Torrence Gillis v. USA
OPINION and JUDGMENT filed: The judgment of the district court is AFFIRMED. Decision for publication. Eugene E. Siler, Jr. and John M. Rogers (AUTHORING), Circuit Judges; William O. Bertelsman, U.S. District Judge for the Eastern District of Kentucky, sitting by designation. *Pursuant to the opinion correction letter of 9/9/13, the opinion attached to this entry has been corrected.--[Edited 09/09/2013 by CL]
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 13a0267p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Appeal from the United States District Court
for the Northern District of Ohio at Cleveland.
Nos. 1:11-cv-01039; 1:06-cr-00290-12—Patricia A. Gaughan, District Judge.
Decided and Filed: September 9, 2013
Before: SILER and ROGERS, Circuit Judges; BERTELSMAN, District Judge.*
ON BRIEF: Edward F. Feran, UNITED STATES ATTORNEY’S OFFICE, Cleveland,
Ohio, for Appellee. Torrence Gillis, Bruceton Mills, West Virginia, pro se.
ROGERS, Circuit Judge. This appeal, brought by a prisoner proceeding pro se,
involves a series of delayed and untimely filings. Even though Torrence Gillis did not
file his appeal for 201 days, there is appellate jurisdiction because when a district court
fails to issue a separate judgment in denying a 28 U.S.C. § 2255 motion, a petitioner
effectively has 210 days to submit an appeal. However, the district court properly
dismissed Gillis’s § 2255 motion as time-barred under § 2255(f).
The Honorable William O. Bertelsman, United States District Judge for the Eastern District of
Kentucky, sitting by designation.
Gillis v. United States
In 2007, a jury convicted Torrence Gillis of possession with intent to distribute
4.12 grams of crack cocaine within 1,000 feet of a school, in violation of 21 U.S.C.
§§ 841(a)(1), (b)(1)(C), and 860(a). United States v. Gillis, 592 F.3d 696, 697–98
(6th Cir. 2009).
The district court initially sentenced him to 262 months of
imprisonment and six years of supervised release. Id. That judgment was reversed on
direct appeal, and the case was remanded for further proceedings concerning the
application of the career-offender provisions of the sentencing guidelines. Id. at 699.
On December 10, 2009, the district court resentenced Gillis to 191 months of
imprisonment and six years of supervised release. Gillis wrote to his attorney on
December 22, 2009 and June 9, 2010, describing the arguments he wished to make on
direct appeal and asking about the status of his appeal. Gillis also wrote to the Clerk of
Court on June 9, 2010, requesting an updated docket sheet and status of his appeal. On
June 20, 2010, nearly six months after the deadline to appeal his resentencing, Gillis
wrote to the district judge, and in his letter acknowledged that his resentencing appeal
had not been timely filed and requested that the court permit his late appeal. His
attorney filed a belated notice of appeal of Gillis’s resentencing on August 6, 2010. A
panel of this court dismissed that appeal because it was untimely filed. United States v.
Gillis, No. 10-3953 (6th Cir. Jan. 24, 2011) (unpublished order).
On May 20, 2011, Gillis filed a pro se motion to correct, vacate, or set aside his
sentence under § 2255. He alleged that he had been denied the effective assistance of
counsel because his attorney did not timely file an appeal from the resentencing
judgment. The Government moved to dismiss the motion as untimely and Gillis did not
respond. The district court agreed with the Government and dismissed the case on
September 9, 2011, because Gillis had not filed his § 2255 motion within the applicable
one-year limitation period prescribed by § 2255(f). United States v. Gillis, No. 1:06 CR
290, 2011 WL 4007398, at *1 (N.D. Ohio Sept. 9, 2011).
Gillis appealed the denial of his § 2255 motion on March 28, 2012. He was
directed to show cause why the appeal should not be dismissed due to lateness. That
issue was referred to the hearing panel and briefing was ordered on all the issues in the
Gillis v. United States
case. In addition, the Government has filed a motion to dismiss Gillis’s appeal as
untimely and Gillis has filed several miscellaneous motions, including a motion for leave
to proceed in forma pauperis on appeal.
Because there was no separate judgment, this appeal from the denial of Gillis’s
§ 2255 motion was timely filed. Gillis’s appeal was filed 201 days after the district court
denied the § 2255 motion. Generally, petitioners have 60 days to appeal from the denial
of a § 2255 motion, see Fed. R. App. P. 4(a)(1)(B) and Rule 11(b) of the Rules
Governing § 2255 Proceedings for the United States District Courts (Habeas Rules), but
Gillis had 210 days to file his appeal because the district court failed to enter a separate
judgment, as required by Federal Rule of Civil Procedure 58(a).
Gillis had sixty days to file his appeal from the time the judgment was entered.
See Fed. R. App. P. 4(a)(1)(B). However, the district court’s judgment was not
considered “entered” until February 6, 2012—150 days after it denied the § 2255
motion—because Federal Rule of Appellate Procedure 4(a)(7) defines a judgment as
entered 150 days after entry in the civil docket in the absence of a separate judgment
required under Civil Rule 58(a). Fed. R. App. P. 4(a)(7)(A)(ii). Civil Rule 58(a)
requires a separate judgment for all decisions or orders, except for those made pursuant
to Civil Rules 50(b), 52(b), 54, 59 or 60, see Fed. R. Civ. P. 58(a), none of which applies
to Gillis’s motion. Because the district court denied Gillis’s motion in a “Memorandum
of Opinion and Order,” and did not enter a separate judgment as required under
Appellate Rule 4(a)(7) and Civil Rule 58(a), Gillis had 210 days—the 150 days
mandated by Appellate Rule 4(a)(7), plus the standard 60-day window provided by
Appellate Rule 4(a)(1)(B)—to file his appeal. Because Gillis filed his appeal within the
210-day window, his appeal was timely.
