Nicholas Borgesano v. United States

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       USCA11 Case: 20-11453   Date Filed: 07/09/2021   Page: 1 of 14



                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 20-11453
                        Non-Argument Calendar
                      ________________________

                D.C. Docket No. 8:19-cv-01604-JSM-JSS


NICHOLAS BORGESANO,


                                                         Petitioner-Appellant,


                                 versus


UNITED STATES OF AMERICA,


                                                        Respondent-Appellee.

                      ________________________

               Appeal from the United States District Court
                   for the Middle District of Florida
                     ________________________

Before NEWSOM, BRANCH, and ANDERSON, Circuit Judges.

PER CURIAM:
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      Nicholas Borgesano, a federal prisoner, appeals the district court’s dismissal

of his 28 U.S.C. § 2255 motion to vacate sentence as untimely. We granted a

certificate of appealability (“COA”) on the issue of “[w]hether the district court

erred in dismissing Borgesano’s 28 U.S.C. § 2255 motion to vacate, set aside, or

correct his sentence as untimely.” Borgesano argues that his § 2255 motion was

timely because the trial court amended the judgment in his criminal case to include

a copy of the preliminary order of forfeiture, which restarted the one-year filing

deadline for his § 2255 motion. Alternatively, he argues that he was entitled to

equitable tolling. After review, we affirm.

                               I.       Background

      In 2017, Borgesano pleaded guilty to conspiracy to commit healthcare fraud

(“Count 1”) and conspiracy to engage in monetary transactions in property derived

from specified unlawful activity (“Count II”). Prior to the sentencing hearing, the

government filed a motion for an order of forfeiture in the amount of $54,504,778,

as well as a preliminary order of forfeiture for various specified assets. The

government requested that the district court include the forfeiture when orally

pronouncing sentence and include the forfeiture order in the judgment, as required

by Federal Rule of Criminal Procedure 32.2(b)(4)(B). Shortly thereafter, in

February 2018, the district court entered an order of forfeiture and preliminary

order of forfeiture.


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       On April 26, 2018, the district court sentenced Borgesano to 120 months’

imprisonment on Count 1 and 60 months’ imprisonment on Count 2, to be served

consecutively, followed by concurrent terms of 3 years’ supervised release. When

pronouncing sentence, the district court stated that “[t]he previous Forfeiture

Judgment will be made a part of this Final Judgment.” The district court entered

the written judgment that same day, which stated that “Defendant shall forfeit to

the United States those assets previously identified in the Preliminary Order of

Forfeiture for Substitute Assets, attached hereto, that are subject to forfeiture.”

However, the district court failed to attach the February 2018 preliminary order of

forfeiture.

       On June 18, 2018, the government filed a motion to amend the judgment to

include the February 2018 order of forfeiture and preliminary order of forfeiture,

pursuant to Federal Rule of Criminal Procedure 36. The district court granted the

motion and entered an amended judgment that included the February 2018

preliminary forfeiture order on June 19, 2018. Borgesano did not file a direct

appeal.

       On May 9, 2019, Borgesano filed a pro se § 2255 motion, but he failed to

include a supporting memorandum and supporting facts. The district court ordered

Borgesano to show cause as to why the motion should not be denied for failure to

file a memorandum with supporting facts. Instead of supplementing the § 2255


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motion, Borgesano filed a motion to voluntarily dismiss the § 2255 motion without

prejudice, stating that he would refile a § 2255 motion at an unspecified future

date. The district court granted the motion to voluntarily dismiss in part,

explaining that it dismissed the § 2255 motion without prejudice, but that

Borgesano’s one-year limitations period for filing a timely § 2255 motion expired

on May 10, 2019, and it would not grant him an extension of time.

      Subsequently, on July 2, 2019, Borgesano filed another pro se § 2255

motion. Borgesano asserted that his motion was timely because based on the entry

of the amended judgment he had until July 3, 2019, to file a timely § 2255 motion.

