USA v. Ronald Forrester

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UNPUBLISHED OPINION FILED. [09-20423 Reversed and Remanded] Judge: CDK , Judge: FPB , Judge: JWE. Mandate pull date is 01/03/2011 [09-20423]

USA v. Ronald Forrester e: 09-20423 Cas

Document: 00511292123 Page: 1 Date Filed: 11/12/2010

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-20423 S u m m a r y Calendar November 12, 2010 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, P la in t if f -A p p e lle e v. R O N A L D BARRY FORRESTER, also known as Ron Forrester; LESLIE JANET F O R R E S T E R , also known as Leslie Janet Hocker, D e fe n d a n t s -A p p e lla n t s

A p p e a l from the United States District Court fo r the Southern District of Texas U S D C No. 4:08-CV-3215 U S D C No. 4:08-CV-3217

B e fo r e KING, BENAVIDES, and ELROD, Circuit Judges. P E R CURIAM:* R o n a ld Barry Forrester and Leslie Janet Forrester appeal the district c o u r t's dismissal of their 28 U.S.C. § 2255 motions as time barred. Their

m o t io n s challenged their 2003 convictions under 18 U.S.C. § 1001. We granted t h e m certificates of appealability as to "whether the district court erred in c a lc u la t in g the date that their § 2255 motions were due given that the Forresters

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

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Case: 09-20423 Document: 00511292123 Page: 2 Date Filed: 11/12/2010 No. 09-20423 c o n t e n d that they timely filed petitions for panel rehearing of their direct a p p e a ls ." U n d e r § 2255(f), a one-year limitations period applies to § 2255 motions. The limitations period does not begin to run until, at the earliest, "the date on w h ic h the judgment of conviction becomes final." § 2255(f)(1). The Supreme C o u r t has held that finality attaches when the Supreme Court "affirms a c o n v ic t io n on the merits on direct review or denies a petition for a writ of c e r t io r a r i, or when the time for filing a certiorari petition expires." Clay v. U n ite d States, 537 U.S. 522, 527 (2003). Under Supreme Court Rule 13(3), the 9 0 -d a y period to file a petition for a writ of certiorari from the judgment of a c o u r t of appeals ordinarily runs from the date that the court issues an opinion a n n o u n c in g the ruling. United States v. Petty, 530 F.3d 361, 365 (5th Cir. 2008). However, if a petition for rehearing is timely filed in the appeals court by any p a r ty , then the time for all parties to file a certiorari petition runs from the date o f the denial of rehearing. SUP. CT. R. 13(3). I n this case, we affirmed the Forresters' convictions on July 17, 2007. United States v. Forrester, 234 F. App'x 320, 320 (5th Cir. 2007). Less than 14 d a y s later, Ronald Forrester timely filed a petition for panel rehearing on July 3 0 , 2007. See FED. R. APP. P. 40(a)(1). We denied his petition on August 14, 2 0 0 7 , and the time period for all parties to seek certiorari did not end until 90 d a y s thereafter on November 13, 2007. See SUP. CT. R. 13(3); see also SUP. CT. R . 30(1) (excluding the last day of the period if it is a federal holiday). The F o r r e s te r s timely filed their § 2255 motions less than one year after that date on O c t o b e r 28, 2008. See Clay, 537 U.S. at 527. Accordingly, we REVERSE the district court's dismissal of the Forresters' § 2255 motions as time barred and REMAND their cases to the district court for fu r t h e r proceedings.

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