Appeal from the United States District Court for the District of Montana Sam E. Haddon, District Judge, Presiding D.C. Nos.4:03-cr-00090-SEH 4:08-cv-00075-SEH.
The opinion of the court was delivered by: W. Fletcher, Circuit Judge
Argued and Submitted November 2, 2010-Portland, Oregon
Before: William A. Fletcher and Raymond C. Fisher, Circuit Judges, and David C. Bury, District Judge.*fn1
Federal prisoner Morris Buckles appeals the district court's dismissal of his 28 U.S.C. § 2255 motion as untimely. Buckles argues that our order recalling the mandate so that we 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. If our order restarted the clock, Buckles's petition for certiorari was timely. If the petition was timely, his subsequent § 2255 motion was timely as well. Conversely, if his petition for certiorari was untimely, so was his § 2255 motion. In the event that his § 2255 motion was untimely, Buckles contends in the alternative that misconduct by his attorney and misinformation provided by someone in the office of the Ninth Circuit Clerk entitle him to equitable tolling.
We hold that our order recalling the mandate did not restart the clock for purposes of petitioning for certiorari. Buckles's petition for certiorari and, in turn, his § 2255 motion, were therefore untimely. However, Buckles's contention that this court's Clerk provided him with inaccurate advice, if true, may entitle him to equitable tolling. We therefore vacate the dismissal of his § 2255 motion and remand for further proceedings.
After a bench trial in the District of Montana, Buckles was convicted of possession of methamphetamine with intent to distribute and possession of marijuana with intent to distribute, both in violation of 21 U.S.C. § 841(a)(1). He was sentenced to concurrent terms of 120 months. On February 12, 2007, we affirmed. United States v. Buckles, 220 F. App'x 631 (9th Cir. 2007). On March 2, 2007, 18 days after the entry of judgment, Buckles, through counsel, petitioned for panel rehearing and/or rehearing en banc. Although the petition was four days late, see Fed. R. App. P. 35(c), 40(a)(1), our Clerk exercised her discretion under General Order 6.3a to file the late petition. See Fed. R. App. P. 35(c); Adv. Comm. Note 1 to 9th Cir. R. 35-1 to 35-3; 9th Cir. Gen. Order 6.3a ("Upon motion or sua sponte, the Clerk may grant one (1) initial extension of time of no more than seven (7) calendar days for the filing of a petition for rehearing or petition for rehearing en banc in cases in which the petition must be filed within fourteen (14) days from entry of judgment."). We denied panel rehearing and rehearing en banc on April 3, 2007. The mandate issued on April 11, 2007. See Fed. R. App. P. 41(b).
Buckles, then incarcerated, sought to petition the United States Supreme Court for certiorari, but could no longer afford to pay his retained counsel. Buckles was aware of Ninth Circuit Rule 4-1(e), which provides:
In cases in which a defendant who had retained counsel . . . wishes to file a petition for writ of certiorari in the United States Supreme Court . . . and is financially unable to obtain representation for this purpose, this Court will entertain a motion for appointment of counsel within 21 days from . . . the denial of rehearing. It is the duty of retained counsel to assist the client in preparing and filing a motion for appointment of counsel and a financial affidavit under this subsection.
On April 24, 2007 - the 21st day after we denied rehearing - Buckles mailed counsel a letter "officially requesting that you assistance [sic] me in filing a motion for appointment of counsel to the Ninth Circuit so that I can have an attorney file a writ of certiorari . . . . I am making this request to you pursuant to Ninth Circuit Rule 4-1(e)." On the same day, Buckles forwarded a copy of this letter to our Clerk. On May 3, 2007, Buckles mailed our Clerk a pro se motion styled a "Supplemental Motion for Appointment of Counsel to File a Petition for Writ of Certiorari." Buckles stated in his "supple-mental motion" that he had telephoned counsel and had requested assistance in moving for appointment of counsel. Buckles stated that counsel "informed [him] that he had to check into the procedure that he would have to follow, and asked [Buckles] to check back with him later." ...