Petition for Writ of Certiorari — Merl Simpson, Petitioner v. United States

Supreme Court briefSep 18, 2024

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No. ____________

IN THE

MERL SIMPSON,

Applicant/Petitioner,

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

ELIZABETH RICHARDSON-ROYER*

Attorney-at-Law

3739 Balboa Street, Suite 1095

San Francisco, California 94121

(510) 679-1105

beth@richardsonroyer.com

Attorney for Petitioner

*Counsel of Record

Appointed under the Criminal Justice

Act, 18 U.S.C. § 3006A(d)(7)

QUESTION PRESENTED

Where a criminal judgment is amended to impose restitution obligations that were

generically imposed but left undetermined in the original judgment, does the one-year

limitations period in 28 U.S.C. § 2255(f) run from the date of the amended judgment, as

the Second and Tenth Circuits have held, or the date of the original judgment, as the

Ninth Circuit alone has concluded?

TABLE OF CONTENTS

Page

QUESTION PRESENTED ................................................................................................ i

TABLE OF AUTHORITIES ........................................................................................... iii

PETITION FOR A WRIT OF CERTIORARI .................................................................... 1

JUDGMENT BELOW ...................................................................................................... 1

JURISDICTION .............................................................................................................. 1

STATUTORY PROVISION INVOLVED .......................................................................... 1

STATEMENT OF THE CASE .......................................................................................... 2

REASONS FOR GRANTING THE WRIT ........................................................................ 4

There exists a circuit split concerning whether, in a case where the

judgment is amended to specify the amount of restitution, the 1-year

limitations period in 28 U.S.C. § 2255(f) runs from the original or the

amended judgment. .................................................................................... 4

The Ninth Circuit’s rule, as set forth in Gilbert, is in tension with this

Court’s subsequent decision in Manrique. .................................................. 7

This case is an appropriate vehicle for this Court to resolve the circuit

split and bring the Ninth Circuit’s rule in line with its own precedent. ........ 8

CONCLUSION ................................................................................................................ 9

TABLE OF AUTHORITIES

Page(s)

Cases

Dolan v. United States,

560 U.S. 605 (2010) ...................................................................................... 10,11

Gonzalez v. United States,

792 F.3d 232 (2d Cir. 2015) ................................................................................. 8

Manrique v. United States,

581 U.S. 116 (2017) ..................................................................................... 8,9,10

United States v. Anthony,

25 F.4th 792 (10th Cir. 2022) ...................................................................... 8,9,11

United States v. Gilbert,

807 F.3d 1197 (9th Cir. 2015) ........................................................................ 7,8,9

Statutes

28 U.S.C. § 1254(1) ................................................................................................... 1

28 U.S.C. § 2255 ............................................................................................ 1, 3, 5-8

28 U.S.C. § 2255(f) ........................................................................................... 1, 4, 8

iii

PETITION FOR A WRIT OF CERTIORARI

Merl Simpson petitions this Court for a writ of certiorari to review the judgment of

the United States Court of Appeals for the Ninth Circuit.

JUDGMENT BELOW

The judgment for which review is sought is United States v. Simpson, No. 2116204 (9th Cir. Mar. 22, 2024). (Appendix (“App.”) 2-6.)

JURISDICTION

On March 22, 2024, the Ninth Circuit Court of Appeals issued an unpublished

decision affirming the district court’s denial of Petitioner’s motion pursuant to 28 U.S.C.

§ 2255 as untimely. (App. 2-6.) A timely petition for rehearing en banc was denied on

June 21, 2024. (App. 1.) This petition is being timely filed within 90 days of the date of

that June 21, 2024 order. The Court has jurisdiction pursuant to 28 U.S.C. § 1254(1).

STATUTORY PROVISION INVOLVED

28 U.S.C. § 2255(f)

A 1-year period of limitation shall apply to a motion under this section. The

limitation period shall run from the latest of-(1) the date on which the judgment of conviction becomes final;

(2) the date on which the impediment to making a motion created by

governmental action in violation of the Constitution or laws of the United States is

removed, if the movant was prevented from making a motion by such

governmental action;

(3) the date on which the right asserted was initially recognized by the

Supreme Court, if that right has been newly recognized by the Supreme Court and

made retroactively applicable to cases on collateral review; or

(4) the date on which the facts supporting the claim or claims presented

could have been discovered through the exercise of due diligence.

STATEMENT OF THE CASE

On January 13, 2017, Mr. Simpson pleaded guilty in the United States District

Court for the Northern District of California to the following offenses: conspiracy to

commit Hobbs Act robbery (Count 1), attempted Hobbs Act robbery (Count 2),

substantive Hobbs Act robbery (Counts 4, 6, 8), discharging a firearm during a crime of

violence (Count 9), and being a felon in possession (Count 10). (ER 95.) 1

On April 27, 2017, the district court sentenced Mr. Simpson to 120 months each

for Counts 1, 2, 3, 6, and 18, to be served concurrently, plus 120 months for Count Nine,

run consecutively, for a total of 240 months. (ER 89.) The court entered judgment on

May 3, 2017. (Id.) Mr. Simpson did not appeal. (See ER 120.)

On October 12, 2018, the district court entered an amended judgment. (ER 33-41.)

