United States v. Buckle, No. 08-36031 (9th Cir. 2011)
Annotate this CaseDefendant appealed the district court's dismissal of his 28 U.S.C. 2255 motion as untimely. Defendant argued that the court's order recalling the mandate, so that it could consider his motion for appointment of certiorari counsel, restarted the clock for the 90-day period within which he was required to petition the Supreme Court for certiorari review of his conviction on direct appeal. Defendant also argued, in the alternative, that misconduct by his attorney and misinformation provided by someone in the office of the Ninth Circuit Clerk entitled him to equitable tolling. The court held that its order recalling the mandate did not restart the clock for purposes of petitioning for certiorari and therefore, defendant's petition for certiorari and his section 2255 motion were untimely. The court held, however, that defendant's contention that the court's clerk provided him with inaccurate advice, if true, could entitle him to equitable tolling. Accordingly, the court vacated the dismissal of the section 2255 motion and remanded for further proceedings.
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