                                                                        FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                    June 5, 2009
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                    Clerk of Court
                                 TENTH CIRCUIT



 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,                       No. 07-2154
          v.                                             (D. of N.M.)
 JUAN MANUEL CARBAJAL-                            (D.C. No. CIV-06-301-JC)
 MORENO,

               Defendant-Appellant.


                           ORDER AND JUDGMENT *


Before HENRY, TYMKOVICH, Circuit Judges, and LEONARD, District
Judge. **



      Juan Manuel Carbajal-Moreno appeals the dismissal of his petition for

habeas corpus. The district court concluded the petition was untimely because

Carbajal missed the one year statute of limitation required under 28 U.S.C.

§ 2255. Because we conclude that Carbajal timely filed his petition within one




      *
         This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
      **
        The Hon. Timothy D. Leonard, United States District Court Judge for
the Western District of Oklahoma, sitting by designation.
year of the completion of his direct appeal, we REVERSE the district court’s

order and remand for further proceedings.

                                  I. Background

      Carbajal was indicted in 2001 on eight counts relating to drug possession

and distribution. A jury convicted him of all counts, and the district court

sentenced him to concurrent prison terms of 262 months on each count. Carbajal

timely appealed his convictions on two of the counts.

      We reversed on one of the counts, a conspiracy charge, on double jeopardy

grounds, but affirmed a related continuing criminal enterprise conviction. We

remanded the case to the district court and ordered it to “vacate the conspiracy

conviction . . . and to adjust Carbajal-Moreno’s sentence accordingly.” United

States v. Carbajal-Moreno, 87 F. App’x 700, 706 (10th Cir. 2004) (Carbajal-

Moreno I).

      During the time the case was before the district court on remand, and 35

months after the jury verdict, Carbajal filed a Rule 33 motion for new trial based

on newly discovered evidence, alleging that “sometime after his convictions were

entered he discovered that his trial attorney surrendered his Bar license prior to

trial,” United States v. Carbajal-Moreno, 136 F. App’x 163, 164, 167 (10th Cir.

2005) (Carbajal-Moreno II), and that his representation was therefore ineffective

under the Sixth Amendment. The district court denied the motion in July 2004,




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reasoning that ineffective assistance of counsel claims are ordinarily best pursued

in collateral proceedings.

      On August 4, 2004, the district court entered its amended judgment in the

remand proceedings, vacating the conspiracy conviction and sentencing Carbajal

to concurrent terms of 262 months for each of the remaining counts. 1 Carbajal

filed a notice of appeal on August 11, 2004, stating his “intent to appeal to the

United States Court of Appeals for the Tenth Circuit from the attached August 10,

2004 Amended Judgment and the July 28, 2004 order.” Dist. Ct. R. Doc. 457

(August 11, 2004). We affirmed the dismissal of Carbajal’s Rule 33 Motion in

June 2005, although our order did not specifically discuss the amended judgment.

Carbajal-Moreno II, 136 F. App’x at 164–67.

      In April 2006, Carbajal initiated this § 2255 collateral action to pursue his

ineffective assistance of counsel claim. The magistrate judge recommended

dismissing the petition as time-barred. The district court adopted the magistrate

judge’s recommendation and dismissed the action. Carbajal now appeals.

                                  II. Discussion

      Carbjal’s § 2255 motion was timely because he filed it within one year of

the final judgment in his case. We review the district court’s determination that a




      1
       The district court filed an additional amended judgment on August 10,
2004, correcting a clerical mistake.

                                         -3-
§ 2255 motion is time-barred de novo. See United States v. Cox, 83 F.3d 336,

338 (10th Cir. 1996).

                                          A.

      “A motion by a federal prisoner for postconviction relief under 28 U.S.C.

