNE 22, 2015
D ECIDED: JULY 2, 2015
Before: C ABRANES , POOLER , and C HIN, Circuit Judges.
This appeal presents an unsettled question regarding
restitution orders and the one‐year limitations period for a 28 U.S.C.
§ 2255 motion: Does the limitations period begin to run with an

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order affirming a conviction and sentence but remanding for
recalculation of restitution, or does it begin to run only after the
district court enters a revised restitution order on remand?
We hold that the limitations period begins to run only when
the revised restitution order becomes final. Accordingly, the May
19, 2014 order of the United States District Court for the Southern
District of New York (William H. Pauley III, Judge) is VACATED
and the cause is REMANDED for further proceedings consistent
with this opinion.
Efrain Gonzalez, Jr., pro se, Care of Federal
Correctional Institution, Fort Dix, NJ,
Petitioner‐Appellant.
Michael A. Levy, Assistant United States
Attorney, for Preet Bharara, United States
Attorney for the Southern District of New
York, New York, NY, Respondent‐Appellee.
PER C URIAM :
This appeal presents an unsettled question regarding
restitution orders and the one‐year limitations period for a 28 U.S.C.
§ 2255 motion: Does the limitations period begin to run with an
order affirming a conviction and sentence but remanding for

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recalculation of restitution, or does it begin to run only after the
district court enters a revised restitution order on remand?
We hold that the limitations period begins to run only when
the revised restitution order becomes final. Accordingly, the May
19, 2014 order of the United States District Court for the Southern
District of New York (William H. Pauley III, Judge) is VACATED
and the cause is REMANDED for further proceedings consistent
with this opinion.
BACKGROUND
Pro se appellant Efrain Gonzalez, Jr. is a former New York
State senator who represented a district in the Bronx. He also served
on the board of the West Bronx Neighborhood Association
(“WBNA”), a Bronx charity. Gonzalez was accused of using WBNA
funds for his personal use, including vacations, rent, jewelry, and
baseball tickets. On May 8, 2009, Gonzalez pleaded guilty to two
counts of fraud and two conspiracy counts. On May 25, 2010, the
District Court sentenced him principally to seven years’
imprisonment and ordered restitution, with the exact amount to be
determined at a later date by the District Court. Gonzalez filed a
timely notice of appeal on June 2, 2010. After receiving further
submissions from the parties on the restitution question, the District
Court, on August 23, 2010, entered a separate order directing
Gonzalez to pay $122,775 in restitution to WBNA’s donors.

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On August 27, 2010, Gonzalez amended his notice of appeal to
challenge the restitution order entered four days earlier. We
affirmed the conviction and sentence, but vacated the restitution
order.1 We determined that the restitution amount of $122,775
overstated the losses to WBNA’s donors because the donors had
received some value for their donations, and we remanded the cause
so that the District Court could determine the true extent of the
victims’ losses and order restitution in that revised amount.2 Our
decision was issued on July 22, 2011 (the “July 2011 Decision”).
Gonzalez did not seek a writ of certiorari.
On remand, the parties agreed to a 25 percent discount to
account for the benefits WBNA’s donors received. On March 6,
2013, the District Court entered a revised order requiring Gonzalez
to pay $92,081.25 in restitution (the “March 2013 Order”). He did
not appeal that order. Instead, on September 4, 2013, Gonzalez filed
a § 2255 motion asserting that the Government had threatened a
witness to prevent him from testifying for Gonzalez. The District
Court dismissed the § 2255 motion as time barred under the one‐
year limitations period set out in the Antiterrorism and Effective
Death Penalty Act of 1996 (“AEDPA”), codified at 28 U.S.C.
§ 2255(f). Specifically, the District Court rejected Gonzalez’s
argument that the AEDPA limitations period began after the March
2013 Order—when the District Court’s revised restitution order was
1 United States v. Gonzalez, 647 F.3d 41, 43‐44 (2d Cir. 2011).
2 Id. at 65‐67.

