UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 98-50356
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
RENE GARZA BOTELLO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
(SA-92-CR-207)
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September 24, 1999
Before REYNALDO G. GARZA, HIGGINBOTHAM, and DAVIS, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Rene Garza Botello appeals the district
court’s dismissal of his 28 U.S.C. § 2255 motion as time-barred
under the Antiterrorism and Effective Death Penalty Act (“AEDPA”).
Botello contends that the district court abused its discretion in
three respects: 1. by acting without jurisdiction in reversing its
prior interlocutory order granting Botello’s motion to file a late
§ 2255 motion; 2. by allowing the government to relitigate the
issue of whether there were “extraordinary circumstances”
sufficient to toll the one year period of limitation in
*
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opinion should not be published and is not precedent except under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.
§ 2244(d)(1) of the AEDPA; and, 3. in finding that the
“extraordinary circumstances” test under the AEDPA was not met and
by dismissing Botello’s § 2255 motion as time-barred. For the
reasons that follow, we vacate the order of the district court and
remand for consideration of whether sufficient extraordinary
circumstances occurred after the adoption of the AEDPA to warrant
equitable tolling of the one year period of limitation.
I.
Botello was convicted by a federal jury in March 1993 of
conspiring to possess cocaine with intent to distribute,
possessing cocaine with intent to distribute, and using a person
under 18 years of age to avoid detection and apprehension. The
district court sentenced Botello to serve concurrent 115-month
terms of imprisonment on all three counts, plus concurrent
supervised release terms and fines. Botello appealed the
convictions, which this court affirmed in an unpublished opinion.
On April 9, 1997, as the one year deadline under the AEDPA
for filing a 28 U.S.C. § 2255 motion approached, Botello filed a
motion for enlargement of time, pursuant to Fed. R. Crim. P. 45
(b). As grounds, Botello argued that he was now pro se because
his lawyer had committed suicide, that he had been moved from one
prison to another, and that he had been subject to administrative
segregation, preventing him from completing his § 2255 motion.
The district court denied the request in April 1997, incorrectly
concluding that the one year statute of limitations under the
AEDPA did not apply to § 2255 motions. Botello appealed.
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In July 1997, Botello sought leave to file a late § 2255
motion, asserting “extraordinary circumstances” to justify
tolling the limitations period under the AEDPA. These
circumstances included the suicide of his attorney, inability to
obtain his deceased attorney’s work product, and the removal of
legal papers from his custody by prison officials. The district
court granted the motion, finding that “the request is well
taken” without further explanation. Botello then voluntarily
dismissed his appeal of the denial of his motion for enlargement
of time.
Botello’s newly retained counsel filed a § 2255 motion, and
the district court ordered the Government to file a response. In
its response, the Government argued that Botello’s motion was
time-barred under the AEDPA. In April 1998, the district court
dismissed the motion as time-barred. The district court granted
a Certificate of Appealability, and this appeal followed.
II.
A.
Botello first argues that the district court abused its
discretion in acting without jurisdiction to reverse its
interlocutory order granting Botello’s motion to file a late s.
2255 motion. He contends that the interlocutory order was not
reviewable. We disagree. So long as a district court has
jurisdiction over a case, it retains power to reconsider,
rescind, or modify an interlocutory order. Melancon v. Texaco,
659 F.2d 551, 553 (5th Cir. 1981). Thus, the district court did
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not err in asserting jurisdiction to modify an interlocutory
order.
B.
Botello next argues that the district court erred in
allowing the Government to relitigate the issue of whether there
were “extraordinary circumstances” sufficient to toll the one
year period of limitation in § 2244(d)(1) of the AEDPA.
Specifically, he argues that the Government’s failure to oppose
Botello’s July 1997 motion to file a late § 2255 motion based on
“extraordinary circumstances” bars it from relitigating the issue
under the doctrine of collateral estoppel.
Even if the issue of “extraordinary circumstances” was fully
and fairly litigated by the district court, the district court’s
order granting Botello leave to file a late § 2255 motion was an
interlocutory order. Such a non-final order is unreviewable and
is also subject to modification by the district court. As such,
collateral estoppel cannot apply to bar relitigation of the issue
decided in such an order. Thus, the district court did not err
in allowing the Government to relitigate the “extraordinary
circumstances” issue.
C.
Finally, Botello argues that the district court abused its
discretion in finding that the “extraordinary circumstances” test
was not met and by dismissing Botello’s § 2255 motion as time-
barred. In Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998),
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this court held that the one-year period of limitation in §
2244(d)(1) of the AEDPA is subject to equitable tolling “in rare
and exceptional circumstances.”
The district court, in finding that no “extraordinary
circumstances” existed in this case, focused almost exclusively
on the opportunities available to Botello before the enactment of
the AEDPA. It noted that Botello did not attempt to prepare and
file his § 2255 motion until after the district court denied his
motion for a new trial, more than a year after this court
affirmed his conviction. Moreover, it found that Botello
retained his attorney in January 1994, and the attorney did not
commit suicide until June 1996, during which time there was ample
opportunity to prepare the § 2255 motion.
We agree with the district court that Botello had ample
opportunity before the enactment of the AEDPA to prepare and file
a § 2255 motion. But Botello was under no serious time
constraints before AEDPA’s adoption. Therefore, in deciding
whether “extraordinary circumstances” exist that are sufficient
to toll the one year limitations period, we must consider
circumstances that occured after enactment of the AEDPA.
Botello alleged facts that - if accepted by the district
court - established “extraordinary circumstances.” His attorney
committed suicide almost immediately after the AEDPA came into
effect. Also, Botello could not obtain access to his attorney’s
work product, and he often lacked access to his own legal
materials.
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We must therefore remand this case to the district court to
consider the circumstances Botello relies upon that occurred
after the enactment of the AEDPA and determine which of these
facts it accepts as true and whether these facts are sufficient
to toll the one year limitations period for filing a § 2255
motion.
III.
For the reasons stated above, we VACATE the district court’s
dismissal of Botello’s § 2255 motion and REMAND for consideration
of whether sufficient extraordinary circumstances occurring after
the enactment of the AEDPA exist to toll the one year period of
limitations to file a § 2255 motion. If the district court
answers this question in the affirmative it should then consider
the merits of Botello’s petition.
Vacated and remanded.
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