Submitted June 22, 2015
On Appeal from the United States District Court for the Southern District of New York.
Efrain Gonzalez, Jr., Petitioner-Appellant, Pro se, Fort Dix, NJ.
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.
Before: CABRANES, POOLER, and CHIN, 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 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.
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.
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. 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. 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 entered--and instead held that it started to run on October 20, 2011, 90 days 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 ...