from the United States District Court for the District of New
Mexico (D.C. Nos. 2:17-CV-00419-MCA and 2:09-CR-00863-MCA-1)
Bowles of Bowles Law Firm, Albuquerque, New Mexico, for
Paige Messec, Assistant U.S. Attorney (John C. Anderson, U.S.
Attorney, with her on the brief), Albuquerque, New Mexico,
for the Plaintiff - Appellee.
BRISCOE, MATHESON, and BACHARACH, Circuit Judges.
MATHESON, CIRCUIT JUDGE.
Mark Hopkins filed a motion under 28 U.S.C. § 2255 to
vacate his 2010 conviction and sentence for tax evasion.
Before his trial, the district court ordered him to make
monthly payments into the court's registry to ensure he
was complying with federal tax law. Several months later, Dr.
Hopkins requested release of the funds so he and his wife,
who was being tried with him, could pay their attorneys. The
district court ordered the funds' return. But then the
IRS filed notice of a lien on the funds, prompting the court
clerk to file an interpleader action. The district court
reversed course. Dr. Hopkins never received the funds. He and
his wife were convicted in a jury trial.
Hopkins filed his § 2255 motion on March 29, 2017,
following the Supreme Court's decision in Luis v.
United States, 136 S.Ct. 1083 (2016). Luis
recognized a defendant's Sixth Amendment right to use
untainted assets to hire counsel of choice.Because his
conviction became final in 2013, however, Dr. Hopkins's
motion fell outside the usual one-year time limit set by
§ 2255(f)(1). He sought to avoid that time bar by
relying on § 2255(f)(3), arguing that Luis
created a "newly recognized" right that would be
"retroactively applicable to cases on collateral
review." The district court held that Luis did
not create such a right, dismissed the motion, and granted a
certificate of appealability. Exercising jurisdiction under
28 U.S.C. §§ 1291 and 2253(a), (c)(1), we affirm.
Trial and Direct Appeal
Indictment and Pretrial Proceedings
Hopkins and his wife Sharon Hopkins were tax protestors. They
failed to pay income taxes for more than 13 years. In April
2009, a grand jury indicted them on one count of conspiracy
to defraud the IRS, in violation of 18 U.S.C. § 371, and
seven counts of tax evasion, in violation of 26 U.S.C. §
7201. The Government moved to revoke Dr. Hopkins's
pretrial release, arguing that he was not making quarterly
income tax payments required by 26 U.S.C. § 6654. At a
hearing on the motion, Dr. Hopkins agreed to make tax
payments to an escrow account in the court registry. Between
October 2009 and June 2010, he paid approximately $130, 000
into the registry.
2010, Dr. and Ms. Hopkins moved to end the required payments
and have the funds returned. They asserted the payments had
"drain[ed] their ability to pay" their lawyers,
"thereby causing them to ultimately lose their
constitutionally protected right of choice of counsel"
under the Sixth Amendment. Aplt. App. at 121. The district
court ordered the funds be returned to the Hopkinses. But
before the funds' release, the IRS served notice of a
federal tax lien on the court clerk. The clerk then filed an
interpleader action for clarification as to the proper
distribution of the funds. In response, the district court
denied the Hopkinses' emergency motion to release the
funds. Ms. Hopkins's attorney-who, the Hopkinses claim,
"was an integral part of the defense team" for both
of them, Aplt. Reply Br. at 8-withdrew on July 15,
Conviction and Sentence
convicted the Hopkinses on all counts. The district court
sentenced Dr. Hopkins to 120 months in prison and three years
of supervised release. It ordered the Hopkinses to pay more
than $1, 700, 000 in restitution.
Hopkinses filed a joint appeal, and this court affirmed their
convictions and sentences. See United States v.
Hopkins, 509 Fed.Appx. 765, 767 (10th Cir. 2013)
(unpublished). Although only Ms. Hopkins asserted a
deprivation of the right to counsel of choice on appeal,
see id. at 770,  our treatment of that issue on her
appeal provides context for our consideration of Dr.