§ 2255 is subject to a one-year time limitation that generally runs from ‘the date

on which the judgment of conviction becomes final.’” Clay v. United States, 537

U.S. 522, 524 (2003) (citing § 2255). 2 In the context of post-conviction relief

and the Antiterrorism and Effective Death Penalty Act (AEDPA), “[f]inality

attaches when [the Supreme] Court affirms a conviction on the merits on direct

review or denies a petition for a writ of certiorari, or when the time for filing a

certiorari petition expires.” Id. at 527; United States v. Burch, 202 F.3d 1274,

1277 (10th Cir. 2000). In other words, a conviction becomes final upon the

completion of direct review. Burch, 202 F.3d at 1277.

      Where a defendant does not file a petition for writ of certiorari, direct

review is completed and the decision becomes final when the time for filing a

certiorari petition expires—ninety days after the court of appeals issues its

judgment. Burch, 202 F.3d at 1279. Furthermore, when a defendant does not

appeal a district court judgment to the court of appeals, that judgment becomes

final when the time to appeal the judgment expires—ten days after the district

      2
        Section 2255 provides that the one-year period begins on the latest of four
events; the relevant event in this case, as is generally the case, is the date the
judgment of conviction became final. § 2255; Clay, 537 U.S. at 525.

                                          -4-
court issues its judgment. See United States v. Prows, 448 F.3d 1223, 1227–28

(10th Cir. 2006); Moshier v. United States, 402 F.3d 116, 118 (2d Cir. 2005)

(“We . . . hold that, for purposes of § 2255 motions, an unappealed federal

criminal judgment becomes final when the time for filing a direct appeal

expires.”).

      The question here is when Carbajal’s conviction became final: after we

reversed and remanded for resentencing, or after the district court issued its

amended judgment and any appeal thereof was complete. The government argues

the conviction became final ninety days after our February 5, 2004 decision

affirming in part and reversing in part his initial appeal. Carbajal-Moreno I, 87

F. App’x at 706. Carbajal, however, contends his conviction could not have

become final until after the district court issued its decision on remand since we

ordered the district court to “vacate the conspiracy conviction” and “adjust the

sentence accordingly.”

      We agree with Carbajal. The Supreme Court recently considered a similar

question in Burton v. Stewart, 549 U.S. 147, 156 (2007). There, the Court

explained that a case on remand for resentencing was not final for purposes of

habeas proceedings arising from state court convictions until the resentencing and

the direct appeal thereof were complete: 3

      3
        The issue in Burton was whether the petitioner’s habeas petition should
be dismissed as an unauthorized successive petition pursuant to § 2244(b). 549
                                                                    (continued...)

                                         -5-
      Burton . . . contends that had he not filed the 1998 petition when he did,
      and instead waited until state review of his sentencing claims [—on remand
      for resentencing and on direct appeal of the amended sentence—] was
      complete, he risked losing the opportunity to challenge his conviction in
      federal court due to AEDPA’s 1-year statute of limitations. . . . But this
      argument misreads AEDPA. . . . Burton’s limitations period did not begin
      until both his conviction and sentence ‘became final by the conclusion of
      direct review or the expiration of the time for seeking such review.”

Id. (citation omitted) (emphasis added).

      Other circuits have reached the same conclusion under § 2255. See United

States v. Messervey, 269 F. App’x 379, 381 (5th Cir. 2008) (addressing a motion

under § 2255 and concluding that “[i]n light of Burton, we hold that in cases in

which a defendant’s conviction is affirmed on appeal but the case is remanded for

re-sentencing, the defendant’s conviction becomes final for limitations purposes

under the AEDPA when [ ] both the conviction and sentence become final by the

conclusion of direct review or the expiration of time for seeking such review.”);

see also United States v. Lafromboise, 427 F.3d 680, 683–84 (9th Cir. 2005);


      3
        (...continued)
U.S. at 149. The Burton Court found that the petition was a successive petition
because the petitioner was contesting the same custody imposed by the same state
court judgment as he previously contested in a petition filed several years before.
See id. at 155–56. The Burton Court addressed the AEDPA limitations period in
response to the petitioner’s argument that if he had waited to file his first habeas
petition until state court review of his sentencing claims was complete, he risked
losing the opportunity to challenge his conviction in federal court pursuant to the
one-year statute of limitations. See id. at 156. The Court rejected the petitioner’s
argument, finding that the AEDPA limitation did not begin to run until direct
review of Burton’s conviction concluded. Id.



