IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 4, 2009
No. 08-60195
Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
STARSKY DARNELL REDD,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Mississippi
Before DAVIS, SMITH, and OWEN, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Starsky Redd appeals the determination that his 28 U.S.C. § 2255 motion
is time-barred. We affirm.
I.
Redd was found guilty and sentenced. He filed a notice of appeal in May
2002, and in July 2002 he filed a Federal Rule of Criminal Procedure 33 motion
No. 08-60195
for a new trial. The district court denied the motion in September 2002, because
Redd had already filed his appeal. Redd appealed that decision, and that appeal
was consolidated with his initial, direct appeal.
In December 2003, this court affirmed Redd’s conviction and sentence but
found the new trial issue was properly before the district court and ordered that
court to examine the motion on its merits. United States v. Redd, 355 F.3d 866
(5th Cir. 2003). Redd sought no petition for writ of certiorari.
The district court denied Redd’s motion for a new trial, and this court af-
firmed. United States v. Redd, No. 04-60661, 2005 WL 1926523 (5th Cir. Aug.
12, 2005). On August 4, 2006, Redd filed his certiorari petition, which the Su-
preme Court denied. Redd v. United States, 549 U.S. 930 (2006).
In November 2006, Redd filed a § 2255 motion to vacate his conviction and
sentence. The district court found that the motion was time-barred, and Redd
appeals.
II.
We review the district court’s factual findings relating to a § 2255 motion
for clear error and its conclusions of law de novo. United States v. Plascencia,
537 F.3d 385, 388 (5th Cir. 2008) (citing United States v. Torres, 163 F.3d 909,
911 (5th Cir. 1999)). The district court’s reason for dismissing Redd’s § 2255 mo-
tion as time-barred is that it was filed more than one year after Redd had failed
to petition for certiorari in his initial case before this court. Redd claims the dis-
trict court erred in saying that his rule 33 motion for a new trial did not toll limi-
tations for his § 2255 motion. In the alternative, he contends that equitable toll-
ing was warranted for his § 2255 motion and that the government waived the
limitations defense by failing to raise it.
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No. 08-60195
A.
Section 2255(f)(1) provides Redd with a one-year period in which to file his
motion, running from “the date on which the judgment of conviction becomes
final.”1 For § 2255(f)(1), “[f]inality attaches when this Court affirms a conviction
on the merits on direct review or denies a petition for a writ of certiorari, or
when the time for filing a certiorari petition expires.” Clay v. United States, 537
U.S. 522, 527 (2003) (citations omitted). The question before us is on what date
Redd’s conviction became final for purposes of § 2255(f)(1). The government ar-
gues that finality attached ninety days after Redd failed to petition timely for a
writ of certiorari.2 Redd argues that his rule 33 motion for new trial tolled
§ 2255’s limitations and, therefore, because he filed his § 2255 motion within one
year of the denial of his petition for certiorari that was filed to contest the denial
of his rule 33 motion, his § 2255 motion was timely.3
Although this court has never considered whether the pendency of a rule
33 motion tolls § 2255’s limitations, every other circuit to examine the issue has
decided, as a general proposition, that there is no tolling. The first decision to
address the issue was United States v. Prescott, 221 F.3d 686 (4th Cir. 2000).
There, the defendant appealed his conviction, then filed his rule 33 motion, but
the district court denied the motion after the court of appeals had affirmed the
conviction. Id. at 687. After the rule 33 motion was denied, the defendant ap-
1
There are three other grounds under § 2255 that can trigger the running of the one-
year limitations period, but none of those grounds applies. See 28 U.S.C. § 2255(f)(2)-(4).
2
The ninety-day period stems from the Supreme Court rule that “a petition for a writ
of certiorari . . . is timely when it is filed . . . within 90 days after entry of judgment.” SUP . CT .
R. 13.1.
3
Even though Redd filed his certiorari petition more than ninety days after this court
had affirmed the denial of his rule 33 motion, the fact that the Supreme Court considered and
denied the petition started the statute of limitations from the date of the denial of the writ.
“Finality attaches when this Court . . . denies a petition for a writ of certiorari . . . .” Clay, 537
U.S. at 527.
