United States v. 2005-10-25 | 03-35853 | USA VLAFROMBOISE | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 UNITED STATES OF AMERICA, No. 03-35853
Plaintiff-Appellee, D.C. Nos.
v. CV-99-00080-BLG/
 JDSDEAN LAFROMBOISE, CR-94-0082-JDSDefendant-Appellant.
OPINION

Appeal from the United States District Court
for the District of Montana
Jack D. Shanstrom, District Judge, Presiding
Argued and Submitted
July 14, 2005—Seattle, Washington
Filed October 26, 2005
Before: A. Wallace Tashima, Richard A. Paez, and
Consuelo M. Callahan, Circuit Judges.
Opinion by Judge Paez;
Dissent by Judge Callahan
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COUNSEL
Wendy Holton, Helena, Montana, for the appellant.
William W. Mercer, Billings, Montana, and John A. Drennan,
Washington, DC, for the appellee.
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OPINION
PAEZ, Circuit Judge:
Dean LaFromboise appeals the district court’s order deny-
ing his motion for habeas relief under 28 U.S.C. § 2255.
LaFromboise challenges his conviction and sentence on sev-
eral grounds, including ineffective assistance of counsel, pro-
secutorial misconduct, misjoinder of charges, and improper
application of the sentencing guidelines. The district court did
not reach the merits of LaFromboise’s collateral attack, and
instead denied the motion as untimely under the one-year stat-
ute of limitations established by the Antiterrorism and Effec-
tive Death Penalty Act of 1996 (“AEDPA”), Pub.L.No. 104-
132, 110 Stat. 124. See 28 U.S.C. § 2255 (“§ 2255”). Because
the district court’s judgment in the underlying criminal pro-
ceedings is not yet final, however, we vacate the order deny-
ing LaFromboise’s § 2255 motion and remand with directions
to dismiss the motion without prejudice.
I.
A jury convicted LaFromboise of five counts related to his
involvement in a narcotics trafficking scheme, including con-
spiracy to distribute and possession with intent to distribute
controlled substances in violation of 21 U.S.C. §§ 841(a)(1)
and 846, and 18 U.S.C. § 2. The jury also convicted him of
three counts of using or carrying a firearm in relation to a
drug trafficking offense, in violation of 18 U.S.C. § 924(c)(1).
The district court sentenced LaFromboise to 720 months in
prison (360 months for the conspiracy and possession counts
and a consecutive 360 months for the firearms counts), five
years supervised release, and $400 in mandatory assessment
penalties. The district court entered its judgment of conviction
on August 31, 1995.
LaFromboise appealed his convictions to this court, and on
January 10, 1997, we vacated each of his three 18 U.S.C.
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§ 924 firearms convictions. United States v. Ehrlich, No. 95-
30258, 1997 WL 14426, at *7 (9th Cir. Jan. 10, 1997) (mem.).1
We remanded the case for retrial of those three charges.2
Upon remand, the district court scheduled a retrial for the
three § 924 gun counts. The government, however, moved to
dismiss the charges as part of an immunity agreement in
return for LaFromboise’s testimony in another case. The dis-
trict court granted that motion and dismissed the firearms
counts on August 22, 1997. The district court, however, nei-
ther conducted a new sentencing hearing on the counts we
affirmed, nor entered an amended judgment reflecting
LaFromboise’s conviction and sentence in light of the dis-
missed counts. Thus, the only judgment of conviction of
record still provides for the original 720-month sentence and
still includes convictions on each firearm count.
LaFromboise filed his § 2255 motion for habeas relief on
June 28, 1999.3 Citing United States v. Garcia, 210 F.3d
1On direct review, we held that the jury instructions used in LaFrom-
boise’s trial were invalid under Bailey v. United States, 516 U.S. 137
(1995), “which changed the interpretation of the word ‘use’ for purposes
of Section 924.” Ehrlich, 1997 WL 14426, at *5. We noted that LaFrom-
boise’s jury “may have relied on mere storage or proximity of the weap-
on[,]” id., rather than Bailey’s “active employment” requirement that the
firearm must be “an operative factor in relation to the predicate offense.”
Bailey, 516 U.S. at 142.
