                     FOR PUBLICATION

    UNITED STATES COURT OF APPEALS
         FOR THE NINTH CIRCUIT

 UNITED STATES OF AMERICA,                         No. 13-15845
                 Plaintiff-Appellee,
                                                     D.C. Nos.
                     v.                           2:10-cv-01330-
                                                    MCE-CMK
 J. TYLER REVES,                                  2:02-cr-00468-
               Defendant-Appellant.                MCE-CMK-3



 UNITED STATES OF AMERICA,                         No. 13-15847
                 Plaintiff-Appellee,
                                                     D.C. Nos.
                     v.                           2:10-cv-01402-
                                                    MCE-CMK
 LYNN G. BEDFORD,                                 2:02-cr-00468-
              Defendant-Appellant.                 MCE-CMK-2

                                                     OPINION

      Appeal from the United States District Court
          for the Eastern District of California
 Morrison C. England, Jr., Chief District Judge, Presiding

                Submitted November 20, 2014*
                  San Francisco, California



  *
    The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
2                     UNITED STATES V. REVES

                      Filed December 15, 2014

         Before: Ferdinand F. Fernandez and Sandra S. Ikuta,
         Circuit Judges, and William H. Albritton III, Senior
                           District Judge.**

                     Opinion by Judge Albritton


                           SUMMARY***


                          Habeas Corpus

    The panel affirmed in part, and reversed and remanded in
part, in a consolidated appeal arising from the district court’s
judgments denying as untimely J. Tyler Reves’s and Lynn G.
Bedford’s motions to vacate their sentences under 28 U.S.C.
§ 2255.

    The panel held that the district court did not have
jurisdiction to consider Bedford’s § 2255 motion because
Bedford, whose sentence of probation expired the day before
his motion was filed, was not “in custody” at the time he filed
his motion, as required by § 2255(a). The panel held that the
Federal Rules of Civil Procedure did not operate to extend
Bedford’s sentence, which ended on a Sunday, by one more


    **
   The Honorable William H. Albritton III, Senior District Judge for the
U.S. District Court for the Middle District of Alabama, sitting by
designation.
  ***
      This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                  UNITED STATES V. REVES                      3

day. The panel explained that the jurisdictional requirement
that a § 2255 motion is only available to a prisoner in custody
is a condition that either exists or does not exist, rather than
a statute of limitations or other deadline for filing, as
contemplated by the Federal Rules. The panel therefore
reversed the district court’s denial of Bedford’s motion as
untimely, and remanded with directions to dismiss the motion
for lack of jurisdiction.

    The panel held that the district court was correct that
Reves’s motion was untimely and that he does not qualify for
the actual innocence or equitable tolling exceptions. The
panel wrote that judicial opinions and exonerations of others
do not affect the factual or legal basis for Reves’s conviction
pursuant to his plea agreement. The panel also found that
Reves expressly waived his right to collaterally attack his
conviction or sentence through a § 2255 motion in his plea
agreement and during his change of plea colloquy; and
concluded that the waiver is enforceable.


                         COUNSEL

J. Tyler Reves, Pro Se, Modesto, California, for Defendant-
Appellant J. Tyler Reves; Daniel Malakauskas, Stockton,
California, for Defendant-Appellant Lynn G. Bedford.

Benjamin B. Wagner, United States Attorney, Camil A.
Skipper, Appellate Chief, and Sherry D. Haus, Assistant
United States Attorney, United States Attorney’s Office,
Sacramento, California, for Plaintiff-Appellee.
4                 UNITED STATES V. REVES

                          OPINION

ALBRITTON, Senior District Judge:

    This is a consolidated appeal in which Appellants J. Tyler
Reves and Lynn G. Bedford appeal the District Court’s denial
of their motions to vacate their sentences under 28 U.S.C.
§ 2255.

     On appeal as to Bedford, the Government argues, inter
alia, that the district court did not have jurisdiction over
Bedford’s motion because it was filed the day after his
sentence expired, meaning he was no longer “in custody” as
is required to avail oneself of relief under § 2255. Bedford
responds that because his sentence ended on a Sunday, he
was still able to properly file his motion the following day, a
Monday. The applicability of the Federal Rules’ extension of
time provisions to the “in custody” requirement is an issue of
first impression in the Ninth Circuit.

   We have appellate jurisdiction under 28 U.S.C. §§ 1291
and 2255. We affirm in part, and reverse and remand in part.