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entered—and instead held that it started to run on October 20, 2011,
90 days3 after the July 2011 Decision, when this Court affirmed his
conviction.
This appeal followed. We granted a certificate of
appealability on the issue of “whether the district court erred in
determining that [Gonzalez’s] 28 U.S.C. § 2255 motion was untimely
where it was filed within one year of the revised restitution order
entered in March 2013.”
DISCUSSION
We consider de novo questions arising under AEDPA’s
requirement that a § 2255 motion be filed within one year of “the
date on which the judgment of conviction becomes final.”4
If the AEDPA clock started to run when this Court affirmed
the conviction and the non‐restitution aspects of the sentence in the
July 2011 Decision, then Gonzalez’s § 2255 motion of September 4,
2013 would be time barred. Where a defendant does not seek
Supreme Court review, a conviction becomes final when the time to
seek such review expires, 90 days from the order affirming the
3 See Clay v. United States, 537 U.S. 522, 525 (2003) (“[A] judgment of
conviction becomes final when the time expires for filing a petition for
certiorari contesting the appellate courtʹs affirmation of the conviction.”);
Sup. Ct. R. 13(1) (establishing ninety‐day period for filing petition for writ
of certiorari).
4 28 U.S.C. § 2255(f)(1); see Scanio v. United States, 37 F.3d 858, 859‐
860 (2d Cir. 1994).

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conviction.5 Here, the time to seek a writ of certiorari expired on
October 20, 2011, 90 days after the July 2011 Decision. If Gonzalez’s
conviction became final then—as the District Court held—the
AEDPA limitations period ended on October 22, 2012 and his § 2255
motion filed in September 2013 was untimely.
Gonzalez urges us to conclude that the AEDPA limitations
period began to run only with the March 2013 Order. More
precisely, under this position, the limitations period began to run on
March 20, 2013, when the time for Gonzalez to file a direct appeal of
the revised restitution order expired.6 We agree for three reasons.
I. Amended Judgments
First, where a criminal judgment is vacated and remanded for
substantive proceedings, the amended judgment is attackable in
habeas proceedings. This posture often arises in the context of
successive habeas petitions or motions.7 In Magwood v. Patterson the
5 Clay, 537 U.S. at 524‐25.
6 See Moshier v. United States, 402 F.3d 116, 118 (2d Cir. 2005) (“[A]n
unappealed federal criminal judgment becomes final when the time for
filing a direct appeal expires.”); Fed. R. App. P. 4(b)(1) (absent cross‐
appeal, criminal defendant has 14 days to appeal from “the entry of either
the judgment or the order being appealed.”).
7 Once a 28 U.S.C. § 2254 petition or § 2255 motion is decided on the
merits, AEDPA places restrictions on the filing of additional petitions or
motions attacking the same conviction, i.e., second or successive petitions
or motions. That is, unless a habeas petitioner or movant relies upon a
new rule of constitutional law made retroactive by the Supreme Court or

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District Court conditionally granted a 28 U.S.C. § 2254 petition and
ordered that the petitioner be released or re‐sentenced by the state
authorities.8 After re‐sentencing by the state trial court, the
petitioner filed a second § 2254 petition challenging the new
sentence.9 The Supreme Court held that the second petition was not
a second or “successive” petition within the meaning of AEDPA
because the petitioner was challenging a new judgment.10 We have
applied Magwood to hold that a § 2255 motion challenging an
amended judgment of conviction of a federal trial court—entered
after a previous § 2255 motion was granted and the prior judgment
of conviction was vacated—did not constitute a successive § 2255
motion because the second § 2255 motion challenged a new
judgment.11
newly discovered evidence of actual innocence, “[n]o circuit or district
judge shall be required to entertain an application for a writ of habeas
corpus to inquire into the detention of a person pursuant to a judgment of
a court of the United States if it appears that the legality of such detention
has been determined by a judge or court of the United States on a prior
application for a writ of habeas corpus.” 28 U.S.C. § 2244(a), (b)(2); see also
id. § 2255(h) (listing exceptions to successive restrictions).
8 561 U.S. 320 (2010).
9 Id. at 323.
10 Id. at 323‐24.
11 See Johnson v. United States, 623 F.3d 41, 44‐46 (2d Cir. 2010);
Marmolejos v. United States, __ F.3d __, 2015 WL 3499660, at *4 (2d Cir. June
4, 2015) (“Magwood and Johnson . . . stand for the principle that when a
judgment is entered on account of new substantive proceedings involving

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8
Other circuits have applied this rule in the context of AEDPA
time limitations. In United States v. Colvin, the Ninth Circuit vacated
one count of a conviction on direct appeal and remanded with
instructions that the District Court strike that count and reduce the
special assessment.12 The defendant’s § 2255 motion was filed
within one year of that revised judgment of the federal trial court,
but more than two years after the Ninth Circuit’s order affirming in
part and vacating in part the original judgment. The Ninth Circuit
held that the AEDPA clock began to run with the revised judgment,
and the § 2255 motion was therefore timely. The Court of Appeals
reasoned that criminal proceedings in a district court are not
complete until the availability of a direct appeal is exhausted, and, in
the case before them, a direct appeal could have been taken from the
revised judgment.13 Similarly, in United States v. Dodson, the Fourth
Circuit held that the AEDPA clock began to run after the District
Court on remand held a hearing and re‐sentenced the defendant.14
The Dodson panel, however, noted that a remand for merely
reconsideration of either the defendant’s guilt or his appropriate
punishment, it is a new judgment for purposes of AEDPA.”); see also
Urinyi v. United States, 607 F.3d 318, 321 (2d Cir. 2010) (holding, pre‐
Magwood, that where a first § 2255 motion was granted so movant could
file a direct appeal, the second § 2255 motion was not a successive motion
under AEDPA).
12 204 F.3d 1221, 1222 (9th Cir. 2000).
13 Id. at 1224‐26.
14 291 F.3d 268, 274‐76 (4th Cir. 2002).