Hopkins's § 2255 appeal.
deciding the right to counsel of choice issue, we relied on
Caplin & Drysdale, Chartered v. United States,
491 U.S. 617 (1989), and United States v. Monsanto,
491 U.S. 600 (1989). In Caplin & Drysdale, the
defendant was charged with running a large-scale drug
importation and distribution business. After he pled guilty
and was ordered to forfeit the proceeds of his crimes under
21 U.S.C. § 853(a),  his attorney petitioned to collect his
legal fees from the forfeited property. Id. at 621.
The Supreme Court held the attorney could not recover fees
out of the forfeited funds. Id. at 622. It explained
that title to forfeitable assets vests in the government
"at the time of the criminal act giving rise to
forfeiture," id. at 627, and in light of that
vesting, "a defendant has no Sixth Amendment right to
spend another person's money for services rendered by an
attorney, even if those funds are the only way that that
defendant will be able to retain the attorney of his
choice," id. at 626.
Monsanto, decided the same day, the Supreme Court
extended Caplin & Drysdale's holding to
authorize freezing of a defendant's forfeitable assets
before conviction to prevent dissipation, even when doing so
prevents the defendant from paying counsel. 491 U.S. at 602.
The indictment alleged that the defendant had obtained a
house, an apartment, and $35, 000 in cash through drug
trafficking. Id. The government obtained an order
freezing those assets under 21 U.S.C. § 853(a).
Id. at 603. Pointing to Caplin &
Drysdale, the Court held that the order did not violate
the defendant's right to obtain counsel of choice. It
said, "[I]f the Government may, post-trial, forbid the
use of forfeited assets to pay an attorney, then surely no
constitutional violation occurs when, after probable cause is
adequately established, the Government obtains an order
barring a defendant from frustrating that end by dissipating
his assets prior to trial." Id. at 616.
Hopkinses' appeal, we concluded that these cases
foreclosed Ms. Hopkins's Sixth Amendment challenge.
"[N]either the Fifth nor the Sixth Amendment to the
Constitution requires Congress to permit a defendant to use
assets adjudged to be forfeitable to pay that defendant's
legal fees." Hopkins, 509 Fed.Appx. at 773 n.6
(quoting Monsanto, 491 U.S. at 614). Just as the
government had rightful possession over the forfeited
property in Caplin & Drysdale, the IRS had been
"within its rights to file the levy [over the registry
funds], which limited Sharon Hopkins's right to the same
funds." Id. at 773. Accordingly, the district
court's refusal to return the $130, 000 to Dr. and Ms.
Hopkins did not violate the Sixth Amendment right to counsel
of choice. Id. at 773, 776.
this court's decision, Dr. Hopkins did not seek
certiorari from the United States Supreme Court. His
conviction thus became final no later than June 11, 2013.
See Gonzalez v. Thaler, 565 U.S. 134, 149-50 (2012)
(explaining that under § 2255(f)(1), a criminal
conviction becomes final when the Supreme Court affirms the
conviction or denies certiorari, or, if review by the Supreme
Court is not sought, when the time for filing a certiorari
petition expires); Sup. Ct. R. 13(1) (2017) (providing that a
certiorari petition is timely if filed within 90 days of
entry of judgment).
Luis v. United States
March 30, 2016, nearly three years after Dr. Hopkins's
conviction became final, the Supreme Court decided Luis
v. United States, 136 S.Ct. 1083 (2016). In that case,
Sila Luis was charged with health care fraud. Id. at
1087. At the government's request, and pursuant to 18
U.S.C. § 1345(a)(2), the district court prohibited Ms.
Luis from "dissipating, or otherwise disposing of . . .
assets . . . up to the equivalent value of the proceeds"
of the crime. Id. at 1088. The court's order
forbade her from spending not just the proceeds of the crime,
but also innocently-obtained property of the same value.
Id. She therefore could not use untainted
funds to hire an attorney. Ms. Luis argued this restriction
violated her right to counsel of her choice.