Many of our sister circuits have similarly recognized that Civil Rule 58(a), in
conjunction with Appellate Rule 4(a) and the Habeas Rules, requires a separate
judgment in habeas proceedings, and therefore permits a petitioner 210 days to file an
appeal when no separate judgment is entered. See, e.g., United States v. Batton, No. 138017, 2013 WL 2435357, at *1 (10th Cir. June 5, 2013); United States v. Braddy, 372 F.
Gillis v. United States
App’x 405, 406 (4th Cir. 2010); Perez v. United States, 277 F. App’x 966, 967–68
(11th Cir. 2008); United States v. Fiorelli, 337 F.3d 282, 286 (3d Cir. 2003); United
States v. Johnson, 254 F.3d 279, 283–84 (D.C. Cir. 2001). One circuit has stated that
because of the quasi-criminal nature of a § 2255 motion, Civil Rule 58(a) does not apply,
and therefore a petitioner only has 60 days to appeal under Appellate Rule 4(a)(1)(B),
regardless of whether a separate judgment was entered. See Williams v. United States,
984 F.2d 28, 29–31 (2d Cir. 1993). However, Habeas Rule 11(b) states that Appellate
Rule 4(a) governs the time to appeal, and Appellate Rule 4(a), in turn, defines the entry
of a judgment with reference to Civil Rule 58(a). Therefore, when a district court fails
to enter a separate judgment when denying a § 2255 motion, a petitioner has 210 days
to file an appeal, and the instant appeal is timely.
While the lack of a separate order gave Gillis an additional six months to file his
appeal from the denial of his § 2255 motion, the rules are not so lenient with regard to
the timeliness of his § 2255 motion in the first place. The motion was filed more than
sixteen months after the claim accrued. The district court accordingly properly
dismissed the § 2255 motion as time-barred, because it was filed after the one-year
statute of limitations prescribed by the Antiterrorism and Effective Death Penalty Act
of 1996 (AEDPA).
Gillis was resentenced on December 10, 2009, and the time for filing a notice of
appeal expired on December 26, 2009. Over sixteen months later, on May 20, 2011,
Gillis moved to vacate the judgment under 28 U.S.C. § 2255, arguing ineffective
assistance of counsel in not filing an appeal until August of 2010. The § 2255 motion
contained no argument concerning the timeliness of the § 2255 motion itself. On June
13, 2011, the Government moved to dismiss the § 2255 motion as untimely. There was
no response from Gillis when the district court almost three months later granted the
motion to dismiss, reasoning as follows:
Under Fed.R.App.P. 4(b)(1), defendant had 14 days from the
entry of the Judgment issued on December 12, 2009, in which to file his
notice of appeal. Defendant did not file a timely notice of appeal. Since
Gillis v. United States
he did not pursue a timely direct appeal, his conviction became final on
December 26, 2009.
Gillis had one year, or until December 26, 2010, within which to
file his § 2255 motion. Defendant did not file his motion until May 20,
2011. As such, the motion is untimely. Gillis makes no argument to the
Gillis, 2011 WL 4007398, at *1 (footnotes omitted). Gillis filed nothing further until six
months later, when he sent a letter to the court almost totally devoted to arguing the
ineffectiveness of his counsel in not filing an appeal from his resentencing. One
sentence, however, addressed the court’s § 2255-untimeliness reasoning:
[T]he AEDPA as amended to § 2255 provides a one-year limitation
period shall run from the date on which the judgment of conviction
became final which was on January 25, 2011, when my appeal was
dismiss[ed] as untimely which show[s] that my one-year limitation would
extend to January 25, 2012.
The letter was apparently treated by the district court as a motion for reconsideration,
and denied by a margin entry order “for the same reasons as stated in this court’s order
Thus the only argument brought to the district court’s attention with respect to
the timeliness of the § 2255 motion was that the limitation period should have run from
when Gillis’s untimely appeal was dismissed. This argument is facially without merit.
A conviction becomes final when the time for direct appeal expires and no appeal has
been filed, not when an untimely appeal is dismissed. See Sanchez-Castellano v. United
States, 358 F.3d 424, 427 (6th Cir. 2004). If the one-year AEDPA statute of limitations
could be extended by filing a late notice of appeal and getting that late appeal dismissed,
there would not be much left to the statute of limitations.
No other argument has been made to the district court or to us regarding the
timeliness of the § 2255 motion, and we need not address hypothetical arguments Gillis
might have made. In particular, Gillis does not argue that under § 2255(f)(4) the time
ran not from when his resentencing could no longer be appealed, but from some later
date, one before which he could not have discovered the factual predicate for his habeas
Gillis v. United States
claim through the exercise of due diligence. Presumably that date would be when he
could have discovered with due diligence that his direct appeal had not been filed. Gillis
has presented no facts, below or here, as to what that date would be. Such a showing is
required. Bey v. Capello, No. 11-1902, 2013 WL 1924870, at *3 (6th Cir. May 10,
2013) (citing DiCenzi v. Rose, 452 F.3d 465, 471 (6th Cir. 2006)).
Nor does Gillis argue for equitable tolling, which in any event would have
required showing that he has pursued his rights diligently and that an extraordinary
circumstance stood in the way of his timely filing a § 2255 motion. Holland v. Florida,
130 S. Ct. 2549, 2562 (2010); see also Hall v. Warden, Lebanon Corr. Inst., 662 F.3d.
745, 749 (6th Cir. 2011). Such showings would have been difficult for Gillis to make
in this case.
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