                                                                           FILED
                            NOT FOR PUBLICATION                             MAY 20 2010

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 09-15201

              Plaintiff - Appellee,              D.C. Nos.    2:06-cv-02302-JAT
                                                              02-cr-00155-JAT
  v.

JOHN DERRICK MARTIN,                             MEMORANDUM *

              Defendant - Appellant.



                    Appeal from the United States District Court
                             for the District of Arizona
                    James A. Teilborg, District Judge, Presiding

                        Argued and Submitted May 10, 2010
                             San Francisco, California

Before: REINHARDT, W. FLETCHER and N.R. SMITH, Circuit Judges.

       John Derrick Martin, a federal prisoner, appeals the dismissal of his 28

U.S.C. § 2255 motion to vacate the sentence imposed following his jury conviction

for conspiracy and attempted possession with intent to distribute cocaine. The

district court denied Martin’s 28 U.S.C. § 2255 motion as untimely. We review de



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
novo. See United States v. Gamba, 541 F.3d 895, 898 (9th Cir. 2008); United

States v. LaFromboise, 427 F.3d 680, 682-83 (9th Cir. 2005); United States v.

Zuno-Arce, 339 F.3d 886, 888 (9th Cir. 2003). We reverse the district court’s

ruling and remand this case for further proceedings.

      In Martin’s direct appeal, United States v. Martin, 117 Fed. App’x 509 (9th

Cir. 2004) (mem.), we entered an order affirming his conviction on November 23,

2004, but reserved a sentencing question pending the Supreme Court’s

forthcoming decision in United States v. Booker, 543 U.S. 220 (2005), and “during

the pendency of any further related motions in the present case.” Martin, 117 Fed.

App’x at 512. Following supplemental briefing, we concluded that a limited

remand for sentencing purposes was not appropriate. We entered an order

affirming the judgment and the sentence imposed by the district court in this cause

on September 27, 2005. Our order was denominated “judgment.” It constituted a

final judgment affirming Martin’s conviction and sentence for 28 U.S.C. § 2255

purposes.

      A 28 U.S.C. § 2255 motion must be filed within one year from “the date on

which the judgment of conviction becomes final.” 28 U.S.C. § 2255(f)(1).

In the context of 28 U.S.C. § 2255 motions, “a judgment of conviction becomes

final when the time expires for filing a petition for certiorari contesting the


                                           2
appellate court’s affirmation of the conviction.” Clay v. United States, 537 U.S.

522, 525 (2003). In Martin’s case, our judgment was dated September 27, 2005,

and Martin had 90 days thereafter to petition the Supreme Court for certiorari. Id.

His “judgment of conviction” therefore became final on December 26, 2005, and

his time limit for filing a 28 U.S.C. § 2255 motion was December 26, 2006.

      Martin filed a 28 U.S.C. § 2255 motion on September 26, 2006, 91 days

before the statutory deadline. The district court, however, erroneously dismissed

his motion as untimely, assuming that the judgment of conviction became final on

February 21, 2005, 90 days after the entry of our November 23, 2004 order, rather

than on December 26, 2006. Accordingly, the motion was timely filed and we

remand the case for further proceedings.

      REVERSED and REMANDED.




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