2 Our mandate to the district court read, in relevant part, as fol-
lows: The Court also AFFIRMS the conspiracy convictions of
appellants Cozzens and LaFromboise and the “supervisory”
enhancement for Cozzens. Finally, the Court VACATES the Sec-
tion 924 gun convictions for appellants LaFromboise and Coz-
zens and REMANDS the case for retrial as to those convictions.
Ehrlich, 1997 WL 14426, at *7. Implicit in our directive was the need for
resentencing following retrial.
3LaFromboise’s post-conviction filings in the district court were com-
plex and confusing. He filed at least two motions for habeas relief under
28 U.S.C. § 2241, which the court construed as properly filed pursuant to
§ 2255 on March 1, 2000. That order was later vacated in light of United
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1058, 1059 (9th Cir. 2000), the district court concluded that
his convictions became final on April 10, 1997—90 days after
our January 10, 1997, decision when the time for filing a peti-
tion for writ of certiorari to the Supreme Court expired. The
court found that LaFromboise’s § 2255 motion was therefore
filed too late to comply with the one-year April 10, 1998,
deadline. LaFromboise also argued that the statute of limita-
tions should be equitably tolled because he did not have ade-
quate access to “a full law library.” The district court rejected
this argument because the government’s unrebutted evidence
showed that LaFromboise had access to both the prison law
library and Title 28 of the United States Code while he was
in segregation at the United States Prison in Florence, Colo-
rado, as well as in state custody. Accordingly, the district
court denied LaFromboise’s motion as untimely under
AEDPA’s one-year statute of limitations.
II.
We have jurisdiction over LaFromboise’s appeal pursuant
to 28 U.S.C. §§ 1291 and 2253. We review de novo the dis-
trict court’s denial of habeas relief under § 2255. United
States v. Zuno-Arce, 339 F.3d 886, 888 (9th Cir. 2003). We
review de novo the district court’s determination that the
motion was untimely. United States v. Valdez, 195 F.3d 544,
546 (9th Cir. 1999), overruled on other grounds by Dodd v.
United States, 125 S. Ct. 2478, 2482 (2005).
III.
[1] Under AEDPA, federal prisoners are typically required
States v. Miller, 197 F.3d 644 (3d Cir. 1999), and Adams v. United States,
155 F.3d 582 (2d Cir. 1998), to prevent prejudice resulting from AEDPA’s
bar against second or successive habeas motions. LaFromboise’s June 28,
1999, motion was therefore his first and only petition for habeas relief
filed under 28 U.S.C. § 2255.
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to file a motion for habeas relief within one year from “the
date on which the judgment of conviction becomes final.” 28
U.S.C. § 2255. As the Supreme Court has explained, “[b]y
‘final,’ we mean a case in which a judgment of conviction has
been rendered, the availability of appeal exhausted, and the
time for a petition for certiorari elapsed or a petition for cer-
tiorari finally denied.” Griffith v. Kentucky, 479 U.S. 314, 321
n.6 (1987) (applying this definition to determine retroactivity
of a criminal procedural rule). Moreover, “[a]pplied in the
context of a criminal prosecution, finality is normally defined
by the imposition of the sentence.” Flynt v. Ohio, 451 U.S.
619, 620 (1981) (per curiam); see also Teague v. Lane, 489
U.S. 288, 314 n.2 (1989) (“[A] criminal judgment necessarily
includes the sentence imposed upon the defendant.”). We are
asked to determine the date on which LaFromboise’s convic-
tion became final without the benefit of an amended judgment
of conviction.4 Without that amended judgment, we hold,
LaFromboise’s conviction is not yet final and the one-year
limitation period has not begun to run.
Our holding here finds strong support in United States v.
Colvin, where we answered a very similar question. 204 F.3d
1221 (9th Cir. 2000). Colvin, who had been convicted of four
counts of conspiracy to distribute and aiding and abetting in
the distribution of cocaine, successfully appealed one of his
four convictions. Id. at 1222. We affirmed Colvin’s sentence,
however, “because his base offense level remained
unchanged.” Id. We remanded to the district court on July 29,
1997, “with directions to strike the conviction on count 9 and
to reduce the special assessment from $200.00 to $150.00.”
