[00:00:00] Speaker 00: Good morning, your honors. [00:00:01] Speaker 00: Good morning. [00:00:02] Speaker 00: May it please the court. [00:00:03] Speaker 00: Elizabeth Richardson Royer on behalf of the appellant, Merle Simpson. [00:00:08] Speaker 00: I plan to reserve two minutes, but I will keep an eye on the clock. [00:00:11] Speaker 00: This appeal raises two basic issues, whether the amended judgment restarted the one-year clock under EDPA or whether Mr. Simpson is entitled to equitable tolling. [00:00:20] Speaker 00: I plan this morning to focus on the first issue, though if the court has questions about equitable tolling, of course, I'm more than happy to address that issue as well. [00:00:29] Speaker 00: The amended judgment that was issued in this case in October 2018 is a little bit unusual, and so this case doesn't fall neatly into the court's previous precedents. [00:00:42] Speaker 00: The amendment didn't follow an opinion by this court vacating the sentence and remanding, so it's not exactly like United States versus Colvin [00:00:50] Speaker 00: And the case isn't a pure deferred restitution case either, both because the court didn't explicitly defer restitution and because it involves these modifications to the supervised release conditions. [00:01:00] Speaker 00: So it's not exactly like the pure deferred restitution cases either. [00:01:04] Speaker 00: I think it doesn't matter because regardless of how the court views the admitted judgment, whether it affected Mr. Simpson's substantive rights or whether it was a deferred restitution judgment, [00:01:16] Speaker 00: The clock should restart from the date of the amendment. [00:01:19] Speaker 00: And that holding will be consistent with United States versus Colvin, as well as this court's more recent decision in United States versus Shahada, the Second Circuit's decision in Gonzalez, the Tenth Circuit's decision in Anthony, and the Supreme Court's decisions in Dolan and Manriquez. [00:01:36] Speaker 04: Why don't we follow Gilbert? [00:01:37] Speaker 04: Gilbert is contrary to Shahada, right? [00:01:40] Speaker 00: Gilbert predated the Supreme Court's decisions in Dolan and Manriquez. [00:01:45] Speaker 00: And it doesn't control here for two reasons. [00:01:48] Speaker 00: First, the amended judgment here didn't only impose a new restitution amount. [00:01:53] Speaker 00: And so to the extent that Gilbert held that a modification of the restitution amount doesn't restart the clock, this judgment does more than that. [00:02:02] Speaker 00: I think more fundamentally. [00:02:03] Speaker 04: What does this judgment do more than Gilbert? [00:02:06] Speaker 00: It imposed a new set of the standard conditions of supervised release outside of Mr. Simpson's presence. [00:02:15] Speaker 00: And several of them were, the language is quite different and could have given rise to an appeal on that basis. [00:02:23] Speaker 02: Are you relying on Montoya? [00:02:25] Speaker 00: On Montoya for that part of the judgment. [00:02:28] Speaker 00: Even though they're standard conditions? [00:02:30] Speaker 00: Even though they're standard conditions, Montoya holds that the defendant has a due process right to be present when the court imposes standard conditions, as long as they are not mandatory. [00:02:39] Speaker 00: And so in this case, when the court did that, Mr. Simpson, [00:02:43] Speaker 00: should have and would have had the right to appeal the imposition of those conditions, both if there were problems with them, but also because he was denied his due process right to be present. [00:02:53] Speaker 02: So what conditions were new as opposed to restated in a different way? [00:03:01] Speaker 00: They were restated. [00:03:03] Speaker 00: The ones that I think in the opening brief we referred to as knew the government correctly pointed out were in the mandatory conditions the first time around. [00:03:09] Speaker 02: So what is the one that is the strongest support for your contention that they're meaningfully different so that they really implicate Montoya? [00:03:16] Speaker 00: I think if you look at the opening brief at page 13, the condition about regular work is substantively different. [00:03:32] Speaker 00: you know, much more involved in the amended judgment. [00:03:37] Speaker 00: And, you know, the original judgment says just that the defendant shall work regularly at a lawful occupation unless excused, and the 2018 amendment is much more involved. [00:03:48] Speaker 00: You know, it requires him, if he plans to change, such as anything about his work, such as his position or responsibilities, he must notify the probation officer. [00:03:56] Speaker 00: And just to be clear, I'm not challenging the, [00:04:02] Speaker 00: the condition that was imposed in 2018. [00:04:05] Speaker 00: And as the court says in Colvin, we don't have to reach the merits of the appeal that could have been taken from the amended judgment. [00:04:13] Speaker 00: What I'm saying is that because there's all this new language, he had the right to appeal that. [00:04:18] Speaker 00: And he had the right to appeal