Supreme Court agreed. Observing that "[t]he Sixth
Amendment right to counsel grants a defendant 'a fair
opportunity to secure counsel of his own choice, '"
id. at 1085 (quoting Powell v. Alabama, 287
U.S. 45, 53 (1932)), Justice Breyer said in the plurality
opinion that "the pretrial restraint of legitimate,
untainted assets needed to retain counsel of choice violates
the Sixth Amendment." Id. at
1088. It distinguished Caplin &
Drysdale and Monsanto, both of which concerned
a defendant's right to pay counsel using assets linked to
the crime. The plurality explained, "The relevant
difference consists of the fact that the property here is
untainted; i.e., it belongs to [Ms. Luis], pure and
simple." Id. at 1090 ("[B]oth Caplin
& Drysdale and Monsanto relied critically
upon the fact that the property at issue was
'tainted.'"). The difference between tainted and
untainted assets was "the difference between what is
yours and what is mine." Id. at 1091. The
government had a property interest in the defendants'
crime-tainted forfeitable assets in Caplin &
Drysdale and Monsanto. But in Ms. Luis's
case, the court's order extended to freezing
"untainted" assets that were not tied to her crime.
And even if these assets may have been subject to forfeiture
upon her conviction, the government's contingent interest
in the untainted assets did not outweigh Ms. Luis's right
to use the assets to obtain counsel of her choice.
Id. at 1092.
Luis decision drew two dissenting opinions. Justice
Kennedy, joined by Justice Alito, called the Court's
holding "unprecedented," adding that the decision
"ignore[d] this Court's precedents and distort[ed]
the Sixth Amendment right to counsel." Id. at
1103 (Kennedy, J., dissenting). He reasoned that Caplin
& Drysdale and Monsanto "make clear
that a defendant has no Sixth Amendment right to spend
forfeitable assets (or assets that will be forfeitable) on an
attorney." Id. Those cases involved assets that
"belong[ed] to the defendant," just like Ms.
Luis's assets, but because there was probable cause to
believe the assets would be forfeited upon conviction, they
could be seized or frozen before trial. Id. at 1106.
Accordingly, Justice Kennedy reasoned, the plurality's
distinction between "tainted" and
"untainted" assets lacked support. In a separate
dissent, Justice Kagan expressed doubts about the correctness
of Monsanto's holding, but concluded that it
should control the case. Id. at 1112 (Kagan, J.,
District Court § 2255 Proceedings
Section 2255(f) Statute of Limitations
2255(f) imposes a one-year statute of limitations on a
prisoner filing a § 2255 motion. As relevant to this
case, the one-year period runs from "the latest of . . .
the date on which the judgment of conviction becomes
final," id. § 2255(f)(1), or "the
date on which the right asserted was initially recognized by
the Supreme Court, if that right has been newly recognized by
the Supreme Court and made retroactively applicable to cases
on collateral review," id. § 2255(f)(3).
Dr. Hopkins's § 2255 motion
March 29, 2017,  Dr. Hopkins filed a pro se motion to
vacate his conviction under 28 U.S.C. §
2255. He argued that the Luis decision
was "a substantive change in the law" that entitled
him to file the motion more than one year after his
conviction had become final. Aplt. App. at 387. He contended
that the funds he was ordered to pay into the registry were
"innocent assets . . . needed to pay counsel of
choice." Id. at 392. Under Luis, he
said, the district court's refusal to release the
registry funds amounted to "unconstitutional and
impermissible restraint of [his] innocent assets," in
violation of his Sixth Amendment right to counsel of choice.
Id. at 400. The Government did not file a response
and the district court did not order it to do so.
District Court Ruling
district court dismissed Dr. Hopkins's § 2255 motion
as untimely. United States v. Hopkins, No.
2:09-CR-00863 MCA, 2018 WL 1393780, at *2 (D.N.M. Mar. 19,
2018). It explained that to obtain relief, Dr. Hopkins needed
to show ...