Id. On October 16, 1997, the district court amended the judg-
4A judgment of conviction is defined by Federal Rule of Criminal Pro-
cedure 32(k) as “the plea, the jury verdict or the court’s findings, the adju-
dication, and the sentence.” As the Fourth Circuit has noted, “only a single
‘judgment of conviction’ arises from a case, like this one, in which a
defendant is convicted at one trial on multiple counts of an indictment.”
United States v. Dodson, 291 F.3d 268, 272 (4th Cir. 2002).
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ment in accordance with our mandate, finding that it had no
authority to resentence. Id.
[2] Less than one year later, on October 5, 1998, Colvin
filed a § 2255 motion for habeas relief alleging ineffective
assistance of trial counsel and prosecutorial misconduct. Id.
The government argued that the motion was time barred and
that Colvin’s conviction became final no later than September
15, 1997, when the time passed for appealing our decision on
direct review to the Supreme Court, because our mandate “left
nothing to the discretion of the district court.” Id. at 1223. We
handily rejected that argument in favor of a “clear, easy-to-
follow rule[:]” In “cases in which we either partially or
wholly reverse a defendant’s conviction or sentence, or both,
and expressly remand to the district court . . . , the judgment
does not become final, and the [§ 2255] statute of limitations
does not begin to run, until the district court has entered an
amended judgment and the time for appealing that judgment
has passed.” Id. at 1225. We noted that “in the usual case of
a reversal and remand, the judgment of conviction would not
become final until after the district court had acted on the
appellate court’s mandate.” Id. at 1224.
Other circuits have similarly held that a judgment of con-
viction is not final for § 2255 purposes until both the convic-
tion and sentence are final. See, e.g., United States v. Dodson,
291 F.3d 268, 272 (4th Cir. 2002). In Dodson, the Fourth Cir-
cuit vacated one of the defendant’s five convictions and
remanded for resentencing “so that the district court could, if
it wished, take into account [the court’s] vacatur of the con-
viction and sentence . . . when reimposing sentence” on the
remaining counts. Id. at 270. The defendant appealed follow-
ing resentencing, and the Fourth Circuit affirmed the new sen-
tence. Id. Evaluating the timeliness of the defendant’s
subsequent § 2255 motion, the court concluded that the one-
year clock began to run after the amended judgment became
final, when the Fourth Circuit issued its mandate affirming the
new sentence. Id. at 276. A contrary rule would result in
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“multiple rounds of habeas review” as defendants would be
forced to collaterally attack their convictions before the dis-
trict court had reconsidered the sentence, and then later file a
separate motion challenging the sentence.5 Id. at 274-75. The
Second Circuit agreed with that logic in United States v.
Camacho, noting that habeas “is a mechanism through which
criminal defendants can challenge both their convictions and
sentences; it therefore makes sense, from an efficiency stand-
point, to require criminal defendants to file such motions only
after both their convictions and sentences have withstood
appellate scrutiny” following resentencing on remand. 370
F.3d 303, 307 (2d Cir. 2004).
[3] The “key inquiry” under Colvin is whether an amended
judgment, assuming one had been entered, could have been
appealed—without presupposing the merits of the appeal. 204
F.3d at 1224; see also Dodson, 291 F.3d at 275-76. Our man-
date in the prior appeal clearly contemplated further trial court
proceedings; indeed, the invalidated convictions account for
half of LaFromboise’s sentence.6 Implicit in our mandate to
the district court was the opportunity for resentencing,
whether or not the remanded gun counts resulted in an even-
tual conviction. See United States v. Ruiz-Alvarez, 211 F.3d
1181, 1184 (9th Cir. 2000) (allowing the district court author-
5LaFromboise, for example, would be forced to file a § 2255 motion
before his sentence was determined on remand. Since his § 2255 motion
challenges both his convictions and his sentence, LaFromboise would be
forced either to file separate motions, or to challenge a sentence that does
not yet exist in its final form. Neither option makes sense. See, e.g., 28
U.S.C. § 2255 (prohibiting second or successive habeas motions unless
certified by the court); cf. Walker v. Crosby, 341 F.3d 1240, 1241 (11th
Cir. 2003) (holding that individual claims within a single habeas petition
under 28 U.S.C. § 2254 may not be reviewed separately for timeliness).