the denial of due process based on the conditions being imposed outside his court. [00:04:25] Speaker 04: And it being the constitutional error, as you claim, why isn't harmless error applicable? [00:04:33] Speaker 04: harmless error applicable to- I mean, if there's no substantive change, so there are different conditions, but if it doesn't harm him, what's the problem? [00:04:43] Speaker 00: Well, we're not reaching the question in this case about the propriety of the new conditions. [00:04:50] Speaker 00: Under Colvin, if the defendant had a right to appeal, we don't look at whether that appeal would have been successful, but that restarts the clock. [00:05:01] Speaker 00: And so that's my contention here, is that because the new judgment was the new final judgment of conviction, because he had the right to appeal, whether that appeal would have been successful or not, that restarts the clock. [00:05:15] Speaker 00: And I think that even if the court disagrees about whether the new conditions gave rise to restarted the clock, the clock should be restarted on the basis of the new restitution amount as well. [00:05:30] Speaker 00: just go back to Gilbert and explain the second reason that I think it doesn't apply here. [00:05:36] Speaker 00: The first being that this judgment did more than just address restitution. [00:05:40] Speaker 00: The second being that Gilbert, when looked at in conjunction with Shahada, creates an impossible situation that I think this court has to deal with, where Shahada says that the final judgment doesn't occur until the deferred restitution amount is [00:05:57] Speaker 00: ordered. [00:05:58] Speaker 00: And so under Shahada, a defendant can wait as long as it takes for that deferred restitution to be ordered. [00:06:03] Speaker 00: But under Gilbert, the 2255 clock is running all that time. [00:06:07] Speaker 00: And that is a situation that's exactly what the court sought to avoid in Colvin, where a defendant can be forced to pursue 2255 relief before their direct appeal is over. [00:06:18] Speaker 00: And that is what the court in United States versus Anthony, the 10th Circuit opinion from 2022, discusses that sort of [00:06:27] Speaker 00: deeply problematic outcome if you don't restart the clock along with the deferred restitution order. [00:06:33] Speaker 03: Well, it may be problematic. [00:06:34] Speaker 03: I mean, the problem with our panel is that we have to follow Gilbert unless we conclude that intervening law makes it clearly irreconcilable with Supreme Court precedent. [00:06:45] Speaker 03: And I'm not sure we see that in this case. [00:06:48] Speaker 00: Well, respectfully, I disagree, Your Honor. [00:06:50] Speaker 00: I think that [00:06:52] Speaker 00: you know, Gilbert was decided before Dolan and before Manrique. [00:06:55] Speaker 00: And I think that Manrique makes abundantly clear that the final judgment, and as this court has interpreted it in Shahada, that the final judgment doesn't occur until the restitution order, that the restitution is part of the sentence. [00:07:14] Speaker 00: And I think that Gilbert is not reconcilable with that fundamental [00:07:21] Speaker 00: holding which the court recognized in Shahada that restitution is part of the sentence. [00:07:29] Speaker 00: And unless the court has further questions at this point, I'll reserve the remainder of my time. [00:07:33] Speaker 00: Sure. [00:07:34] Speaker 02: Thank you. [00:07:34] Speaker 02: That's fine. [00:07:34] Speaker 02: Thank you. [00:07:47] Speaker 01: Good morning. [00:07:48] Speaker 01: May it please the court, Annie Schaefer, United States. [00:07:52] Speaker 01: My colleague is correct that this is an unusual case. [00:07:56] Speaker 01: Mr. Simpson filed his 2255 petition three months after his limitation periods expired. [00:08:02] Speaker 01: And some months later, the district court, Sue Esponte, issued an amended judgment. [00:08:09] Speaker 01: The primary question and the certified issue before this court today is not whether this amended judgment was properly or legally issued or the changes that it made were proper or conducted with due process under Montoya or whatnot. [00:08:23] Speaker 01: It's what impact this amended judgment had on the EDPL limitations period for Mr. Simpson. [00:08:30] Speaker 01: I think the relevant starting principle here is that once a sentence is imposed by the district court, that district court has very limited authority to issue, to first modify that sentence, and it certainly has very little inherent authority to actually reset an EDPL limitations period. [00:08:47] Speaker 01: District courts can modify sentences as expressly authorized under the law, which include [00:08:53] Speaker 01: Correcting a sentence within a short period of time under Rule 35, it includes correcting clerical errors under Rule 36, it includes amendments to the restitution under the MVRA, and they can modify supervised release under 3583E. [00:09:08] Speaker 01: Under the majority of these circumstances, these modifications do not affect [00:09:12] Speaker 01: the EDPL limitations period for