USA v. Ronald Forrester, No. 09-20423 (5th Cir. 2010)
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Case: 09-20423 Document: 00511292123 Page: 1 Date Filed: 11/12/2010 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED No. 09-20423 Summary Calendar November 12, 2010 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. RONALD BARRY FORRESTER, also known as Ron Forrester; LESLIE JANET FORRESTER, also known as Leslie Janet Hocker, Defendants-Appellants Appeal from the United States District Court for the Southern District of Texas USDC No. 4:08-CV-3215 USDC No. 4:08-CV-3217 Before KING, BENAVIDES, and ELROD, Circuit Judges. PER CURIAM:* Ronald Barry Forrester and Leslie Janet Forrester appeal the district court s dismissal of their 28 U.S.C. § 2255 motions as time barred. Their motions challenged their 2003 convictions under 18 U.S.C. § 1001. We granted them certificates of appealability as to whether the district court erred in calculating 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. Case: 09-20423 Document: 00511292123 Page: 2 Date Filed: 11/12/2010 No. 09-20423 contend that they timely filed petitions for panel rehearing of their direct appeals. Under § 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 which the judgment of conviction becomes final. § 2255(f)(1). The Supreme Court has held that finality attaches when the Supreme 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). Under Supreme Court Rule 13(3), the 90-day period to file a petition for a writ of certiorari from the judgment of a court of appeals ordinarily runs from the date that the court issues an opinion announcing 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 party, then the time for all parties to file a certiorari petition runs from the date of the denial of rehearing. S UP. C T. R. 13(3). In 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 days later, Ronald Forrester timely filed a petition for panel rehearing on July 30, 2007. See F ED. R. A PP. P. 40(a)(1). We denied his petition on August 14, 2007, and the time period for all parties to seek certiorari did not end until 90 days thereafter on November 13, 2007. See S UP. C T. R. 13(3); see also S UP. C T. R. 30(1) (excluding the last day of the period if it is a federal holiday). The Forresters timely filed their § 2255 motions less than one year after that date on October 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 further proceedings. 2
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