6In its original sentencing decision, the district court was bound by the
then-mandatory United States Sentencing Guidelines, which prescribed a
sentencing range of 292 to 365 months for LaFromboise’s drug convic-
tions. On resentencing, in light of United States v. Booker, ___ U.S. ___,
125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the district court would no longer
be bound by the Sentencing Guidelines.
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ity to resentence even where “the panel . . . did not explicitly
remand for resentencing”). As we stated in Ruiz-Alvarez,
[w]hen a defendant is sentenced on multiple counts
and one of them is later vacated on appeal, the sen-
tencing package comes ‘unbundled.’ The district
court then has the authority to put together a new
package reflecting its considered judgment as to the
punishment the defendant deserved for the crimes of
which he was still convicted.
Id. at 1184 (quotation marks omitted). That new sentence is
then subject to a direct challenge on appeal. See, e.g., United
States v. Streit, 17 F.3d 306, 308 (9th Cir. 1994) (per curiam)
(entertaining defendant’s challenge to resentencing following
remand by this court).
The district court therefore must resentence LaFromboise
and enter an amended judgment of conviction.7 We note that
our mandate in the prior appeal did not “expressly or implied-
ly” dispose of potential sentencing issues that could have
arisen after the entry of an amended judgment. See Colvin,
204 F.3d at 1225 n.6. Moreover, even if the district court had
7The government likens the resentencing owed LaFromboise to a Rule
35(a) correction to his sentence, which allows the district court to correct
errors in a sentence “that resulted from arithmetical, technical, or other
clear error” within seven days after sentencing. Fed. R. Crim. Pro. 35(a).
A Rule 35 correction does not change the date of finality of the judgment.
See 18 U.S.C. § 3582; United States v. Schwartz, 274 F.3d 1220, 1224 (9th
Cir. 2001). Thus, the government argues that an amended judgment would
not affect § 2255’s time limits. But LaFromboise is entitled to more than
a mere correction of his sentence. In light of his vacated convictions, the
district court may reweigh the sentencing factors and come to an indepen-
dent sentencing decision. See Ruiz-Alvarez, 211 F.3d at 1184. His 720-
month sentence resulted from an invalid conviction, not from an “arith-
metical [or] technical . . . error” in calculating his sentence correctable
under Rule 35, or from a clerical error “arising from oversight or omis-
sion” correctable under Rule 36. Fed. R. Crim. Pro. 35, 36. The rules per-
taining to clerical corrections have no application here.
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narrowly interpreted the mandate as authorizing only the entry
of a 360-month sentence, that decision itself is subject to
appeal. As Nguyen v. United States made clear, 792 F.2d
1500, 1502-03 (9th Cir. 1986), the district court’s interpreta-
tion of our mandate is subject to appeal, whether or not such
an appeal has merit. See Colvin, 304 F.3d 1224-25.
Our case differs slightly from Colvin in that no amended
judgment yet exists here.8 But that slight difference by no
means suggests that Colvin should not apply—quite the con-
trary. In Colvin, we specified that, following a partial reversal
and remand in this court, “the judgment of conviction does
not become final until the district court has acted on remand
and the time has passed for appealing the district court’s
action.” 204 F.3d at 1226 (emphasis added). The rationale
behind Colvin requires remand to the district court for entry
of an amended judgment, allowing LaFromboise an opportu-
nity to appeal that judgment by direct review should he so
choose. When that judgment is entered and the availability of
direct review expires, AEDPA’s one-year statute of limita-
tions will then begin to run.
Our holding here follows the Eleventh Circuit’s decision in
Maharaj v. Secretary for the Department of Corrections,
which noted that “[i]n the context of a federal habeas petition,
the statute of limitations runs from the date of state resentenc-
ing and not the date of the original judgment.” 304 F.3d 1345,
1348 (11th Cir. 2002) (per curiam) (reviewing a habeas peti-
tion brought under 28 U.S.C. § 2254) (citing Hepburn v.