The term of imprisonment and length of the term of supervised release remained

“ER” stands for the “Excerpts of Record” that were submitted alongside the

opening brief before the Ninth Circuit.

unchanged, but the court imposed a new set of “standard” supervised release conditions.

(ER 90) The court also modified the restitution award, awarding restitution to two

additional victims. (ER 92.) There is no indication on the docket that Mr. Simpson was

personally served with the amended judgment. (ER 121.)

On August 6, 2018, Mr. Simpson filed a motion to vacate the judgment under 28

U.S.C. § 2255. (ER-42-81.) The district court denied the motion as untimely, rejecting

Mr. Simpson’s arguments for equitable tolling. (App. 13-15.) 2 The court also noted, in

footnote, that the original judgment had been amended in October 2018—after Mr.

Simpson filed his § 2255 motion. (App. 8 n.1.) However, the district court explained that

because “the amendment only corrected a clerical error, the original judgment date

controls for purposes of the one-year limitations period.” (Id.) Mr. Simpson appealed.

The Ninth Circuit affirmed the dismissal of Mr. Simpson’s § 2255 motion as

untimely. (App. 6.) With respect to the Mr. Simpson’s argument that the October 2018

amended judgment restarted the clock, the court explained:

This argument is foreclosed by our precedent in United

States v. Gilbert, 807 F.3d 1197 (9th Cir. 2015).

In Gilbert, we held that, when a judgment is issued that

defers restitution, “the one-year statute of limitations to file a

§ 2255 motion does not restart when the specific amount of

restitution is later entered.” Gilbert, 807 F.3d at 1201. We

reasoned that because a defendant “is not permitted to

challenge his restitution with a § 2255 motion, it would make

no sense to let him restart the statute of limitations under §

2255 from an amended judgment that addressed only the

specific amount of restitution.” Id. (citing United States v.

Mr. Simpson’s equitable tolling arguments are not at issue in this Petition.

Thiele, 314 F.3d 399, 401 (9th Cir. 2002); United States v.

Kramer, 195 F.3d 1129, 1130 (9th Cir. 1999)). That rationale

applies equally here, where the only substantive change in the

new judgment concerned restitution.

(App. 3-4.)

The court also declined to reconsider Gilbert in light of Manrique v. United States,

581 U.S. 116 (2017); in its view, Gilbert was “not clearly irreconcilable” with Manrique

because “each decision concerns different procedural mechanisms.” (App. 4.)

REASONS FOR GRANTING THE WRIT

There exists a circuit split concerning whether, in a case where the judgment

is amended to specify the amount of restitution, the 1-year limitations period

in 28 U.S.C. § 2255(f ) runs from the original or the amended judgment.

There exists a circuit split regarding whether amending a judgment to

impose restitution obligations that were generically imposed but left undetermined

in the original judgment should trigger the one-year limitations period in 28 U.S.C.

§ 2255(f). The Second and Tenth Circuits hold that the clock should run from when the

amended judgment is final, United States v. Anthony, 25 F.4th 792, 804 (10th Cir. 2022);

Gonzalez v. United States, 792 F.3d 232, 233 (2d Cir. 2015), while the Ninth Circuit

holds that it should run from the original judgment, United States v. Gilbert, 807 F.3d

1197, 1200-01 (9th Cir. 2015).

In the first of these cases, Gonzalez, the petitioner raised a substantive challenge to

his conviction in a § 2255 motion that would only be timely if the clock restarted with the

entry of an amended judgment only modifying the restitution award. The Second Circuit

held that the clock should restart for three reasons. First, the court pointed to an

analogous scenario: where a criminal judgment is vacated and remanded for substantive

proceedings, the new judgment may be appealed or challenged by way of § 2255. Id. at

235. Second, the Court found that the rules of finality required this outcome; a defendant

is entitled to appeal the initial judgment and the amended judgment, therefore he should

be able to challenge either judgment by way of § 2255, as well. Id. 236-37.3 Third, and

finally, the “nature of the § 2255 proceedings” supported the outcome, because in the

Second Circuit, the petitioner could have challenged the revised restitution order in a

§ 2255 motion. Id. at 237-38.

In Gilbert, the Ninth Circuit considered the scenario in which a district court

imposes judgment including restitution but leaves the restitution amount to be

determined at a later date. In these circumstances, the court held, the final order of

restitution does not restart the § 2255 clock. Gilbert, 807 F.3d at 1201. Noting the Second

Circuit’s contrary decision in Gonzalez, the Ninth Circuit distinguished that case in two

ways. First, the procedural posture was different, because Gonzalez involved a

modification of the restitution award post-remand from the appellate court, while in

Gilbert, there was no appeal and no remand. Id. at 1200-01. Second, the court found that

Gonzalez was distinguishable because the Second Circuit had left open the possibility that

defendants could challenge restitution by way of § 2255 motions, whereas in the Ninth

Circuit, they cannot do so. See Gilbert, 807 F.3d at 1201 (citing United States v. Thiele,

Gonzalez predated this Court’s decision in Manrique v. United States, 581 U.S.

116 (2017), discussed below, but the rule it describes is nonetheless consistent with the

rule announced in Manrique.

