Rainwater Law Group

Effective Criminal Defense

United States v. Gilbert No. 13-36006 [December 7, 2015]

United States v. Gilbert

Appeal from the denial of a 2255 motion as time barred. Gilbert claims that his reliance on bad advice from his counsel was good cause for failing to timely file his 2255 motion. The Court held that “a judgment that includes a sentence but leaves the amount of restitution open is sufficiently final for appellate purposes.” Therefore, the 1-year statute begins to run from the date the direct appeal time expires. The Court further 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 § 2255 motion does not restart when the specific amount of restitution is later entered.” The Court finally held that Gilbert waived his equitable tolling claim [because he did not raise it below] and that even if he did not waive his claim it was without merit. “Assuming that Gilbert’s counsel did give erroneous advice on the filing deadline, this is not the kind of extraordinary circumstance that compels equitable tolling.

blog comments powered by Disqus