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No. 08-60195
pealed that decision, and the court of appeals again affirmed. Id. The defendant
believed that § 2255’s limitations began to run only after his second appeal was
denied. Id. He argued that a ruling in the alternative would eviscerate rule 33
and clog appellate dockets. Id. at 688.
The circuit disagreed, concluding that rule 33 offers benefits to prisoners
that § 2255 does not provide, such as a more favorable standard of review, and
that district courts are easily capable of hearing both rule 33 and § 2255 motions
without overloading their dockets. Id. at 688-89. The court also noted that Con-
gress’s addition of state prisoner habeas review in 28 U.S.C. § 2254(d)(2) showed
that Congress knew it could have inserted language tolling a § 2255 petition for
a rule 33 motion but decided not to do so. Id. at 689. The court then held that
rule 33 motions for a new trial do not toll § 2255 limitations.
At least three other circuits have held that the filing of a rule 33 motion
does not toll limitations for § 2255. See Barnes v. United States, 437 F.3d 1074,
1079 (11th Cir. 2006); Trenkler v. United States, 268 F.3d 16, 22 (1st Cir. 2001);
Johnson v. United States, 246 F.3d 655, 657 (6th Cir. 2000).4 “A Rule 33 motion
based on new evidence and filed after the 10-day period for filing a notice of ap-
peal must be treated as a collateral challenge for the purpose of the limitation
period of 28 U.S.C. § 2255 for habeas relief.” 26 J AMES W. M OORE ET AL.,
M OORE’S F EDERAL P RACTICE § 633.30[3], at 633-63 (3d ed. 2008) (citing Johnson,
246 F.3d at 659-60).
Thus, a delayed rule 33 motion “does not prevent a judgment of conviction
from becoming final” for § 2255 purposes. Id. We agree with our sister circuits
and the cited leading treatise: A rule 33 motion filed more ten days after the
4
In addition, in O’Connor v. United States, 133 F.3d 548, 551 (7th Cir. 1998), the court
did not examine this precise issue but found that a district court could consider a § 2255 mo-
tion while an appeal was pending for a new trial.
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No. 08-60195
entry of judgment 5 does not toll § 2255’s one-year statute of limitations, because
it is a collateral attack and not a direct appeal. See Johnson, 246 F.3d at 657.
Redd claims, however, that he can prevail even though we have adopted
the holding of the other circuits. Redd argues that a defendant should be able
to file a rule 33 motion “shortly after” filing a notice of appeal and be allowed to
wait until the rule 33 motion has been decided before § 2255’s statute of limita-
tions begins to run. He claims that such a situation would be different from al-
lowing rule 33’s three-year limitations period to run before starting the running
of § 2255’s limitations.6
Redd’s proposed tolling ruleSSallowing tolling for someone who files a rule
33 motion “shortly after” convictionSShas no basis in the text of rule 33 or Feder-
al Rule of Appellate Procedure 4(b). “Shortly after” would have no bounds and
would have to be extended to the three-year limitations contained in rule 33. In
addition, Redd never argues that those rule 33 motions would be considered
collateral attacks as distinguished from direct appeals. Because his suggested
reading of rule 33 and § 2255 has no basis in plain text and would work to ex-
tend limitations for § 2255 to effectively three years, we reject it.
Redd also contends that failure to adopt his reading of rule 33 and
§ 2255(f) would lead to a litany of problems, including piecemeal litigation and
potential conflict with counsel. Compelling policy, however, cannot overcome the
plain language of rules and statutes.7 Moreover, litigation does not need to be
5
See FED . R. APP . P. 4(b) (“In a criminal case, a defendant’s notice of appeal must be
filed in the district court within 10 days after the later of: (i) the entry of either the judgment
or the order being appealed . . . .”).
6
See FED . R. CRIM . P. 33(b)(1) (“Any motion for a new trial grounded on newly discov-
ered evidence must be filed within 3 years after the verdict or finding of guilty.”).
