Brian ANDERSON, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee, 612 F. App'x 45

SUMMARY ORDER Brian Anderson, who stands convicted after a guilty plea of wire fraud and conspiracy to commit wire fraud, see 18 U.S.C. §§ 1343, 1349, 2, appeals from the denial of his petition to vacate that conviction pursuant to 28 U.S.C. § 2255. Pursuant to a certificate of appealability granted by this court, Anderson argues that (1) the district court erred by dismissing his petition as untimely without affording him the opportunity to reply to the' government’s answer pursuant to Rule 5(

d) of the Rules Governing

Section 2255 Proceedings for the United States District Courts (“Rules Governing § 2255 Proceedings”); and (2) his trial counsel was constitutionally ineffective. See Strickland v. Washington, 466 U.S. 668, 688, 692-94, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). On appeal from the denial of § 2255 relief, we review the district court’s factual findings for clear error and its conclusions of law de novo. See Harrington v. United States, 689 F.3d 124, 129 (2d Cir.2012). We assume the parties’ familiarity with the facts and record of prior proceedings, which we reference only as necessary to explain our decision to affirm. 1. The Claimed Right to Respond Anderson maintains that Rule 5(

d) afforded him an absolute right to respond to the government’s answer to his § 2255 petition before the district court ruled. We need not conclusively decide this issue because, given that Anderson’s petition was untimely, ’ any error the district court may have committed was harmless. Anderson has conceded the untimeliness of his petition on this appeal, and he has failed to show that he was prejudiced by any error the district court may have made in ruling on his § 2255 petition before he could respond to the government’s answer to' it. 2. Anderson’s § 2255 Petition Was Untimely

Section 2255 petitions are subject to a one-year limitations period, which in most eases runs from “the date on which the judgment of conviction becomes final.” 28 U.S.C. § 2255(f)(1). Anderson’s conviction became final on June 30, 2011, when the time expired for him to petition the Supreme Court for a writ of certiorari from this court’s affirmance of his conviction on direct appeal. See Sup.Ct. R. 13(1), (3); United States v. Anderson, 419 Fed.Appx. 16 (2d Cir.2011) (summary order). Anderson filed his § 2255 petition on September 15, 2012, more than fourteen months after his conviction became final.

Anderson recognized this timeliness concern when he filed his § 2255 petition, but argued that the one-year filing period did not commence in his case until June 21, 2012, when the Supreme Court decided Southern Union Co. v. United States,—U.S.-, 132 S.Ct. 2344, 183 L.Ed.2d 318 (2012), which Anderson maintained applied the rule of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), to the restitution component of sentence.

See 28 U.S.C. § 2255(f)(3) (calculating one-year period from date on which right asserted “was initially recognized by the Supreme Court,” if newly recognized right was “made retroactively applicable to cases on collateral review”). Our court has expressly rejected such a reading of Southern Union, holding that where, as here, there is “no determinate statutory maximum” for the restitution that can be imposed, “there is no range prescribed by statute and thus there can be no Apprendi violation.” United States v. Bengis, 783 F.3d 407, 413 (2d Cir.2015) (adhering to pre-Southern.

Union discussion in United States v. Reifler, 446 F.3d 65, 118 (2d Cir.2006), and joining three sister circuits in concluding that “judicial factfinding to determine the appropriate amount of restitution under a statute that does not prescribe a maximum does not implicate a defendant’s Sixth Amendment rights” (collecting cases)). Indeed, Anderson concedes the point on appeal. See Appellant’s Br. 17 n. 3.

Thus, because Southern Union recognized no new right available to Anderson, he is not entitled to have the one-year filing deadline for his § 2255 petition calculated from the date of that decision, see 28 U.S.C. § 2255(f)(3), rather than from the date his conviction became final, see id. § 2255(f)(1). Under these circumstances, the district court’s dismissal of Anderson’s petition as untimely was certainly correct.

Anderson does not, after all, contend that the government created any impediment to' the timely filing of his § 2255 motion," see id. § 2255(f)(2), nor does he assert that his claims rested on facts that could not have been discovered before his conviction became final, see id. § 2255(f)(4). Indeed, the record confirms that the factual basis for Anderson’s claims — that the actual loss amount informing restitution was erroneously calculated — was available and known to him before he filed his direct appeal.

We therefore conclude, after considering the arguments advanced .in Anderson’s § 2255 motion and in his brief on appeal, that his § 2255 motion was untimely, and that Anderson’s arguments to the' contrary fail on the merits. 3. Conclusion We have considered Anderson’s remaining arguments ns to the first certified question, and we reject them as without merit. Under these circumstances, we do not consider the second certified question because Anderson’s claim of ineffective assistance of counsel is untimely. Accordingly, the judgment of the district court is AFFIRMED. .

At oral argument, Anderson’s counsel advised that Anderson intends to pursue a claim of actual innocence. This does not alter our conclusion because such claims may be heard notwithstanding any procedural bar or limitations period. See McQuiggin v. Perkins,-U.S.-, 133 S.Ct. 1924, 1928, 185 L.Ed.2d 1019 (2013); Rivas v. Fischer, 687 F.3d 514, 547-52 (2d Cir.2012). Thus, any error below would be harmless.