Paulo Hilel v. USA, No. 11-10987 (11th Cir. 2011)
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[DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT FILED ________________________ U.S. COURT OF APPEALS No. 11-10987 Non-Argument Calendar ________________________ ELEVENTH CIRCUIT OCTOBER 25, 2011 JOHN LEY CLERK D.C. Docket Nos. 9:11-cv-80141-DTKH 9:07-cr-80114-DTKH PAULO HENRIQUE HILEL, llllllllllllllllllllllllllllllllllllllll Petitioner-Appellant, versus UNITED STATES OF AMERICA, llllllllllllllllllllllllllllllllllllllll Respondent-Appellee. ________________________ Appeal from the United States District Court for the Southern District of Florida ________________________ (October 25, 2011) Before TJOFLAT, CARNES and FAY, Circuit Judges. PER CURIAM: While the district court s ruling denying petitioner s motion for a new trial, see Fed. R. Crim. P. 33, was pending in this court on appeal, petitioner moved the district court pursuant to 28 U.S.C. § 2255 for relief from his conviction for conspiring to commit alien smuggling. Over petitioner s and the Government s objection, the district court dismissed petitioner s § 2255 motion without prejudice. (We subsequently affirmed the district court s Rule 33 ruling, United States v. Hilel, 352 Fed. App x 378 (11th Cir. 2009).) Pursuant to § 2255, a defendant has one year from, inter alia, the date that his conviction became final, to file a § 2255 motion to vacate. 28 U.S.C. § 2255(f)(1). In this case (as in all court of appeals affirmances of convictions), the petitioner had 90 days following our affirmance of his conspiracy conviction to petition the Supreme Court for a writ of certiorari to review our decision. He did not petition the Court for the writ, so his conviction became final after this 90days period expired. Kaufmann v. United States, 282 F.3d 1336, 1338 (11th Cir. 2002). Under Rule 33, upon a defendant s motion, the court may vacate any judgment and grant a new trial if the interest of justice so requires. Fed.R.Crim.P. 33(a). Filing a Rule 33 motion for new trial is not considered an extension of the direct appeal, and does not toll the § 2255(f)(1) one-year limitations period for filing a § 2255 motion. Barnes v. United States, 437 F.3d 1079 (11th Cir. 2006). 2 As both parties agree, the dismissal without prejudice here had the effect of a dismissal with prejudice, because of the impact of the § 2255(f)(1) time-bar. Given this consequence, the court should have stayed proceedings on the § 2255 motion until the Rule 33 proceeding was resolved. We therefore Vacate the district court s judgment of dismissal and REMAND the case for further consideration of petitioner s § 2255 motion. VACATED AND REMANDED. 3
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