314 F.3d 399, 401 (9th Cir. 2002), and United States v. Kramer, 195 F.3d 1129, 1130

(9th Cir. 1999)). Accordingly, the Ninth Circuit explained:

Because Gilbert is not permitted to challenge his restitution

with a § 2255 motion, it would make no sense to let him

restart the statute of limitations under § 2255 from an

amended judgment that addressed only the specific amount of

restitution. We hold that when a judgment imposes a sentence

but leaves the amount of restitution to be determined, the oneyear statute of limitations to file a § 2255 motion does not

restart when the specific amount of restitution is later

entered.

807 F.3d at 1201.

Finally, in United States v. Anthony, 25 F.4th 792 (10th Cir. 2022), the Tenth

Circuit weighed in. But in Anthony, unlike in Gilbert or Gonzalez, the court had the

benefit of this Court’s decision in Manrique v. United States, 581 U.S. 116 (2017), which

held that a single notice of appeal from an initial judgment that defers the determination

of restitution does not “spring forward” to cover the later amended judgment that

includes the restitution amount. Id. at 124.

In adopting the Second Circuit’s approach in Gonzalez rather than the Ninth

Circuit’s approach in Gilbert, the Tenth Circuit held in Anthony that “a judgment of

conviction becomes final for § 2255 limitations purposes when there is no further avenue

for direct appeal of any portion of the sentence, including restitution.” Id. at 799; see also

id. at 804 n.15 (“We disagree with the Ninth Circuit’s conclusion [in Gilbert] and side

with the Second Circuit.”).

The court in Anthony held that, in deferred restitution cases, there are two

judgments for purposes of direct appeal, under Manrique, but there is only one “judgment

of conviction” for purposes of § 2255: the amended judgment containing the final

restitution amount. Id. at 801-02. For this reason, the court explained, “it does not matter

that restitution is not subject to collateral attack” in the Tenth Circuit, just as it is not

subject such attack in the Ninth Circuit. Id. at 802. “Because there is only one judgment

of conviction for § 2255 purposes and restitution is part of the judgment of conviction,”

the one-year clock only begins to run once restitution proceedings are concluded. Id.

In Anthony, the court cited to the Ninth Circuit’s decision in United States v.

Shehadeh, 962 F.3d 1096 (9th Cir. 2020), and the decisions of other circuits likewise

holding that a defendant in a deferred restitution case may wait until restitution is ordered

before filing an appeal. Id. at 803-04. The court concluded in Anthony, “If a defendant

can wait until after restitution is ordered to file his direct appeal, then it does not make

sense that a defendant’s § 2255 clock would start before a final restitution amount is

determined, as Gilbert holds.” Id. at 804 n.15.

This Court should grant Mr. Simpson’s Petition in order to resolve the circuit split

and clarify that the approach taken by the Second and Tenth Circuits is the correct one.

The Ninth Circuit’s rule, as set forth in Gilbert, is in tension with this

Court’s subsequent decision in Manrique.

After Gilbert was decided, this Court issued its opinion in Manrique, holding that a

single notice of appeal from an initial judgment that defers the determination of

restitution does not “spring forward” to cover the later amended judgment that includes

the restitution amount. 581 U.S. at 124. While acknowledging that Dolan v. United States,

560 U.S. 605 (2010), had not decided the question, this Court cited its analysis

approvingly: “Our analysis in Dolan thus makes clear that deferred restitution cases

involve two appealable judgments, not one.” Id. at 122-23.

The Ninth Circuit’s decision in Gilbert is in tension with Manrique, because it

holds that the non-restitution components of the initial judgment must be challenged by

collateral attack under § 2255 immediately after the initial judgment is issued, while

Manrique suggests that those very same non-restitution components of the judgment

may be challenged on direct appeal after an amended judgment is issued—even if the

amended judgment does not alter them. This Court “has consistently treated restitution

as part of the criminal sentence.” Anthony, 25 F.4th at 797.

This Court should grant Mr. Simpson’s petition to bring the Ninth Circuit’s rule in

line with this Court’s precedents.

This case is an appropriate vehicle for this Court to resolve the circuit split

and bring the Ninth Circuit’s rule in line with its own precedent.

This case is an appropriate vehicle through which this Court may resolve the

circuit split and clarify when the § 2255(f) limitations period begins to run where the

district court amends the judgment to include or modify a restitution amount.

In this case, Mr. Simpson’s § 2255 motion, filed August 8, 2018, is untimely if the

limitations period began with the issuance of the original judgment on May 3, 2017, but

timely if the limitations period ran from issuance of the October 12, 2018 amended

judgment. Accordingly, whether his motion is timely or untimely depends on the Court’s

resolution of the Question Presented.

Furthermore, the district court addressed the effect of the amended judgment in

its order of dismissal. The Ninth Circuit issued a certificate of appealability that included

the question of "whether an amendment to the judgment that increased the amount of

restitution constituted a new intervening judgment that restarted AEDPA's one-year

statute of limitations." Both parties addressed the merits of the question; there was no

allegation of procedural default. The Ninth Circuit issued a reasoned opinion. The issue is

preserved and properly presented for this Court's review.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

DATED: September 18, 2024

By:

ELIZABETH RICHARDSO - OYER

Attorney-at-Law*

Attorney for Petitioner

*Counsel of Record

APPENDIX

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FILED

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

No.