filing a collateral attack on the underlying conviction sentence. [00:09:19] Speaker 01: This is the critical point that distinguishes Mr. Simpson's case from Colvin and the majority of the cases on which he relies. [00:09:28] Speaker 01: Now to assess the impact of the amended judgment and its impact on the EDPL limitations period, it is important to examine them separately because they are governed by different legal authorities. [00:09:39] Speaker 01: So if we turn to the restitution changes in the amended judgment, [00:09:44] Speaker 01: The court here conducted what it viewed as a clerical correction. [00:09:50] Speaker 01: There is some record support for that, and there is some legal support, I think, under Dolan and the MVRA for what the court did, was essentially it changed restitution, increased it by a certain amount, and apparently added two victims that the defendant had pled to robbing. [00:10:10] Speaker 01: and had agreed to pay previously. [00:10:12] Speaker 01: But it did not actually match that oral pronouncement that I made at sentencing. [00:10:17] Speaker 01: And I think that's probably one of the problems here, is that whether or not the court could have done this, the government acknowledges, it may have been outside of its authority to have done this. [00:10:26] Speaker 01: But again, that's not the question here. [00:10:28] Speaker 01: The question is whether the cemented judgment, presuming it's illegal, had any impact in reopening Mr. Simpson's opportunity to attack his underlying conviction and sentence. [00:10:38] Speaker 01: And the answer has to be no. [00:10:40] Speaker 01: There's just no precedent for it. [00:10:42] Speaker 01: And again, the facts of the case are highly unusual. [00:10:44] Speaker 01: And I think that this court finds that there's a problem or the district court exceeded its authority in either, one, changing the restitution this late in the game, or two, which looks like an inadvertent or intentional act by the court, which is issuing the amended judgment with a rephrased set of standard conditions. [00:11:06] Speaker 01: The court can remand this for the limited ministerial purpose of essentially setting forth an amended judgment that reflects the oral pronouncement that actually controls here. [00:11:20] Speaker 01: What it does not do, however, is reopen that at-pet limitations period. [00:11:29] Speaker 01: And I know my colleague did not have much opportunity to discuss about equitable tolling, but I will just address that very briefly. [00:11:36] Speaker 01: I think in this case, the district court gave Mr. Simpson multiple opportunities in order to meet what is a high standard. [00:11:44] Speaker 01: She explicitly stated in her last order, she kept extending that order to show cause and told them, I need this information and I need specifically the dates by when you were transferred to and from that prison. [00:11:55] Speaker 01: and how this actually caused you from your timely filing. [00:11:59] Speaker 01: She also told Mr. Simpson that she needed to understand why the two transcripts that he was seeking related to the claims that he raised. [00:12:07] Speaker 01: And he did not do this. [00:12:08] Speaker 01: He did not provide any information in that respect. [00:12:11] Speaker 01: I think consistent with many of these court's cases on equitable tolling, [00:12:15] Speaker 01: Four v. Plyler, there's Waldron Ramsey. [00:12:18] Speaker 01: There are multiple cases in which this court and others have held that prison transfers alone don't arise to extraordinary circumstances, that there's still needs to be a call. [00:12:26] Speaker 02: But counsel, his contention was that he was transferred, as you know, right, I think to testify before a grand jury, and then they changed his mind and transferred him back. [00:12:33] Speaker 02: So his operative point being that he was separated from his papers. [00:12:37] Speaker 02: Yes, right. [00:12:38] Speaker 02: It seems to me that he did tell the judge that that was a problem because they need to see the transcript because he had heard about Jackson and he wanted to know whether or not he had waived his right to appeal on that basis. [00:12:50] Speaker 02: I didn't have a problem with that part of the record, but it did seem to me that the judge was asking, how long were you separated from your papers? [00:12:57] Speaker 02: I think that's her March 2020 order. [00:12:59] Speaker 02: Maybe opposing counsel can respond as well. [00:13:02] Speaker 02: In his April, and she did extend that opportunity to respond a couple of times, she asked specifically, [00:13:08] Speaker 02: And in his April response, he didn't tell her. [00:13:11] Speaker 02: He didn't give those dates, the bookend dates of that period. [00:13:15] Speaker 02: I do think the council at the time who was representing him [00:13:19] Speaker 02: responded and you can tell from that, I think, that he was, the front end, I think that he, it says in early March 2018, he was transferred. [00:13:33] Speaker 02: But we can't tell when he came back from this record, at least I