In response, the government argued that the § 2255 motion was untimely and

warranted dismissal. The government maintained that the entry of an amended

judgment to correct a clerical error does not toll or otherwise reset the limitations

period for purposes of § 2255 and Borgesano was not entitled to equitable tolling.

Borgesano replied that his § 2255 motion was timely because (1) forfeiture is an

integral part of the sentence and the amended judgment was a substantive

alteration, not the correction of a clerical error, and (2) the limitations period for

purposes of § 2255 did not begin to run until the expiration of his ability to pursue

direct review of the amended judgment.

      The district court dismissed Borgesano’s § 2255 motion as untimely. The

district court concluded that the amended judgment did not make a substantive


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correction or alteration to Borgesano’s sentence. Instead, the amended judgment

was a clerical correction as the court simply attached the previously entered

forfeiture order, which the district court had referenced in the original judgment

and orally pronounced at sentencing. The district court explained that an amended

judgment to make a clerical correction does not reset the statute of limitations

period, and, therefore, Borgesano’s § 2255 motion was untimely. Furthermore, the

district court determined that Borgesano was not entitled to equitable tolling. The

district court denied Borgesano a COA, but, as discussed, we granted him a COA

on the issue of “[w]hether the district court erred in dismissing Borgesano’s

28 U.S.C. § 2255 motion to vacate, set aside, or correct his sentence as untimely.”1

                                     II.        Discussion

       Borgesano argues that his judgment was incomplete until entry of the

amended judgment because forfeiture is a mandatory component of sentencing,

and his § 2255 motion was therefore timely because it was filed within the relevant

limitations period from the amended judgment. Alternatively, he argues that, even

if his § 2255 motion was untimely, the district court erred in determining that he

was not entitled to equitable tolling. 2


       1
           Borgesano retained counsel to represent him in this appeal.
       2
         It is well-established that “appellate review is limited to the issues specified in the
COA.” Murray v. United States, 

145 F.3d 1249

, 1251 (11th Cir. 1998). Thus, the government
argues that we should not consider Borgesano’s equitable tolling argument because it is outside
the scope of the issue identified in the COA. We disagree. Although the COA does not
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       The Antiterrorism and Effective Death Penalty Act (“AEDPA”) imposes a

one-year statute of limitations for filing a § 2255 motion that begins to run, as

relevant here, from “the date on which the judgment of conviction becomes final.”

28 U.S.C. § 2255(f)(1). Although § 2255(f) does not define “judgment of

conviction” or “final,” we have held that when, as in this case, a criminal defendant

does not pursue a direct appeal, his judgment of conviction becomes final when the

time for filing a notice of appeal expires. Mederos v. United States, 

218 F.3d

1252

, 1253 (11th Cir. 2000). The time for filing a notice of appeal from a criminal

judgment is 14 days after “the entry of either the judgment or the order being

appealed.” Fed. R. App. P. 4(b)(1)(A)(i).

       The determinative issue in this case is whether the June 19, 2018 amended

judgment, which included the previously omitted forfeiture order, was a clerical

correction or a substantive alteration to the sentence. As will be explained further,

if it was a clerical correction, then Borgesano’s original judgment became final on

May 9, 2018, and his July 2, 2019 § 2255 motion was untimely. On the other

hand, if the amended judgment was a substantive alteration to his sentence, then it

would have triggered a new one-year limitations period under § 2255, and


expressly mention the equitable tolling issue, we held previously that equitable tolling is
subsumed within a COA on the issue of whether a habeas petition is timely because, in order to
determine whether the statute of limitations bars the petition, “we must consider
whether . . . equitable tolling excepts the one-year filing deadline. If [the petitioner] can
demonstrate . . . that equitable tolling applies to his case, then his petition is timely.” Lawrence
v. Florida, 

421 F.3d 1221

, 1225–26 (11th Cir. 2005).
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Borgesano’s § 2255 motion would have been timely. We review the district

court’s determination that a § 2255 motion is untimely and its determination that a

movant is not entitled to equitable tolling de novo. Jones v. United States, 

304

F.3d 1035

, 1037 (11th Cir. 2002).