JUN 21 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

21-16204

D.C. No.

4:16-cr-00292-YGR-2

MERL SIMPSON,

ORDER

Defendant-Appellant.

Before: S. R. THOMAS, BEA, and CHRISTEN, Circuit Judges.

The panel has voted to deny the petition for rehearing en banc.

Judge Christen has voted to deny the petition for rehearing en banc, and Judges

Thomas and Bea have so recommended. The full court has been advised of the

petition for rehearing en banc and no judge has requested a vote on whether to

rehear the matter en banc. Fed. R. App. P. 35. The petition for rehearing en banc is

DENIED.

App. 1

Case: 21-16204, 03/22/2024, ID: 12871289, DktEntry: 45-1, Page 1 of 5

FILED

NOT FOR PUBLICATION

MAR 22 2024

UNITED STATES COURT OF APPEALS

MOLLY C. DWYER, CLERK

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

No.

U.S. COURT OF APPEALS

21-16204

D.C. No.

4:16-cr-00292-YGR-2

MERL SIMPSON,

MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of California

Yvonne Rogers, District Judge, Presiding

Argued and Submitted February 15, 2024

San Francisco, California

Before: S. R. THOMAS, BEA, and CHRISTEN, Circuit Judges.

Merl Simpson appeals the district court’s order denying his

28 U.S.C. § 2255 motion as time-barred. Because the parties are familiar with the

facts, we do not recount them here. We have jurisdiction under 28 U.S.C. §§ 1291,

2253(a), and 2255(d). We review de novo dismissals based on statutes of

limitations, including whether the statute of limitations should be equitably tolled.

This disposition is not appropriate for publication and is not precedent except as

provided by Ninth Circuit Rule 36-3.

App. 2

Case: 21-16204, 03/22/2024, ID: 12871289, DktEntry: 45-1, Page 2 of 5

See Smith v. Davis, 953 F.3d 582, 587 (9th Cir. 2020). We affirm.

1. A § 2255 motion under the Antiterrorism and Effective Death Penalty

Act is subject to a one-year statute of limitations period. See 28 U.S.C. § 2255(f).

Relevant here, that period begins to run from the date on which the judgment of

conviction becomes final. Id. Simpson filed his motion on August 6, 2018, but his

judgment was entered on May 3, 2017, and it became final on May 17, 2017.

Accordingly, his motion was untimely.

Simpson argues that his one-year limitations period restarted on October 12,

2018, when the district court entered a new judgment that increased his total

restitution amount and altered the wording, but not substance, of the default

mandatory and standard conditions of supervised release. This argument is

foreclosed by our precedent in United States v. Gilbert, 807 F.3d 1197 (9th Cir.

2015).

In Gilbert, we held that, when a judgment is issued that defers restitution,

“the one-year statute of limitations to file a § 2255 motion does not restart when

the specific amount of restitution is later entered.” Gilbert, 807 F.3d at 1201. We

reasoned that because a defendant “is not permitted to challenge his restitution

with a § 2255 motion, it would make no sense to let him restart the statute of

limitations under § 2255 from an amended judgment that addressed only the

specific amount of restitution.” Id. (citing United States v. Thiele, 314 F.3d 399,

App. 3

Case: 21-16204, 03/22/2024, ID: 12871289, DktEntry: 45-1, Page 3 of 5

401 (9th Cir. 2002); United States v. Kramer, 195 F.3d 1129, 1130 (9th Cir.

1999)). That rationale applies equally here, where the only substantive change in

the new judgment concerned restitution.

We decline Simpson’s request to reconsider Gilbert in light of Manrique v.

United States, 581 U.S. 116 (2017). In that case, the Supreme Court held that

“where a district court enters an initial judgment deferring restitution and

subsequently amends the judgment to include the sentence of restitution,” a

defendant must file a notice of appeal from the amended judgment. Manrique, 581

U.S. at 124. The reasoning in Gilbert is not “clearly irreconcilable” with the

reasoning in Manrique because each decision concerns different procedural

mechanisms. See Miller v. Gammie, 335 F.3d 889, 893 (9th Cir. 2003) (en banc).

The court in Gilbert reasoned that, because a movant cannot challenge a restitution

order in a § 2255 motion, the § 2255 limitations period does not restart with an

amended restitution order. See Gilbert, 807 F.3d at 1201. By contrast, the

Supreme Court in Manrique reasoned that, because a defendant can challenge a

restitution order on direct appeal, the period in which to file a notice of appeal

starts when the restitution amount has been decided, i.e., when the amended

judgment is issued in a deferred restitution case. See Manrique, 581 U.S. at 123–

24.

App. 4

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Finally, because Simpson did not appeal his conviction, the grounds for

restarting the limitations period identified in United States v. Colvin are not present

here. 204 F.3d 1221, 1225 (9th Cir. 2000) (limiting its holding “to those cases in

which we either partially or wholly reverse a defendant’s conviction or sentence, or

both, and expressly remand to the district court”).