                       BACKGROUND

    The underlying convictions in this case are the result of an
FBI investigation into an allegedly corrupt scheme involving
Appellants and three other defendants. At the relevant time,
Bedford was on the San Joaquin County Board of Supervisors
and Reves was his legislative aide. The other related
defendants were County Prosecutor Allen Sawyer
(“Sawyer”), former County Sheriff T. Baxter Dunn (“Dunn”),
and lobbyist Monte D. McFall (“McFall”). These latter three
defendants formed multiple entities and formed a business
                    UNITED STATES V. REVES                             5

relationship with Sunlaw Energy Corporation. The criminal
investigation stemmed from allegations that each of the five
defendants played a role in ensuring that Sunlaw received a
bid to construct a plant in the Port of Stockton instead of
Sunlaw’s competitor, the Calpine Corporation.

    Sawyer and Dunn each pled guilty to one count of honest
services mail fraud and received six-month prison sentences.
McFall went to trial and was convicted by a jury of nine
counts of attempted extortion and conspiracy to commit
extortion under the Hobbs Act, six counts of honest services
mail fraud, and two counts of attempted witness tampering.1
He was convicted of seventeen out of the twenty total counts
charged in the indictment, as the jury acquitted him of three
counts of mail fraud. McFall was sentenced to 121 months in
prison. Bedford and Reves each pled guilty to one count of
making a false statement under 18 U.S.C. § 1001 and each
received sixty months of probation as a sentence.

    On March 9, 2009, we reversed McFall’s convictions on
five counts, including all three counts of attempted extortion
and conspiracy to commit extortion related to the Port of
Stockton energy project, for insufficiency of the evidence.
United States v. McFall, 558 F.3d 951, 953 (9th Cir. 2009).
We reversed the convictions on these three counts because
“the evidence did not establish, nor did the indictment allege,
that McFall obtained or attempted to obtain any property or
intangible right from Calpine [Corporation]” as is required by
the definition of extortion under the Hobbs Act. Id. at 958.
On resentencing in September 2009, McFall received a new
sentence of 78 months.

 1
   These included numerous counts of criminal activity not related to the
Port of Stockton project.
6                UNITED STATES V. REVES

    More than a year after we reversed five of McFall’s
convictions, Reves filed his § 2255 motion to vacate his
sentence on May 27, 2010, and Bedford followed suit on June
7, 2010.

    On June 24, 2010, in Skilling v. United States, 561 U.S.
358, 408–09 (2010), the Supreme Court narrowed the
definition of honest services mail fraud to include only
schemes involving bribery or kickbacks. In the wake of that
decision, we set aside and vacated Dunn and Sawyer’s
convictions because the conduct covered by the honest
services mail fraud statute no longer included the conduct to
which they both pled guilty.

    In their § 2255 motions in the District Court and now on
appeal, Appellants argue that the McFall and Skilling
decisions, and the partial exoneration of McFall and total
exoneration of Sawyer and Dunn, mandate that their
convictions also be set aside. The Government opposed the
motions, and continues to oppose them on appeal, on the
basis that they are untimely and do not qualify for any of the
exceptions to the relevant statute of limitations. The district
court denied the motions on those grounds. Appellants timely
appealed.

                 STANDARD OF REVIEW

     We review a district court’s denial of a § 2255 motion de
novo. United States v. Ratigan, 351 F.3d 957, 961 (9th Cir.
2003). The district court’s assumption of jurisdiction, the
validity of waiver of appellate rights, and equitable tolling
decisions are all likewise reviewed de novo. United States v.
Battles, 362 F.3d 1195, 1196 (9th Cir. 2004) (equitable
tolling); United States v. Bennett, 147 F.3d 912, 913 (9th Cir.
                  UNITED STATES V. REVES                        7

1998) (jurisdictional issues); United States v. Buchanan,
59 F.3d 914, 918 (9th Cir. 1995) (waiver of appellate rights).
The standard of review applicable to claims of actual
innocence “is not entirely settled in this circuit,” but because
Reves has failed to establish an actual innocence claim under
either clear error or de novo review, and because we find the
District Court had no jurisdiction over Bedford’s motion, we
need not decide which standard is appropriate in this case.
Jones v. Taylor, 763 F.3d 1242, 1245 (9th Cir. 2014) (quoting
Stewart v. Cate, 757 F.3d 929, 938 (9th Cir. 2014)).

                         DISCUSSION

    A. Bedford’s § 2255 Motion

    The District Court did not have jurisdiction to consider
Bedford’s § 2255 motion. Although the District Court denied
both Appellants’ motions as untimely based on the one-year
statute of limitations in 28 U.S.C. § 2255(f)(4), lack of
jurisdiction is a matter which can be raised at any time,
Bennett, 147 F.3d at 914, and must be addressed before any
consideration of the merits. See Smith v. U.S. Customs &
Border Prot., 741 F.3d 1016, 1019 & n.1 (9th Cir. 2014) (“in
custody” issue is a threshold jurisdictional issue that must be
addressed first, even where not addressed by the district
court); Williamson v. Gregoire, 151 F.3d 1180, 1182 (9th Cir.
1998) (“Because the ‘in custody’ requirement is
jurisdictional, . . . it is the first question we must consider on
this appeal.”).