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ministerial purposes would not have rendered the original judgment
of conviction non‐final.
We applied a similar rule in Burwell v. United States. 15 There,
we held that where one count of conviction was vacated but the life
sentence remained intact, and the District Court was faced on
remand with only the ministerial task of entering a judgment
without the vacated count, for purposes of the AEDPA limitations
period the conviction had become final with the original judgment.16
Importantly, we distinguished between cases where a “remand was
strictly ministerial in that it required a routine, nondiscretionary act
by the district court that could not have been appealed on any valid
ground,” and cases where “our mandate left the district court the
authority on remand to entertain the new arguments [defendant]
advanced.”17
The rule drawn from cases such as Dodson and Burwell is this:
Where a conviction is vacated and the cause is remanded for
substantive proceedings, the new judgment is subject to renewed
collateral attack under AEDPA. In contrast, where a trial court has
only the ministerial task of entering a new judgment, the original
judgment is the relevant judgment for habeas purposes.
15 467 F.3d 160 (2d Cir. 2006).
16 Id. at 165‐67.
17 Id. at 161.

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Applying that rule here, the finality of the March 2013
Order—not that of the July 2011 Decision—started the AEDPA
clock. Restitution is a serious component of criminal punishment,18
and calculating the restitution amount is hardly ministerial.
Allowing a judgment to be final for AEDPA purposes—while the
restitution amount remains wholly uncertain—runs counter to the
explicit differentiation between substantive and ministerial
proceedings articulated in these cases. In the instant case, the
District Court was required to re‐calculate the restitution order—
rather than merely enter a new judgment—following substantive
communication between the parties and between the parties and the
Court.19 Indeed, the District Court eventually entered the revised
restitution order—which cut the restitution amount by over
$30,000—only after the parties had agreed to a 25 percent discount.
II. Finality
Second, a review of the law of finality in the context of
restitution orders compels the conclusion that Gonzalez’s conviction
was not final for AEDPA purposes until the March 2013 Order.
“Finality is variously defined; like many legal terms, its precise
meaning depends on context.”20 For purposes of a direct criminal
18 See Pasquantino v. United States, 544 U.S. 349, 365 (2005) (“The
purpose of awarding restitution . . . is . . . to mete out appropriate
criminal punishment for . . . conduct.”).
19 Gonzalez, 647 F.3d at 66‐67.
20 Clay, 537 U.S. at 527.

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appeal, “a federal judgment becomes final for appellate review and
claim preclusion purposes when the district court disassociates itself
from the case, leaving nothing to be done at the court of first
instance save execution of the judgment.”21
A criminal judgment containing a restitution order is a final
judgment for the purposes of a direct appeal.22 It is less clear
whether a criminal judgment that imposes restitution but leaves the
amount to be determined constitutes a final judgment, even for
purposes of direct appeal. The Supreme Court, in Dolan v. United
States, expressly declined to decide the question. 23 However, the
Court noted that it “makes sense” to allow immediate appeal of a
judgment of conviction that does not impose restitution; the
defendant would be free to appeal the restitution order separately
and the two appeals (if they are concurrent) can be, and often are,
consolidated.24
21 Id.; see also Deal v. United States, 508 U.S. 129, 132 (1993) (“A
judgment of conviction includes both the adjudication of guilt and the
sentence.”).
22 See, e.g., United States v. Certified Envtl. Serv., Inc., 753 F.3d 72, 99‐
102 (2d Cir. 2014) (reviewing restitution order as part of appeal from a
criminal judgment); see also 18 U.S.C. § 3664(o) (“A sentence that imposes
an order of restitution is a final judgment.”).
23 560 U.S. 605, 618 (2010).
24 Id. at 617‐18.