2. “The statute of limitations contained in § 2255 is subject to equitable

tolling,” but only where “extraordinary circumstances beyond [the movant’s]

control [made] it impossible to file a petition on time and the extraordinary

circumstances were the cause of his untimeliness.” United States v. Battles, 362

F.3d 1195, 1197 (9th Cir. 2004) (quoting Laws v. Lamarque, 351 F.3d 919, 922

(9th Cir. 2003) (second alteration in original)). The movant bears the burden of

establishing that he is entitled to equitable tolling, Smith v. Duncan, 297 F.3d 809,

814 (9th Cir. 2002), overruled on other grounds, Pace v. DiGuglielmo, 544 U.S.

408 (2005), and must demonstrate “the necessary causal link” between the

extraordinary circumstance and the untimeliness of the § 2255 motion, United

States v. Buckles, 647 F.3d 883, 890 (9th Cir. 2011).

Simpson argues that his temporary transfer to Santa Rita County Jail in

March 2018 deprived him of access to his legal materials and thus constituted

“extraordinary circumstances” that prevented him from timely filing his § 2255

motion. Despite being afforded several opportunities to establish the dates of his

App. 5

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transfer to Santa Rita County Jail, however, Simpson failed to do so. Without

providing this information to the district court, Simpson could not meet his “very

high” burden, see Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1011 (9th Cir.

2009) (quoting Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir. 2002)), of

demonstrating that it was “impossible” to file his motion on time, see Battles, 362

F.3d at 1197. For the same reason, we conclude that an evidentiary hearing is not

warranted. Cf. Laws, 351 F.3d at 921 (evidentiary hearing appropriate when

movant makes a “good-faith allegation that would, if true, entitle him to equitable

tolling”). The type of additional support that Simpson contemplates might be

useful is the kind of information that could have been included in the two affidavits

he filed in the district court. Because Simpson does not meet the criteria for

equitable tolling, the district court properly denied his § 2255 motion as untimely.

AFFIRMED.

App. 6

Case 4:16-cr-00292-YGR Document 151 Filed 06/06/21 Page 1 of 9

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

UNITED STATES OF AMERICA,

Plaintiff,

United States District Court

Northern District of California

CASE NO. 4:16-cv-00292-YGR-2

ORDER DENYING MOTION UNDER

28 U.S.C. § 2255 TO VACATE

CONVICTIONS AND SENTENCE

Re: Dkt. No. 89

MERL SIMPSON,

Defendant.

Defendant Merl Simpson, who is proceeding without counsel, moves to vacate his

convictions and sentence under 28 U.S.C. § 2255. Having carefully considered the record and the

papers submitted, and for the reasons set forth below, the Court DENIES the motion as time-barred.

BACKGROUND

On June 30, 2016, Simpson was indicted on the following counts: one count of conspiracy

to commit Hobbs Act robbery in violation of 18 U.S.C. § 1951(a) (Count One); one count of

attempted Hobbs Act robbery in violation of 18 U.S.C. § 1951(a) (Count Two); one count of

possession of a firearm in furtherance of a crime of violence in violation of 18 U.S.C.

§ 924(c)(1)(A), with the predicate offense being attempted Hobbs Act robbery (Count Three);

three counts of Hobbs Act robbery in violation of 18 U.S.C. § 1951(a) (Count Four, Count Six,

Count Eight ); two counts of brandishing a firearm during a crime of violence in violation of 18

U.S.C. § 924(c)(1)(A), with the predicate offense being Hobbs Act robbery (Count Five, Count

Seven); discharging a firearm during a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A),

with the predicate offense being Hobbs Act robbery (Count Nine); and one count of felon in

possession of a firearm in violation of 18 U.S.C. § 922(g)(1) (Count Ten). Docket No. 1.

App. 7

Case 4:16-cr-00292-YGR Document 151 Filed 06/06/21 Page 2 of 9

On January 13, 2017, Simpson pleaded guilty, pursuant to a Rule 11(c) plea agreement, to

United States District Court

Northern District of California

Counts One, Two, Four, Six, Eight, Nine, and Ten of the Indictment. Docket Nos. 41, 43. The

plea agreement provides that Simpson waived his “right to appeal [his] conviction, the judgment,

and orders of the Court, as well as [his] sentence, including any orders relating to forfeiture and/or

restitution, except that [he] reserve[d] [his] right to claim that [his] counsel was ineffective.”

Docket No. 41 at 6. The plea agreement also provides that Simpson “agree[d] not to file any

collateral attack on [his] conviction or sentence, including a petition under 28 U.S.C. § 2255 or 28

U.S.C. § 2241, except that [he] reserve[d] [his] right to claim that [his] counsel was ineffective.”

Id.

On April 27, 2017, the Court sentenced Simpson to a total term of imprisonment of 240

months, comprised of 120 months as to each of Counts One, Two, Four, Six, Eight, and Ten to run

concurrently, and 120 months as to Count Nine to run consecutively to the other counts. Docket

No. 53. The Court dismissed Counts Three, Five, and Seven on the government’s motion. Id.

The Court entered judgment on May 3, 2017.1 Docket No. 57. Simpson did not file a notice of

appeal within fourteen days of the entry of the judgment.

