United States v. Gilbert, No. 13-36006 (9th Cir. 2015)Annotate this Case
Defendant pleaded guilty to multiple counts of the production of child pornography, transportation of a minor to engage in illegal sexual activity, and obstruction of justice. Defendant subsequently appealed the district court's denial of his 28 U.S.C. 2255 motion as time barred. Under section 2255(f), there is a one-year period of limitation to file a collateral attack on a federal conviction that runs from the latest of four events, including the date on which the judgment of conviction becomes final. The court held that when a judgment imposes a sentence but leaves the amount of restitution to be determined, the one-year statute of limitations to file a section 2255 motion does not restart when the specific amount of restitution is later entered. In this case, defendant waived his claim for equitable tolling. Even assuming defendant's counsel did give erroneous advice on the filing deadline, this is not the kind of extraordinary circumstance that compels equitable tolling. Accordingly, the court affirmed the judgment.