8The district court’s order dismissing the § 924 firearms charges, on
August 22, 1997, has no effect on the issue before us. Indeed, the district
court expressly rejected the argument that LaFromboise’s conviction of
the drug charges became final upon dismissal of the firearms charges. As
the district court put it, “the finality of [LaFromboise’s] convictions which
were affirmed by the appellate court did not depend on the dismissal of
the § 924 conviction.” As the terms of the August 1997 dismissal order
make clear, that order was not a substitute for the requisite amended judg-
ment on the affirmed drug convictions.
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Moore, 215 F.3d 1208, 1209 (11th Cir. 2000) (per curiam));
see also Walker, 341 F.3d at 1246 (“[W]e measure the statute
of limitation from the date on which the resentencing judg-
ment became final . . . and not the date the original judgment
became final.”). Relying on our decision in Colvin, and over
Maharaj’s objection, the Eleventh Circuit concluded that
“[b]ecause Maharaj’s resentencing had not occurred at the
time he filed his habeas petition, his state judgment had not
become final, and thus his habeas petition . . . was not ripe for
review at that time.” Maharaj, 304 F.3d at 1349. The same
reasoning applies here.
[4] Until the district court enters an amended judgment of
conviction, LaFromboise’s § 2255 motion is in fact prema-
ture, rather than untimely. In Feldman v. Henman, we held
that federal prisoners must exhaust appellate review prior to
filing for habeas relief in the district court. 815 F.2d 1318,
1321 (9th Cir. 1987) . The district court “will not review a
section 2255 motion until the direct appeal is resolved.”
United States v. Pirro, 104 F.3d 297, 298 (9th Cir. 1997).
LaFromboise’s sentence on the counts of conviction, yet to be
determined by the district court, will be subject to direct
appeal. Streit, 17 F.3d at 308. Once the new judgment is
entered, he may or may not choose to appeal—but until direct
appellate review is exhausted the district court may not enter-
tain a motion for habeas relief.9 Feldman, 815 F.2d at 1320-
9There is some dispute whether this rule reflects a jurisdictional bar or
simply a prudential concern. Compare Feldman, 815 F.2d at 1323 (dis-
missing defendant’s premature habeas petition “because the district court
lacked subject matter jurisdiction to entertain [the] petition”) with Pirro,
104 F.3d at 299 (noting that this rule was created “for reasons of judicial
economy”) and Rules Governing § 2255 Proceedings for the United States
District Courts, Rule 5, Adv. Comm. Notes (“We are of the view that there
is no jurisdictional bar to the District Court’s entertaining a Section 2255
motion during the pendency of a direct appeal but that the orderly admin-
istration of criminal law precludes considering such a motion absent
extraordinary circumstances.”). We need not resolve this discrepancy,
however, because the district court should refrain from hearing LaFrom-
boise’s § 2255 motion until after he exhausts his direct appellate review
rights under either theory.
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21. The statute of limitations under § 2255 surely cannot lapse
before the district court has ever had the opportunity to hear
a defendant’s habeas claims.
[5] The district court’s determination that LaFromboise’s
§ 2255 motion was barred by AEDPA’s one-year statute of
limitations was erroneous. We conclude that the one-year
time bar will begin to run after the district court enters an
amended judgment and either the direct appeal has been
resolved or the time to appeal has passed. See Colvin, 204
F.3d at 1225. We need not review the district court’s decision
that the statute of limitations was not equitably tolled, because
we find that the statute of limitations has not begun to run.
[6] Accordingly, we VACATE the district court’s order and
REMAND with instructions to dismiss LaFromboise’s § 2255
motion without prejudice.10
CALLAHAN, Circuit Judge, dissenting:
I agree with the majority that LaFromboise’s conviction
and sentence must be final before the one-year limitation
period for filing a § 2255 motion begins to run. I also agree
that finality does not occur until the district court has acted on
our mandate and the time to appeal that action has passed.
The majority errs, however, when it holds that an amended
judgment is required to obtain finality in this case. Here, final-
ity was achieved when the district court acted on this court’s
mandate by dismissing the firearms charges, and the time
passed to appeal that order.
Colvin supports this conclusion. Colvin held that finality
was achieved in that case not when the time expired for filing
10In light of the procedural posture of this case, any subsequent § 2255
motion LaFromboise may file would not be a successive motion.