On October 16, 2017, more than six months after the Court entered the judgment, Simpson

filed a letter with the Clerk requesting the transcripts of the plea and sentencing hearings in this

matter. Docket No. 77. Simpson stated in that letter that he intended to seek to vacate his

conviction on one count of discharging a firearm during a crime of violence in violation of 18

U.S.C. § 924(c)(1)(A) in light of the Supreme Court’s ruling in Johnson v. United States, 135 S.

Ct. 2551 (2015). Id. at 1-2.

The Court amended the judgment on October 12, 2018, due to a clerical error on page 8

of the original judgment. Docket No. 93. Because the amendment only corrected a clerical error,

the original judgment date controls for purposes of the one-year limitations period under 28 U.S.C.

§ 2255(f). See Brownlee v. Rommoro, 1:14-cv-01990-LJO-SAB HC, 2015 WL 1013154, at *4

(E.D. Cal. Mar. 6, 2015) (collecting cases, noting that the Ninth Circuit and several “other federal

courts have also held that an amended judgment that corrects a clerical error in the original

judgment does not begin the one-year limitations period anew”); United States v. Greer, 79 Fed.

App’x 974, 974-75 (9th Cir. 2003) (unpublished disposition) (“Because the amended judgment did

not substantively change the sentence imposed and added no new basis for appeal, it did not affect

the finality of the original judgment.”).

App. 8

Case 4:16-cr-00292-YGR Document 151 Filed 06/06/21 Page 3 of 9

On February 16, 2018, Simpson filed a second letter requesting the Clerk to provide him

with copies of the transcripts of the plea and sentencing hearings. Docket No. 81. In that letter,

Simpson acknowledged that the “one-year deadline to file a § 2255 will end in April 2018.” Id. at

United States District Court

Northern District of California

About six months later, on August 6, 2018, Simpson filed the present § 2255 motion.

Docket No. 89-2. There, Simpson seeks to vacate his convictions and sentence on the following

grounds: (1) that his conviction on one count of discharging a firearm during a crime of violence

in violation of 18 U.S.C. § 924(c)(1)(A) is invalid because Hobbs Act robbery is not categorically

a crime of violence in light of Johnson v. United States, 135 S. Ct. 2551 (2015) and Mathis v.

United States, 136 S. Ct. 2243 (2016), id. at 14-23; (2) that the collateral-attack waiver in his plea

agreement is not enforceable because his sentence is unconstitutional, id. at 22-23; (3) that his

guilty plea is invalid because his trial counsel rendered ineffective assistance by failing to object to

certain guidelines calculations and enhancements, id. at 23-28; (4) that his conviction on one count

of discharging a firearm during a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A) is

invalid because his counsel rendered ineffective assistance by failing to explain the “nature” of

this count, by allowing Simpson to enter into an “unknowing and unintelligent plea” with respect

to this count, and by failing to file a notice of appeal as to this count, id. at 7-8; (5) that the Court

erred in imposing a sentence relating to a crime to which he did not stipulate, id. at 32-38; and (6)

that the Court failed to apply a reduction to his sentence under “Amendment 794” in light of

Simpson’s role as the getaway driver in the robberies alleged in the Indictment, id. at 36. Simpson

requests the appointment of counsel and a certificate of appealability in the event that the Court

denies his motion under § 2255. Id. at 37-38.

On October 24, 2019, the Court issued an order stating that Simpson’s § 2255 motion

appeared to be untimely because he filed it more than one year after the judgment of conviction

became final. Docket No. 115 at 2. The Court noted that the May 3, 2017, judgment became final

on May 17, 2017, which is the date on which the fourteen-day time period for filing a notice of

appeal expired. Id. The Court reasoned that, under 28 U.S.C. § 2255(f), Simpson had one year

from the date on which the judgment of conviction became final (May 17, 2017) to file a § 2255

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motion; that one-year period expired on May 17, 2018. Id. The Court noted that Simpson filed

the present motion on August 6, 2018, approximately three months after the one-year limitations

period ended, and that Simpson had not provided any explanation in his § 2255 motion for his

delay in filing it. Id.

Accordingly, in the same order, the Court ordered Simpson by January 6, 2020, to show

cause why his § 2255 motion should not be denied as time-barred and to:

(1) explain why the one-year statute of limitations does not bar the

Motion;

(2) provide any explanation for his delay in filing the Motion

beyond the one-year period after the judgment became final; and

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(3) demonstrate that such a delay is attributable to “extraordinary

circumstances.”

Id. at 2-3.

Simpson filed a response to the Court’s order on January 7, 2020. Docket No. 118.

There, Simpson stated that “extraordinary circumstances” exist for tolling the statute of

limitations, namely his transfer to another facility in March 2018 in connection with a then-

ongoing grand jury proceeding. Id. at 1. In support of this basis, Simpson attached a declaration

from his prior counsel, Edward Swanson, stating that Simpson was summoned to a grand jury

proceeding in early March 2018 and that he was unable to bring his paperwork with him when he

was moved from USP Atwater to Santa Rita County Jail. Id. at 4-6; see also Docket No. 83.

Swanson’s declaration also states that Simpson had been trying to obtain plea and sentencing

transcripts since October 2017 but he did not receive these documents until only a few days

before he was moved to Santa Rita County Jail. Id.