      “[C]riminal forfeiture is part of a defendant’s sentence.” United States v.

Gilbert, 

244 F.3d 888

, 924 (11th Cir. 2001). Federal Rule of Criminal Procedure

32.2 governs criminal forfeiture. Specifically, Rule 32.2 provides that

      [a]s soon as practical . . . after a plea of guilty or nolo contendere is
      accepted, on any count in an indictment or information regarding
      which criminal forfeiture is sought, the court must determine what
      property is subject to forfeiture under the applicable statute. If the
      government seeks forfeiture of specific property, the court must
      determine whether the government has established the requisite nexus
      between the property and the offense. If the government seeks a
      personal money judgment, the court must determine the amount of
      money that the defendant will be ordered to pay.

Fed. R. Crim. P. 32.2(b)(1)(A). “If the court finds that property is subject to

forfeiture, it must promptly enter a preliminary order of forfeiture setting forth the

amount of any money judgment, directing the forfeiture of specific property, and

directing the forfeiture of any substitute property if the government has met the

statutory criteria.” 

Id.

 Rule 32.2(b)(2)(A). The Rule further provides that “[a]t

sentencing—or at any time before sentencing if the defendant consents—the

preliminary order becomes final as to the defendant.” 

Id.

 Rule 32.2(b)(4)(A).

Importantly,


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       [t]he court must include the forfeiture when orally announcing the
       sentence or must otherwise ensure that the defendant knows of the
       forfeiture at sentencing. The court must also include the forfeiture
       order, directly or by reference, in the judgment, but the court’s failure
       to do so may be corrected at any time under Rule 36.

Id.

 Rule 32.2(b)(4)(B).

       Rule 36 provides that “[a]fter giving any notice it considers appropriate, the

court may at any time correct a clerical error in a judgment, order, or other part of

the record, or correct an error in the record arising from oversight or omission.”

Fed. R. Crim. P. 36. It is well-established that “Rule 36 may not be used to make a

substantive alteration to a criminal sentence.” United States v. Portillo, 

363 F.3d

1161

, 1164 (11th Cir. 2004) (quotation omitted). “[W]hen a court corrects a

clerical mistake, no new judgment arises for the purposes of Federal Rule of

Appellate Procedure 4(b)(1)(A).” Patterson v. Fla. Dep’t of Corr., 

849 F.3d 1321

,

1326 (11th Cir. 2017) (en banc) (citing Portillo, 

363 F.3d 1165

–66).3

       Borgesano argues that his judgment was “incomplete” until the district court

entered the amended judgment that included the forfeiture order. We disagree.

The district court mentioned the preliminary forfeiture order when it orally

announced the sentence and referenced it in the original April 26, 2018 judgment,



       3
         Borgesano argues that, because Rule 36 does not address expressly whether a motion
under the rule suspends the time for filing a notice of appeal from the judgment of conviction, we
should assume that it does. This argument is foreclosed by our holding in Portillo that an
amended judgment, pursuant to Rule 36, did not alter the time period for filing a notice of appeal
from the judgment. 

363 F.3d at 1165

–66, 1166 n.6.
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and the preliminary order of forfeiture became final as to Borgesano at sentencing

under Rule 32.2(b)(4). At that point, Borgesano’s judgment was complete.

Although the district court inadvertently failed to attach the preliminary forfeiture

order to the judgment, Rule 32.2(b)(4)(B) provides that this error may be corrected

at any time under Rule 36.

       Borgesano maintains that the amended judgment was not simply a clerical

correction, but rather was a modification of his judgment. We disagree. As

discussed, Rule 36 is used to make clerical corrections, not substantive alterations

to a judgment. Thus, the fact that Rule 32.2(b)(4) authorizes the use of Rule 36 to

“correct” a judgment to include an omitted preliminary forfeiture order confirms

that such a correction is clerical in nature not substantive. Furthermore, the

amended judgment did not alter Borgesano’s sentence because it did not change

the previously entered forfeiture order or make Borgesano’s “sentence more

onerous,” and his liability remained the same. 4 Portillo, 

363 F.3d at 1165

.