can't. [00:13:36] Speaker 02: Is there any other place I should be looking? [00:13:38] Speaker 01: Not in the record, Your Honor, it's not in the record. [00:13:40] Speaker 01: I've tried to look into this issue also and [00:13:47] Speaker 01: Mr. Simpson did not provide any verification of the dates. [00:13:50] Speaker 01: There's no, you know, BOP transfer paperwork. [00:13:53] Speaker 01: I do know, and this is outside their record, that he was not specifically called by the trial counsel in this particular case, so it's not clear for what grand jury proceeding. [00:14:00] Speaker 01: Again, grand jury proceedings are secret, and so it's difficult sometimes to ascertain. [00:14:04] Speaker 02: Sure, and I'm not asking you to go outside the record. [00:14:07] Speaker 02: I am trying to make sure that I'm not missing something in the record, because I think the district court was so clear. [00:14:11] Speaker 02: Absolutely, Your Honor. [00:14:12] Speaker 02: I need it and I don't see it, so. [00:14:14] Speaker 01: It is not in the record, Your Honor. [00:14:15] Speaker 01: I think, you know, and I've combed over Mr. Simpson's affidavit. [00:14:19] Speaker 01: He says, again, he leaves that information out, but he says that he was moved in March 2018. [00:14:25] Speaker 01: I think Mr. Swanson adheres to that. [00:14:28] Speaker 01: Mr. Swanson's affidavit, as you mentioned, was filed on April 6 of 2018. [00:14:33] Speaker 01: And he said at that time, he had not yet been transferred. [00:14:36] Speaker 01: And then we don't know how long it took. [00:14:40] Speaker 01: Mr. Simpson just says, you know, after my return, I then filed. [00:14:43] Speaker 01: We know that he filed in August of 2018. [00:14:45] Speaker 01: We also know that Atwater and Santa Rita County Jail are a few hours from each other. [00:14:50] Speaker 01: And so, unlike a lot of transfers that we see in other cases in which you're moving across several facilities across the United States, and it takes a very long time, presumably, this is a much shorter geographic transfer that has to occur. [00:15:06] Speaker 02: All right. [00:15:06] Speaker 02: Thank you for that. [00:15:08] Speaker 02: Judge Vaya, anything? [00:15:09] Speaker 04: Questions? [00:15:10] Speaker 02: No. [00:15:10] Speaker 02: I don't think there are any further questions. [00:15:12] Speaker 02: OK. [00:15:12] Speaker 01: Thank you, Your Honor. [00:15:13] Speaker 02: Thank you so much. [00:15:14] Speaker 02: We'll hear from opposing counsel. [00:15:22] Speaker 00: I will start with where my opposing counsel ended with the question of when Mr. Simpson was returned to Atwater. [00:15:30] Speaker 00: And I also don't have that information. [00:15:32] Speaker 00: I will agree that it's not in the record. [00:15:34] Speaker 00: The closest thing that I found in the record is when he's appealing the district court's order at ER 103, he says that he filed immediately upon his return. [00:15:46] Speaker 00: But he did not provide that information to the district court. [00:15:48] Speaker 00: However, I think that given the [00:15:51] Speaker 00: the other allegations in the case and given Mr. Simpson's clear diligence and clear intention to timely file his 2255, that the district court should have held a hearing to ascertain exactly what counsel did or failed to do during the time [00:16:11] Speaker 00: between May on October following the entry of judgment when Mr. Simpson says that he was attempting to get the files from his counsel and counsel was unresponsive. [00:16:21] Speaker 00: And I also think that it would have been easy for the court to determine when Mr. Simpson was returned while it's not always easy for a pro se defendant to gather that documentation and present it. [00:16:33] Speaker 00: So I would say that to the extent the court has questions, the appropriate thing here would be a remand. [00:16:41] Speaker 00: I just want to push back on counsel's representation that the admitted judgment represented a clerical correction. [00:16:49] Speaker 00: That just isn't how the Supreme Court or this court has treated deferred restitution orders, where the court imposes a new amount of restitution or new victims that is not treated as a clerical error and the Supreme Court has held that the defendant has a right to appeal that order. [00:17:04] Speaker 00: So it doesn't fall within these sort of modifications that the government points to as not [00:17:11] Speaker 00: necessarily restarting the clock. [00:17:13] Speaker 00: And then the final point that I want to make is that I don't think that the appropriate ruling here would be a remand to correct the sentence. [00:17:25] Speaker 00: I don't think that that issue is before the court, and I think that would be beyond the scope of this appeal. [00:17:29] Speaker 00: So I would urge the court to hold that the petition was timely or else to remand for further factual development. [00:17:35] Speaker 02: Thank you. [00:17:36] Speaker 02: Thank you both. [00:17:37] Speaker 02: I think very advocacy will take that case under advisement and move on to the next case on the calendar.