On March 23, 2020, the Court issued another order, in which it stated that Simpson had

identified a few grounds for potentially tolling the one-year limitations period, but that he failed

to proffer evidence in support of these grounds. Docket No. 123 at 2-3. With respect to the

delay caused by the transfer to Santa Rita County Jail, the Court found that Simpson did not

identify the length of the delay attributable to the move (in other words, he did not identify the

dates in which he was transferred to Santa Rita County Jail and the date he was transferred from

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Santa Rita County Jail). Id. The Court further found that he did not explain why he could not

have filed his motion prior to his transfer to Santa Rita County Jail. Id. The Court advised

Simpson that, to the extent that he intends to argue that the statute of limitations should be tolled

because of a delay attributable to his attempt to obtain transcripts, Simpson must “demonstrate

the requisite causation – i.e., that the lack of access to these documents made it impossible for

him to timely file a habeas petition,” and that he also must show his diligence in attempting to

obtain the transcripts. Id.

To provide Simpson with a second opportunity to proffer evidence to support his request

for equitable tolling, the Court continued the order to show cause to June 23, 2020, and it ordered

Simpson to identify any evidence relevant to the following matters in his further response:

(1) With respect to the relocation to and from Santa Rita County

Jail: demonstrate that Simpson’s efforts constitute due diligence,

identify the length of the delay, including identifying the dates of

relocation to and from Santa Rita County Jail, and provide an

explanation as to why Simpson could not have filed the motion

prior to the relocation; and

(2) With respect to the transcripts: demonstrate that Simpson’s

efforts constituted due diligence, and that the lack of these

documents made it impossible for Simpson to file a habeas

petition, including why the transcripts were necessary for the

preparation of his motion.

Id. at 3. The Court cautioned Simpson “that failure to file a response making the showing

described in this Order may result in a finding that equitable tolling should not apply in this

case.” Id.

On April 9, 2020, Simpson filed a declaration in response to the Court’s order. Docket

No. 125. There, Simpson states that (1) he requested that his counsel file a notice of appeal with

respect to his convictions and sentence in this matter, but that his counsel failed to do so on the

ground that Simpson had waived his right to appeal pursuant to his plea agreement; (2) he asked

his counsel to forward him copies of the plea agreement and the transcripts of the plea and

sentencing hearings “so that [he] could be sure” that he had, in fact, waived his right to appeal

his convictions and sentence, but his counsel did not send him these documents; (3) he requested

copies of the transcripts of the plea and sentencing hearings from the Clerk, but the Clerk did not

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send him copies of these documents until March 2018; (4) he was in the “process of reviewing

the transcripts to be sure that [he] had in fact waived [his] right to appeal” and he was “about to

file the 2255” motion when he was transferred to Santa Rita County Jail in early March 2018; (4)

he filed the present § 2255 motion “upon [his] return to USP Atwater” (Simpson does not specify

the date on which he returned); and (5) the plea and sentencing hearing transcripts were

“necessary for the preparation of the 2255 Motion” because Simpson wanted to avoid wasting

“time, effort, and judicial resources in pursuing claims that would not warrant relief.” Docket

No. 125.

In light of the filing of Simpson’s April 9, 2020, declaration, the question of whether

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Simpson has shown that the one-year limitations period under 28 U.S.C. § 2255(f) is subject to

equitable tolling is now ripe for determination.

II.

LEGAL STANDARD

Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a defendant

may move to vacate, set aside, or correct his sentence “upon the ground that the sentence was

imposed in violation of the Constitution or laws of the United States, or that the court was without

jurisdiction to impose such sentence, or that the sentence was in excess of the maximum

authorized by law, or is otherwise subject to collateral attack.” 28 U.S.C. § 2255(a). If any of

these grounds exists, the court “shall vacate and set the judgment aside and shall discharge the

prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate.”

28 U.S.C. § 2255(b).

A motion under 28 U.S.C. § 2255 is subject to a one-year statute of limitations. See 28

U.S.C. § 2255(f). The one-year limitations period begins to run, in relevant part, from the date on

which the judgment of conviction becomes final. Id. “The statute of limitations contained in

§ 2255 is subject to equitable tolling,” but only where “extraordinary circumstances beyond [the

movant’s] control [made] it impossible to file a petition on time and the extraordinary

circumstances were the cause of his untimeliness.” United States v. Battles, 362 F.3d 1195, 1197

(9th Cir. 2004) (citation and internal quotation marks omitted) (emphasis supplied). The movant

bears the burden of establishing that he is entitled to equitable tolling. Smith v. Duncan, 297 F.3d

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809, 814 (9th Cir. 2002). “[T]he threshold necessary to trigger equitable tolling is very high.”

Spitsyn v. Moore, 345 F.3d. 796, 799 (9th Cir. 2003) (citation and internal quotation marks

omitted). A petitioner’s pro se status, on its own, is not enough to warrant equitable tolling. See

Johnson v. United States, 544 U.S. 295, 311 (2005) (“[W]e have never accepted pro se

representation alone or procedural ignorance as an excuse for prolonged inattention when a

statute’s clear policy calls for promptness.”).

III.