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The Supreme Court’s decision in Corey v. United States s upports
the conclusion that while the initial judgment is sufficiently final for
appeal, an appeal could also be pursued following entry of the
restitution order.25 Indeed, the Eleventh Circuit, in United States v.
Muzio, relied on Corey to hold that a judgment imposing a sentence
without setting restitution is sufficiently final as to be immediately
appealable, but an appeal also could be taken following entry of the
subsequent restitution order.26
In essence, Corey and Muzio allow defendants two
opportunities to appeal: from an initial sentence, even if some
aspects of the sentence are not final; and from the final order
disposing of the case in the district court. The same rule should
apply here. Gonzalez could have filed a § 2255 motion after the July
2011 Decision affirming his conviction and the non‐restitution
aspects of the sentence. However, he was also free to await the
conclusion of the criminal proceedings—after the March 2013
Order—before deciding whether to file a § 2255 motion and
deciding what claims to include in the motion.
25 375 U.S. 169, 174‐75 (1963) (holding that where district court
committed defendant to custody but held off on imposing final sentence,
defendant could have appealed from initial imposition, but the appeal
following final order imposing full sentence was also timely).
26 757 F.3d 1243, 1249‐50 (11th Cir. 2014).

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III. The Nature of Section 2255 Proceedings
Third, the nature of § 2255 proceedings further supports the
conclusion that Gonzalez’s criminal judgment was not final for
§ 2255 purposes until the District Court revised the restitution
amount. Despite the Government’s argument to the contrary,
Gonzalez could have challenged the revised restitution order in a
§ 2255 motion. In Kaminski v. United States, we held that a § 2255
motion may not attack the non‐custodial aspects of a sentence. 27
However, Kaminski notes that “we have not as yet foreclosed the
possibility that a restitution order might entail a sufficiently severe
restraint on liberty, not shared by the public at large, as to amount to
a form of custody.”28 Kaminski limits any § 2255 challenge to
restitution orders to circumstances where the restitution order
amounts to a severe restraint on liberty. While that will likely be a
rare situation, it cannot be known whether restitution will constrain
a defendant’s liberty until the restitution amount and terms are set.
Accordingly, where restitution is unsettled at the time of the Court
of Appeals decision to remand, a defendant may wait until a final
restitution order is entered by the District Court (including the
conclusion of any direct appeal of the revised amount) before filing a
§ 2255 motion.
It bears underscoring that our ruling that the AEDPA
limitations period does not start until after the completion of
27 339 F.3d 84, 87‐89 (2d Cir. 2003).
28 Id. at 87.

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substantive proceedings on remand does not preclude a movant
from filing a § 2255 motion before a final restitution order is entered.
Although we discourage “piecemeal” § 2255 litigation, and have
expressed a preference for the submission of a single § 2255
motion,29 the rule against considering a § 2255 motion while a direct
appeal is pending (an analogous situation) is not a jurisdictional bar.
“Any concern over such a practice is one of judicial economy and
the concern that the results on direct appeal may make the district
court’s efforts on the § 2255 motion a nullity.”30 Further, the fact that
AEDPA discourages the filing of more than one § 2255 motion
through the restrictions placed on second or successive motions, 28
U.S.C. § 2255(h), supports the conclusion that all challenges to a
conviction and sentence can also be brought in a single § 2255
motion—after the final restitution order is entered.
If this were not the rule, situations could arise where
defendants could not collaterally attack an order of restitution that
severely restrained their liberty. For example, if Gonzalez had filed a
§ 2255 motion attacking only his conviction and sentence of
imprisonment, and then two years later, the District Court imposed
restitution that amounted to a “severe restraint on liberty” such that
it could be challenged in a § 2255 motion, see Kaminski, 339 F.3d at
29 Ching v. United States, 298 F.3d 174, 179 (2d Cir. 2002) (“Courts
are not obliged to entertain needless or piecemeal litigation; nor should
they adjudicate a motion or petition whose purpose is to vex, harass or
delay.”).
30 United States v. Outen, 286 F.3d 622, 632 (2d Cir. 2002).