       4
           In his briefing, Borgesano notes that, following his sentencing, the government moved
for a final order of forfeiture of certain assets, which the district court granted. Therefore, he
maintains that his judgment was incomplete because there remained something to be done
concerning forfeiture and the district court did not grant the government’s motion for preliminary
order of forfeiture and final order of forfeiture until after the issuance of the April 26, 2018
judgment. Borgesano’s arguments are unpersuasive. As an initial matter, his contention that the
preliminary order of forfeiture was not issued until after the April 26, 2018 judgment is belied by
the record. The preliminary order of forfeiture was issued in February 2018 prior to Borgesano’s
sentencing. The preliminary order of forfeiture becomes final unless a third party asserts an
interest in the property subject to the forfeiture order. See Fed. R. Crim. P. 32.2(c)(2). Where a
third-party asserts an interest in the property to be forfeited, the district court is required to
conduct an ancillary proceeding to resolve that interest, and must then enter a final order of
forfeiture following the ancillary proceeding. 

Id.

 Rule 32.2(c)(1)–(2). “An ancillary proceeding
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Accordingly, because the amended judgment was a clerical correction, “no new

judgment [arose] for the purposes of Federal Rule of Appellate Procedure

4(b)(1)(A).” Patterson, 849 F.3d at 1326; Portillo, 

363 F.3d at 1165

–66.

Therefore, it had no effect on the finality of Borgesano’s “judgment of conviction”

and did not alter the “date on which the judgment of conviction [became] final” for

purposes of § 2255’s statute of limitations. In other words, the original April 26,

2018 judgment remained the operative judgment for purposes of calculating

Borgesano’s § 2255 limitations period.5

       The April 26, 2018 judgment became final 14 days after its entry on May 10,

2018 when the window for filing a direct appeal expired. Mederos, 218 F.3d at

1253. Thus, Borgesano had until May 10, 2019 to file a timely § 2255 motion.


is not part of sentencing,” and the subsequent final order of forfeiture does not impact the
validity of the preliminary forfeiture order or the judgment. See generally Fed. R. Crim. P.
32.2(b), (c). In any event, the post-sentencing final order of forfeiture was not the order
incorporated via the amended judgment. Rather, the amended judgment incorporated the
previously entered February 2018 preliminary forfeiture order, as required under Fed. R. Crim.
P. 32.2(b).
       5
          Borgesano contends that our conclusion is inconsistent with Ferreira v. Secretary, the
Department of Corrections, 

494 F.3d 1286

 (11th Cir. 2007), and Burton v. Stewart, 

549 U.S. 147

(2007), which involved the one-year limitations period under 28 U.S.C. § 2244(d)(1) applicable
to federal habeas petitions filed by state prisoners. Burton reaffirmed the principle that a final
judgment in a criminal case encompasses both the conviction and sentence. 

549 U.S. at 156

.
We applied Burton in Ferreria and determined that AEDPA’s statute of limitations provisions
are “specifically focused on the judgment which holds the petitioner in confinement . . . [and] the
judgment of conviction and the sentencing judgment together form the judgment that imprisons
the petitioner.” 

494 F.3d at 1293

. Thus, we held that where a defendant is resentenced, the
defendant becomes confined under a new judgment, which triggers anew § 2244(d)(1)’s one-
year statute of limitations period. Id. Unlike Ferreria, Borgesano was not resentenced, and his
conviction and sentence remained the same under the amended judgment. Accordingly, there
was no new judgment for purposes of triggering anew § 2255’s limitations period.
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See 28 U.S.C. § 2255(f)(1). Although he filed a § 2255 motion on May 9, 2019

within the one-year time frame, he successfully moved for its dismissal without

prejudice. Therefore, the district court properly determined that the July 2, 2019

§ 2255 motion was untimely.