    Motions to vacate a sentence under 28 U.S.C. § 2255 are
expressly available only to “a prisoner in custody.” Bedford
was not actually “in custody” at the time he filed his motion,
as required by § 2255(a). See Maleng v. Cook, 490 U.S. 488,
8                    UNITED STATES V. REVES

490–91 (1989) (petitioner must be “in custody,” which
includes supervised release and probation, when motion is
filed). Bedford’s probation expired the day before his motion
was filed.

    All parties agree and acknowledge that Bedford’s
sentence of probation ended on Sunday, June 6, 2010, and his
§ 2255 motion was filed on Monday, June 7, 2010. Bedford
argues this is not fatal to jurisdiction because time periods
that end on a Saturday or Sunday, as was the case here,
extend to the next working day under Fed. R. App. P. 26.2
However, the “in custody” requirement is not a given time
period in the same sense that a limitations period is. The
Federal Rules of Civil Procedure did not operate to extend
Bedford’s sentence by one more day. Section 2255 motions,
by the explicit terms of the statute, may be brought only by
persons “in custody.” Regardless of the day of the week, the
fact is that Bedford was no longer “in custody” at the end of
the exact day that his sentence expired. This jurisdictional
requirement that a § 2255 motion to vacate is only available
to a prisoner in custody is a condition that either exists or
does not exist, rather than a statute of limitations or other
deadline for filing, as contemplated by the Federal Rules.


    2
    Bedford cites the Federal Rules of Appellate Procedure to support his
argument, but in this situation the applicable provision is instead Fed. R.
Civ. P. 6(a)(1)(C), which extends periods ending on a Saturday, Sunday,
or legal holiday to the next day that is not a weekend or holiday. The
Federal Rules of Civil Procedure apply in § 2255 cases in district court to
the extent that they are not inconsistent with the § 2255 rules. See Rule
12 of the Rules Governing Section 2255 Proceedings. The legal analysis
and result are the same under either set of rules, because the Rules of
Appellate and Civil Procedure treat weekends and holidays the same way
in computing time periods. Compare Fed. R. Civ. P. 6(a)(1)(C), with Fed.
R. App. P. 26(a)(1)(C).
                  UNITED STATES V. REVES                      9

    Because this issue is jurisdictional, the District Court did
not have proper authority to pass on any other aspect of
Bedford’s motion. Williamson, 151 F.3d at 1182. We
therefore reverse the denial of his § 2255 motion to vacate his
sentence, and remand with directions to dismiss the motion
for lack of jurisdiction.

    B. Reves’s § 2255 Motion

    The District Court was correct that Reves’s motion was
untimely and that he does not qualify for the actual innocence
or equitable tolling exceptions. Reves has alleged that the
judicial opinions leading to the partial or complete
exoneration of his three codefendants (aside from Bedford),
along with the exonerations themselves, are new facts and
evidence supporting the timeliness of his motion under
§ 2255(f)(4), his claim of actual innocence, and his claim that
he is entitled in any event to equitable tolling. However, the
judicial opinions and exonerations regarding others do not
affect the factual or legal basis for Reves’s conviction,
pursuant to his plea agreement, for making a false statement
under 18 U.S.C. § 1001. Reves admitted that he knowingly
and willfully made a material false statement to the FBI in its
investigation of the awarding of the Port of Stockton contract.
In the wake of the judicial opinions as to others, the conduct
to which Reves pled guilty remains criminal because the
opinions did nothing to alter the scope of conduct covered by
the statute to which Reves pled. Therefore, the District Court
was correct in finding that there were no extraordinary
circumstances that prevented Reves from filing a § 2255
motion within one year of the date on which his judgment of
conviction became final. See Holland v. Florida, 560 U.S.
631, 649 (2010) (equitable tolling requires showing of
10               UNITED STATES V. REVES

“extraordinary circumstances” and diligent pursuit of rights).
Reves is not eligible for the equitable tolling exception.

    We also find that Reves expressly waived his right to
collaterally attack his conviction or sentence through a § 2255
motion in his plea agreement and during his change of plea
colloquy. The record indicates this waiver was express,
knowing, and voluntary, and is therefore enforceable. United
States v. Pruitt, 32 F.3d 431, 433 (9th Cir. 1994).

                       CONCLUSION

    For the foregoing reasons, the judgment of the district
court is AFFIRMED as to Reves, and REVERSED and
REMANDED with directions to dismiss for lack of
jurisdiction as to Bedford.