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87, he may have had no recourse beyond direct appeal (which may
not have been sufficient if the restitution order was tainted by
ineffective assistance, Government misconduct, or other error that
cannot be challenged on direct appeal).31
IV. Remaining Arguments
The Government argues that starting the AEDPA clock only
when the revised restitution order becomes final undermines the
finality of convictions and will cause confusion among litigants.
While the concerns are noted, they are not, in our view, supported
by the reality of the process. We have identified only 22 cases (other
31 Theoretically, the existence of the new restitution order may have
saved any second § 2255 motion attacking that order from being deemed
“successive.” See Johnson, 623 F.3d at 44‐46 (second § 2255 motion
challenging revised judgment was not successive). Gonzalez also might
have had the option of filing a 28 U.S.C. § 2241 petition if his collateral
attack on the restitution order dealt with the execution of the order, rather
than its imposition. Adams v. United States, 372 F.3d 132, 135 (2d Cir. 2004)
(“Section 2241 . . . is the proper means to challenge the execution of a
sentence.”). Further, dicta from Kaminski suggests that he could have used
a coram nobis petition, under the terms of the All Writs Act, 28 U.S.C. §
1651(a), as a collateral attack on the revised restitution order. 339 F.3d at
89‐91. These options—coupled with a rule that even though a potentially
significant part of a defendant’s punishment (i.e., the restitution amount)
is still unsettled, the conviction is final and the habeas clock has begun
ticking—might be confusing to a pro se litigant. The bright‐line rule we
now establish—that the litigant may wait until the substantive
proceedings are completed in the district court before collaterally
attacking his conviction—better serves pro se litigants while adhering to
AEDPA’s temporal restrictions on § 2255 motions.

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than the instant case) dating from 2005 until the present in which
this Court has vacated a restitution order but left the conviction
wholly or largely undisturbed.32 We decided more than 5,000
criminal appeals over roughly the same period.33 Thus, only in a
very small number of cases will the timing of a § 2255 motion
possibly be affected by a vacated restitution order.
32 See United States v. Lundquist, 731 F.3d 124 (2d Cir. 2013) vacated
134 S. Ct. 1940 (2014) (mem.); United States v. Vilar, 729 F.3d 62 (2d Cir.
2013); United States v. Desnoyers, 708 F.3d 378 (2d Cir. 2013); United States v.
Lacey, 699 F.3d 710 (2d Cir. 2012); United States v. Archer, 671 F.3d 149 (2d
Cir. 2011); United States v. Bengis, 631 F.3d 33 (2d Cir. 2011); United States v.
Leonard, 529 F.3d 83 (2d Cir. 2008); United States v. Klein, 476 F.3d 111 (2d
Cir. 2007); United States v. Reifler, 446 F.3d 65 (2d Cir. 2006); see also United
States v. Monfort, __F. App’x __, 2015 WL 1294926 (2d Cir. March 24, 2015);
United States v. Clark, 593 F. App’x 53 (2d Cir. 2014); United States v.
Lochard, 555 F. App’x 94 (2d Cir. 2014); United States v. Wee, 513 F. App’x
28 (2d Cir. 2013); United States v. Schwamborn, 467 F. App’x 35 (2d Cir.
2012); United States v. Archer, 432 F. App’x 43 (2d Cir. 2011); United States v.
Drayer, 364 F. App’x 716 (2d Cir. 2010); United States v. Mammedov, 304 F.
App’x 922 (2d Cir. 2008); United States v. Rammelkamp, 270 F. App’x 35 (2d
Cir. 2008); United States v. Rodriguez, 260 F. App’x 414 (2d Cir. 2008);
United States v. McIntyre, 207 F. App’x 71 (2d Cir. 2006); United States v.
Lisa, 152 F. App’x 85 (2d Cir. 2005); United States v. Fleischer, 120 F. App’x
865 (2d Cir. 2005).
33 This number is taken from the Administrative Office of the U.S.
Courts, which issues yearly reports on judicial caseloads. The reports are
available on the U.S. Courts web site at
http://www.uscourts.gov/statistics‐reports/analysis‐reports/federal‐court‐
management‐statistics.

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The Government draws to our attention a single example of
post‐vacatur restitution proceedings dragging on for a number of
years.34 However, the Mandatory Victims Restitution Act (the
statute regulating the imposition of restitution) provides that
restitution proceedings should take place within 90 days of the
judgment.35 The vast majority of the time, then, restitution will have
been decided before a direct appeal is concluded. It should thus be
the rare circumstance where the restitution proceedings outlive the
appeal.
CONCLUSION
To summarize: We hold that (1) a conviction is not final for
AEDPA purposes as long as substantive restitution proceedings are
ongoing; (2) where this Court vacates a restitution order and
remands for further proceedings to recalculate the restitution
amount, the AEDPA clock does not start to run until the restitution
order becomes final; and (3) a litigant may wait—but is not required
to wait—until the substantive proceedings are completed before
collaterally attacking his conviction.
34 Appellee’s Br. at 20 (citing United States v. Catoggio, 698 F.3d 64
(2d Cir. 2012), where restitution was initially imposed in 2001, vacated,
and the appeal from the revised restitution order was not decided until
2012).
35 18 U.S.C. § 3664(d)(5).

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For the reasons set forth above, we VACATE the District
Court’s May 19, 2014, order and REMAND for further proceedings
consistent with this opinion.

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