      Borgesano argues that, even if his § 2255 motion was untimely, he is entitled

to equitable tolling because of the confusion surrounding the amended judgment

and whether it triggered anew § 2255’s one-year statute of limitations period. We

disagree.

      “[P]ro se litigants, like all others, are deemed to know of [AEDPA’s] one-

year statute of limitations.” Outler v. United States, 

485 F.3d 1273

, 1282 n.4 (11th

Cir. 2007). AEDPA’s limitations period may be equitably tolled, but the movant

must show “(1) that he has been pursuing his rights diligently, and (2) that some

extraordinary circumstance stood in his way and prevented timely filing.” Holland

v. Florida, 

560 U.S. 631

, 649 (2010) (quotation omitted); see also Sandvik v.

United States, 

177 F.3d 1269

, 1271–72 (11th Cir. 1999) (holding that the same

equitable tolling principles that are applied to 28 U.S.C. § 2244’s statute of

limitations apply equally to § 2255). To show diligence, a movant must show that

an effort was made to determine the limitations period and must show how the

alleged extraordinary circumstance “thwarted his efforts” to file a timely petition.

Arthur v. Allen, 

452 F.3d 1234

, 1253 (11th Cir. 2006) (quotation omitted). The


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focus of the “extraordinary circumstances” inquiry “is on the circumstances

surrounding the late filing of the habeas petition . . . and whether the conduct of

others prevented the petitioner from timely filing.” 

Id.

 (quotations and citations

omitted). The movant must “show a causal connection between the alleged

extraordinary circumstances and the late filing of the petition.” San Martin v.

McNeil, 

633 F.3d 1257

, 1267 (11th Cir. 2011). Equitable tolling is “an

extraordinary remedy [that] is typically applied sparingly.” Arthur, 452 F.3d at

1252 (quotation omitted).

      Borgesano has not established that some extraordinary circumstance stood in

his way and prevented timely filing of a § 2255 motion. Indeed, the record belies

such a contention because he filed a barebones timely § 2255 motion the day

before the expiration of the statute of limitations and he had the opportunity to

supplement it with supporting facts and argument. Rather than take that

opportunity, however, he moved to voluntarily dismiss it. His incorrect belief that

he had additional time to file a timely § 2255 motion because of the amended

judgment is insufficient to warrant equitable tolling. Both the Supreme Court and

this Court have held repeatedly that legal confusion or a mistake in calculating

AEDPA’s statute of limitations period—whether the result of counsel error or pro

se error—does not warrant equitable tolling. See, e.g., Lawrence v. Florida, 

549

U.S. 327

, 336 (2007) (holding that counsel’s miscalculation of the limitations


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period “is simply not sufficient to warrant equitable tolling” and rejecting a claim

for equitable tolling on the basis of legal confusion); Steed v. Head, 

219 F.3d 1298

,

1300 (11th Cir. 2000) (holding that “an attorney’s miscalculation of the limitations

period or mistake is not a basis for equitable tolling”); Rivers v. United States, 

416

F.3d 1319

, 1323 (11th Cir. 2005) (explaining that a lack of a legal education and

related confusion about the law did not excuse petitioner’s failure to exercise due

diligence).

       Moreover, we note that in its June 3, 2019, order granting in part

Borgesano’s motion to voluntarily dismiss the timely § 2255 motion, the district

court stated that the statute of limitations had expired, at which point Borgesano

was on notice of the potential issue. Yet he did not ask the district court for an

extension of time or otherwise notify the court that he believed the statute of

limitations ran from the amended judgment as opposed to the original judgment,

and he waited approximately a month to file another § 2255 motion. Under these

circumstances, Borgesano cannot establish either due diligence or “extraordinary

circumstances that were beyond his control and unavoidable even with diligence.”

Sandvik, 

177 F.3d at 1271

. Accordingly, the district court did not err in

determining that Borgesano had not made a sufficient showing to warrant equitable

tolling.




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                            III.      Conclusion

      For the above reasons, we affirm the dismissal of Borgesano’s § 2255

motion as untimely.

      AFFIRMED.




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