                                                                    [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT           FILED
                                    ________________________ U.S. COURT OF APPEALS
                                                                   ELEVENTH CIRCUIT
                                            No. 11-10987            OCTOBER 25, 2011
                                        Non-Argument Calendar          JOHN LEY
                                                                         CLERK
                                      ________________________

                              D.C. Docket Nos. 9:11-cv-80141-DTKH
                                      9:07-cr-80114-DTKH

PAULO HENRIQUE HILEL,

llllllllllllllllllllllllllllllllllllllll                         Petitioner-Appellant,

                                               versus

UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll                         Respondent-Appellee.

                                     ________________________

                           Appeal from the United States District Court
                               for the Southern District of Florida
                                 ________________________

                                           (October 25, 2011)

Before TJOFLAT, CARNES and FAY, Circuit Judges.

PER CURIAM:

         While the district court’s ruling denying petitioner’s motion for a new trial,

see Fed. R. Crim. P. 33, was pending in this court on appeal, petitioner moved the
district court pursuant to 28 U.S.C. § 2255 for relief from his conviction for

conspiring to commit alien smuggling. Over petitioner’s and the Government’s

objection, the district court dismissed petitioner’s § 2255 motion without

prejudice. (We subsequently affirmed the district court’s Rule 33 ruling, United

States v. Hilel, 352 Fed. App’x 378 (11th Cir. 2009).)

      Pursuant to § 2255, a defendant has one year from, inter alia, the date that

his conviction became final, to file a § 2255 motion to vacate. 28 U.S.C.

§ 2255(f)(1). In this case (as in all court of appeals affirmances of convictions),

the petitioner had 90 days following our affirmance of his conspiracy conviction

to petition the Supreme Court for a writ of certiorari to review our decision. He

did not petition the Court for the writ, so his conviction became final after this 90-

days period expired. Kaufmann v. United States, 282 F.3d 1336, 1338 (11th Cir.

2002).

      Under Rule 33, upon a defendant’s motion, “the court may vacate any

judgment and grant a new trial if the interest of justice so requires.”

Fed.R.Crim.P. 33(a). Filing a Rule 33 motion for new trial is not considered an

extension of the direct appeal, and does not toll the § 2255(f)(1) one-year

limitations period for filing a § 2255 motion. Barnes v. United States, 437 F.3d

1079 (11th Cir. 2006).

                                           2
      As both parties agree, the dismissal without prejudice here had the effect of

a dismissal with prejudice, because of the impact of the § 2255(f)(1) time-bar.

Given this consequence, the court should have stayed proceedings on the § 2255

motion until the Rule 33 proceeding was resolved. We therefore Vacate the

district court’s judgment of dismissal and REMAND the case for further

consideration of petitioner’s § 2255 motion.

      VACATED AND REMANDED.




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