DISCUSSION

As noted, the one-year limitations period under 28 U.S.C. § 2255(f) began to run on the

date on which the judgment of conviction became final, which was on May 17, 2017, the date on

which the fourteen-day period expired for appealing the May 3, 2017, judgment pursuant to

Federal Rule of Appellate Procedure 4(b)(1)(A)(i). See United States v. Schwartz, 274 F.3d 1220,

1223 (9th Cir. 2001) (holding that the “statute of limitations within which [the movant] had to file

her § 2255 motion began to run upon the expiration of the time during which she could have

sought review by direct appeal”). Therefore, the one-year limitations period here ended on May

17, 2018.

Simpson filed the present § 2255 motion on August 6, 2018, almost three months after the

one-year limitations period ended. Simpson requests that the Court equitably toll the limitations

period on the ground that his delay in filing the motion was caused by his inability to obtain copies

of the transcripts of the plea and sentencing hearings until March 2018, and his transfer to Santa

Rita County Jail in early March 2018.

To receive equitable tolling, a § 2255 movant must show that “extraordinary circumstances

beyond [his] control [made] it impossible to file a petition on time and the extraordinary

circumstances were the cause of his untimeliness.” Battles, 362 F.3d at 1197 (emphasis supplied).

Simpson has not made the requisite showing. First, Simpson has not shown that

extraordinary circumstances beyond his control made it impossible for him to file a timely § 2255

motion. Simpson states in his declaration that he needed the plea and sentencing hearing

transcripts to prepare his § 2255 motion because they were necessary to determine whether he had

waived his right to appeal his convictions and sentence pursuant to his plea agreement, as the

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waiver was the stated reason for his counsel’s purported failure to file a notice of appeal. See

Docket No. 125 at 3, 5. Simpson argues that the waiver issue is relevant to his argument that his

counsel provided him with ineffective assistance by failing to file a notice of appeal. Id. Simpson

does not argue, however, that the question of whether he waived his right to appeal pursuant to the

plea agreement is or was relevant to any of the several other grounds he advanced in his § 2255

motion for vacating his convictions and sentence, which are described in more detail above.2 This

suggests that his inability to obtain the transcripts did not affect his ability to file a § 2255 motion

within the one-year limitations period based on these other grounds, and that he could have filed a

timely § 2255 motion based on these other grounds.

Additionally, Simpson has not shown that his transfer to Santa Rita County Jail in March

2018 made it impossible for him to file a timely § 2255 motion. The transfer could not have

prevented him from filing a timely § 2255 motion between May 2017, when the one-year

limitations period began to run, and March 2018, when he was transferred to Santa Rita County

Jail.

Accordingly, the Court cannot conclude that Simpson’s failure to obtain the transcripts

until March 2018 and his transfer to Santa Rita County Jail in March 2018 made it “impossible”

for him to file a timely § 2255 motion. See Battles, 362 F.3d at 1197.

Second, Simpson has not shown that extraordinary circumstances beyond his control were

the cause of his untimeliness. Simpson acknowledges in his declaration that the cause of his

untimeliness was his own decision to investigate the waiver issue before filing his § 2255 motion,

as he wished to avoid wasting time and effort on unmeritorious claims. See Docket No. 125 at 5.

This raises the inference that Simpson could have filed his § 2255 motion sooner, but he chose not

In his declaration of April 9, 2020, Simpson states that he wishes to withdraw all grounds

for vacating his convictions and sentence except for the ineffective assistance ground related to his

counsel’s failure to file a notice of appeal, because he now believes that the grounds he wishes to

withdraw lack merit. Docket No. 125 at 3-5. Simpson’s belated attempt to withdraw the other

grounds he asserted in his § 2255 motion does not change the Court’s finding that the lack of

transcripts did not prevent Simpson from filing his § 2255 motion within the one-year limitations

period.

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to do so. In light of this concession, the Court cannot conclude that Simpson’s untimeliness was

caused by an external circumstance “beyond [his] control.” See Battles, 362 F.3d at 1197.

For the foregoing reasons, the Court DENIES Simpson’s motion under 28 U.S.C. § 2255 as

time-barred.

In his § 2255 motion, Simpson requests a certificate of appealability to the extent that the

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Court denies his § 2255 motion. Where, as here, a § 2255 motion is denied on procedural

grounds, a court may issue a certificate of appealability only if the movant shows, in relevant part,

“that jurists of reason would find it debatable whether the district court was correct in its

procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). Here, a certificate of

appealability is not warranted because the one-year limitations period plainly bars Simpson’s

motion and, for that reason, a reasonable jurist could not conclude that the Court erred in denying

the § 2255 motion on procedural grounds. See id. (noting that no certificate of appealability

should be issued where “a plain procedural bar is present and the district court is correct to invoke

it to dispose of the case [because] a reasonable jurist could not conclude [in that circumstance]

either that the district court erred in dismissing the petition or that the petitioner should be allowed

to proceed further”). Id. Accordingly, the Court DENIES Simpson’s request for a certificate of

appealability.

IV.

CONCLUSION

In light of the foregoing, the Court DENIES Simpson’s motion under 28 U.S.C. § 2255 as

time-barred, and it DENIES Simpson’s request for a certificate of appealability.

This order terminates Docket Number 89.

IT IS SO ORDERED.

Dated: June 6, 2021

______________________________________

YVONNE GONZALEZ ROGERS

UNITED STATES DISTRICT COURT JUDGE

App. 15

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