                                           -6-
United States v. Colvin, 204 F.3d 1221, 1224-26 (9th Cir. 2000) (explaining legal

and policy rationale for clear rule of finality).

      This logic is also consistent with our case law. For example, in United

States v. Burch we explained that “read in the context of the AEDPA, § 2255’s

use of ‘final’ plainly means ‘a decision from which no appeal or writ of error can

be taken.’” 202 F.3d at 1277 (citing Black’s Law Dictionary 629 (6th ed. 1990)).

But an appeal could arise from resentencing. Indeed, “where the appellate court

has not specifically limited the scope of the remand, the district court generally

has discretion to expand the resentencing beyond the sentencing error causing the

reversal.” United States v. Hicks, 146 F.3d 1198, 1200–02 (10th Cir. 1998)

(citation omitted) (explaining that simple commands such as “vacate,” “set aside,”

and “affirm” are not sufficiently specific to limit the district court’s discretionary

power); Ward v. Williams, 240 F.3d 1238, 1243–44 (10th Cir. 2001) (explaining

that under the sentencing packaging doctrine, when one of the counts upon which

a defendant has been convicted is set aside or vacated, the district court is free to

reconsider de novo the sentencing package unless the appellate court specifically

limited the district court’s discretion on remand). As we have clarified, “after we

vacate a count of conviction that is part of a multi-count indictment, a district

court ‘possesses the inherent discretionary power’ to resentence a defendant on

the remaining counts de novo unless we impose specific limits on the court’s

authority to resentence.” Hicks, 146 F.3d at 1202 (citation omitted) (noting that

                                           -7-
the sentencing package doctrine generally permits the district court to resentence

a defendant on convictions that remain after he succeeds in getting one or more

convictions vacated—even if he did not challenge the convictions on which he is

resentenced).

      Here, we did not limit the district court on remand. See id. at 1200–02

(holding that despite this court’s failure to remand for resentencing, the district

court had authority on remand to reevaluate the entire sentencing package when

we vacated Hick’s sentence as to one offense and remanded for a new trial on that

offense, but affirmed “in all other respects” the other convictions and sentences,

and nothing in the mandate indicated that we intended to limit the district court’s

ability to resentence on the remaining counts). Therefore, the judgment was not

final until after the district court issued its amended judgment. See United States

v. Johnson, No. 99-5091, 1999 WL 983094 (10th Cir. Oct. 29, 1999) (finding that

Johnson’s conviction became final for AEDPA purposes ten days after judgment

was entered at resentencing—the date on which the time expired to directly

appeal the district court’s order following this court’s affirmance in part, reversal

in part, and remand for resentencing).

                                          B.

      The government contends the remand here was merely ministerial,

however, and did not affect the conviction’s finality. The government points to

Burrell v. United States, 467 F.3d 160, 161, 164 (2d Cir. 2006), where the Second

                                          -8-
Circuit deemed ministerial a remand when the court affirmed the conviction and

sentence on one count but remanded the case to the district court to “correct the

judgment to reflect dismissal” of another count. The circuit concluded that its

remand for the entry of an amended judgment was strictly ministerial—it required

a routine, nondiscretionary act by the district court that could not have been

appealed on any valid ground. Id. at 161, 165–66. Finding that “a ministerial

remand does not delay a judgment’s finality because the lower court’s entry of a

corrected judgment could not give rise to a valid appeal,” id. at 164, the court

concluded that Burrell’s conviction became final either when the Supreme Court

denied his petition for a writ of certiorari or when his time for filing a certiorari

petition expired. Id. at 166; see also Richardson v. Gramley, 998 F.2d 463, 465

(7th Cir. 1993); cf. United States v. Wilson, 256 F.3d 217, 218–20 (4th Cir. 2001)

(holding that the statutory period was not tolled by remand for vacatur of a

conviction on one count, after all other counts in judgment of conviction were

affirmed).