7
Cf. Sobranes Recovery Pool I, LLC v. Todd & Hughes Constr. Corp., 509 F.3d 216, 227
(5th Cir. 2007) (“However attractive these policies are, they find no home in the plain language
of the statute. Although Congress is free to amend the statute to effectuate these policy con-
(continued...)
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No. 08-60195
piecemeal, because district courts are well equipped to consider both Rule 33 and
§ 2255 and can also consolidate the motions to avoid that pitfall. See Prescott,
221 F.3d at 689. The problems Redd raises in regard to ineffective assistance of
counsel on rule 33 motions can also be solved by having the district court stay
the § 2255 motion until the rule 33 issue is litigated. Thus, if counsel were inef-
fective on the rule 33 motion, that could be addressed later if relevant to an inef-
fective-assistance-of-counsel claim. In the end, these matters are left to the
sound discretion of the district courts in managing their dockets, and we need
not lay down any specific directions.
B.
Redd also argues that limitations on his § 2255 motion should be equitably
tolled. Normally, “[a] district court’s decision with respect to equitable tolling
is reviewed for abuse of discretion.” United States v. Wynn, 292 F.3d 226, 229-30
(5th Cir. 2002) (citation omitted). Redd, however, failed to present this issue to
the district court, so we review only for plain error. See United States v. Zuniga-
Amezquita, 468 F.3d 886, 887 n.2 (5th Cir. 2006). This rule applies to litigants
who fail to argue equitable tolling in the district court.8
To establish plain error, Redd is required to show that “(1) there was error,
(2) the error was plain, (3) the error affected his ‘substantial rights,’ and (4) the
error seriously affected ‘the fairness, integrity or public reputation of judicial
proceedings.’” United States v. Jones, 489 F.3d 679, 681 (5th Cir. 2007) (quoting
United States v. Olano, 507 U.S. 725, 732 (1993)). Equitable tolling requires
7
(...continued)
cerns, we are not.”).
8
See Outler v. United States, 485 F.3d 1273, 1283 n.5 (11th Cir. 2007) (applying plain
error to equitable tolling that was raised for first time on appeal), cert. denied, 128 S. Ct. 1443
(2008); Sanders v. Louisiana, 208 F.3d 1006 (5th Cir. 2000) (table) (using plain error review
for first-time appellate review of whether § 2254 motion was time-barred).
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No. 08-60195
that Redd show “‘(1) that he has been pursuing his rights diligently, and (2) that
some extraordinary circumstance stood in his way’ of timely filing his § 2255
motion.” United States v. Petty, 530 F.3d 361, 365 (5th Cir. 2008) (quoting
Lawrence v. Florida, 549 U.S. 327, 336 (2007)). It is permitted only in “rare and
exceptional circumstances.” Id. at 364 (citation omitted).
Two of Redd’s actions undercut his claim that he was pursuing his rights
diligently. First, his certiorari petition regarding his rule 33 motion was filed
nearly a year after this court affirmed the ruling on the motion. That is well
past the ninety-day limit and shows that Redd did not act diligently to preserve
rights. See S UP. C T. R. 13.1. In addition, Redd’s § 2255 motion never implicated
any of the litigation regarding the rule 33 motion. Redd filed the motion almost
three years after this court had denied his direct appeal, too long a period for us
to find plain error.
C.
Redd argues that the government waived its timeliness defense to the
§ 2255 motion by relegating the issue to a footnote in its initial brief. Redd rea-
sons that United States v. Charles, 469 F.3d 402 (5th Cir. 2006), stands for the
proposition that issues set forth in footnotes are insufficient to raise an issue for
review. In Charles, however, we said only that “[a] single conclusory sentence
in a footnote is insufficient to raise an issue for review.” Id. at 408 (citing Beaz-
ley v. Johnson, 242 F.3d 248, 270 (5th Cir. 2001)).
The government here submitted, instead, several sentences complete with
citations to 28 U.S.C. § 2255, references to the one-year statute of limitations,
and a citation to United States v. Thomas, 203 F.3d 350, 356 (5th Cir. 2000),
which discusses this statute of limitations. Although all of that was presented
in a footnote, it was enough to put Redd on notice of the issue.
AFFIRMED.
7