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a petition for writ of certiorari from our decision in his direct
appeal as urged by the government, but rather when the time
expired to appeal the amended judgment entered by the dis-
trict court. Colvin’s holding hinged on the finality of the pro-
ceedings, not on the fact that finality was achieved through an
amended judgment.
The purpose behind Colvin’s holding was to avoid a defen-
dant having to speculate about the effect of a mandate on the
finality of a judgment. 204 F.3d 1225. We explained that
when we reverse any portion of a conviction or sentence and
remand to the district court, the judgment of conviction does
not become final until the court has acted on remand and the
time has passed for appealing the district court’s action. Id. at
1225-26. In Colvin, this happened to be achieved by the entry
of an amended judgment. This is because the amended judg-
ment satisfied this court’s mandate directing the district court
to strike the conviction on a certain count and reduce the spe-
cial monetary assessment, and because the amended judgment
was not appealed. Likewise, finality was achieved for
LaFromboise on September 1, 1997, when the time expired to
appeal the district court’s order dismissing his firearms
charges.
While the term “judgment” contemplates finality, so too
does an order of dismissal. Nevertheless, the majority elevates
form over substance to conclude that an amended judgment is
required to obtain finality. Here, this court vacated LaFrom-
boise’s gun convictions and remanded the case to the district
court “for retrial as to those convictions.” The district court
set the matter for retrial but ultimately dismissed the charges
upon the government’s motion. The dismissal order signaled
finality because it left nothing for the district court to do. It
should not be disregarded because it was not styled as a judg-
ment.
I also disagree with the majority’s conclusion that LaFrom-
boise must be resentenced in this case. We held in Ruiz-
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Alvarez that the district court has the authority to resentence
a defendant upon remand when this court partially reverses a
conviction. 211 F.3d 1184. Ruiz-Alvarez, however, does not
require the district court to do so. Here, although the district
court could have resentenced LaFromboise consistent with
our mandate, the fact that it chose not to does not affect the
finality of LaFromboise’s conviction and sentence. The par-
ties did not move for resentencing, and there was no reason
for the district court to do so sua sponte. The firearms convic-
tions were vacated by this court, thereby voiding the 360
month sentence for these charges. The original judgment on
the drug charge remained undisturbed by our vacation, or by
the district court’s subsequent dismissal of the gun charges.
Because the one-year statute of limitation began to run for
LaFromboise on September 2, 1997, his § 2255 motion is
untimely unless LaFromboise can establish that he is entitled
to equitable tolling of the limitation period. The one-year stat-
ute of limitation was enacted in 1996 as part of the Antiterro-
rism and Effective Death Penalty Act (AEDPA), and was
codified at 28 U.S.C. § 2255. LaFromboise contends that the
statute of limitation should be tolled from April 23, 1997,
until December 2, 1998, while he was incarcerated at the Yel-
lowstone County Detention Center, because during that time
he was unaware of the newly-created limitation period and
because the law library did not provide him with a post-
AEDPA copy of 28 U.S.C. § 2255. He also argues that the
district court record is incomplete on this point and that a
remand therefore is required to develop the record.
LaFromboise is incorrect. The record contains evidence
that the detention center replaced LaFromboise’s water-
damaged legal books in June, 1998. The replacement books,
including an up-to-date copy of Title 28 of the United States
Code, were shipped to the detention center on June 11, 1998,
and, according to Lieutenant Neiter of the Yellowstone
County Sheriff’s Office, were received shortly thereafter. The
district court found that the books were replaced on approxi-
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mately June 15, 1998. LaFromboise does not challenge this
finding on appeal. Therefore, even if LaFromboise was enti-
tled to equitable tolling until he received the up-to-date copy
of Title 28 of the United States Code, his § 2255 motion was
still filed after the one-year statute of limitation expired.
Because LaFromboise’s conviction and sentence became
final on September 1, 1997, and because his § 2255 motion
was filed more than one year after June 15, 1998, LaFrom-
boise’s motion is untimely. I would affirm the district court’s
denial of LaFromboise’s motion as time-barred. Accordingly,
I respectfully DISSENT.
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