      We are unpersuaded that these cases apply here. The remand in this case

was not so clearly ministerial that we could expect Carbajal to have concluded

that his conviction became final and his AEDPA limitation period commenced

after we issued our judgment. Instead, our mandate did not limit the district

court’s discretion, and it is possible the reversal of one of the counts of

conviction could have affected the district court’s overall view of the original

                                           -9-
sentence. Our default rule in such cases is that the district court is free to

reconsider de novo the sentencing package unless the appellate court specifically

limited the district court’s discretion on remand. See Hicks, 146 F.3d at 1200–02;

United States v. Keifer, 198 F.3d 798, 801 (10th Cir. 1999); Ward, 240 F.3d at

1243–44.

                                           C.

      Consequently, we conclude that the conviction could not have become final

until after the appeal of the district court’s August 4, 2004 amended judgment.

Had Carbajal not filed a timely notice of appeal, his conviction would have

become final ten days after the amended judgment was issued. But Carbajal

timely filed a notice of appeal within ten days of the judgment, on August 11,

2004. His notice of appeal correctly designated the two orders being

appealed—both the denial of his Rule 33 motion and the amended judgment.

      The filing of “a notice of appeal generally divests a district court of

jurisdiction over the issues on appeal,” although it retains jurisdiction to consider

certain collateral matters. Prows, 448 F.3d at 1228 (10th Cir. 2006) (citing

Lancaster v. Independent Sch. Dist. No. 5, 149 F.3d 1228, 1237 (10th Cir. 1998)

(sanctions); United States v. Meyers, 95 F.3d 1475, 1489 n.6 (10th Cir. 1996)

(release pending appeal)); see also Fed. R. App. P. 4(b)(5). Indeed, the “court of

appeals acquires jurisdiction of an appeal . . . upon the filing of a timely notice of

appeal.” United States v. Torres, 372 F.3d 1159, 1161 (10th Cir. 2004) (citation

                                          -10-
omitted). Thus, once Carbajal filed his notice of appeal, we assumed jurisdiction

over his appeal of the amended judgment.

      It does not matter that on appeal Carbajal ignored the amended judgment

and focused his appellate arguments on the district court’s dismissal of his Rule

33 motion. Under Federal Rule of Appellate Procedure 3(a)(2) “[a]n appellant’s

failure to take any step other than the timely filing of a notice of appeal does not

affect the validity of the appeal, but is ground only for the court of appeals to act

as it considers appropriate, including dismissing the appeal.” Fed. R. App. P.

3(a)(2); see also 20 James Wm. Moore et al., Moore’s Federal Practice

§ 303.31[3] (3d ed. 2009).

      In sum, Carbajal filed a timely notice of appeal of both orders entered by

the district court. We completed our direct review on June 20, 2005, affirming

the district court’s denial of the Rule 33 motion. 4 See Burch, 202 F.3d at 1277

(explaining that a decision is not final for AEDPA purposes until direct review

has been completed). Accordingly, Carbajal’s conviction did not become final

until ninety days after our June 2005 decision. Consequently, Carbajal’s § 2255

motion, filed in April of 2006, was timely filed within one year of the date his

conviction became final.




      4
      Our opinion did not specifically discuss Carbajal’s appeal of the amended
judgment, but it would have been dismissed as a part of our order and judgment.

                                          -11-
      For the foregoing reasons, we REVERSE and remand to the district court

for further proceedings.

                                                 Entered for the Court

                                                 Timothy M. Tymkovich
                                                 Circuit Judge




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