United States Court of Appeals
For the First Circuit
No. 05-2350
IN RE: WILLIAM SMITH
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Patti B. Saris, U.S. District Judge]
Before
Lynch, Lipez and Howard,
Circuit Judges.
William Smith, Motion for Certificate of Appealability pro
se.
January 18, 2006
Per Curiam. William Smith, who is serving a federal-
court sentence for being a felon in possession of a firearm and
ammunition in violation of 18 U.S.C. § 922(g)(1), seeks a
certificate of appealability of the district court's dismissal of
his habeas corpus petition as untimely. The sole issue he seeks to
raise on appeal is whether the district court erred in concluding
that the one-year statute of limitations for filing a habeas
petition under 28 U.S.C. § 2255 started to run when the Supreme
Court denied his petition for a writ of certiorari from this
court's affirmance of his conviction and sentence on direct appeal.
Smith argues that the limitations period did not begin to run until
the Supreme Court denied his petition for rehearing of the denial
of certiorari and that his section 2255 petition, which was filed
within one year after the denial of the petition for rehearing, was
therefore timely.
To appeal from a final order in a section 2255
proceeding, the petitioner must obtain a certificate of
appealability. 28 U.S.C. § 2253(c)(1)(B). To obtain such a
certificate where, as here, the district court dismissed the
section 2255 petition on procedural grounds without reaching the
merits, the petitioner must show both that "the soundness of the
procedural ruling is debatable, and . . . [that] the [underlying]
constitutional claim is also colorable." Mateo v. United States,
310 F.3d 39, 40 (2002) (citing Slack v. McDaniel, 529 U.S. 473,
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484-85 (2000)). Here, petitioner has made no effort to address
the merits of his constitutional claims, and the procedural issue
is relatively easy to resolve, so we will turn to it first, as the
Supreme Court has encouraged lower courts to do. Slack, 529 U.S.
at 485.
A one-year statute of limitations applies to petitions
under section 2255. 28 U.S.C. § 2255. That period begins to run
from the latest of several events, only one of which is relevant
here--"the date on which the judgment of conviction becomes final."
28 U.S.C. § 2255(1). Although the statute itself does not define
when a conviction becomes final for this purpose, every circuit
that has addressed the issue has concluded that a conviction
becomes final--and the one-year period therefore starts to run--
when a petition for certiorari is denied,1 Campa-Fabela v. United
States, 339 F.3d 993, 994 (8th Cir. 2003) (per curiam); United
States v. Hicks, 283 F.3d 380, 387 (D.C. Cir. 2002); United States
v. Segers, 271 F.3d 181, 186 (4th Cir. 2001); Horton v. United
States, 244 F.3d 546, 551 (7th Cir. 2001); Washington v. United
States, 243 F.3d 1299, 1300-01 (11th Cir. 2001) (per curiam);
United States v. Thomas, 203 F.3d 350, 356 (5th Cir. 2000); United
States v. Willis, 202 F.3d 1279, 1280 (10th Cir. 2000); Kapral v.
1
Where no petition for certiorari is filed, section 2255's
one-year limitation period starts to run when the time for seeking
certiorari expires. Clay v. United States, 537 U.S. 522, 532
(2003).
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United States, 166 F.3d 565, 570 (3rd Cir. 1999), rather than when
a petition for rehearing of the denial of certiorari is denied,
Giesberg v. Cockrell, 288 F.3d 268, 270-71 (5th Cir. 2002) (per
curiam); Segers, 271 F.3d at 184-86. See also Clay, 537 U.S. at
539 n.4 (noting uniformity of the circuits on this issue).
In reaching that conclusion, our sister circuits have
relied on Supreme Court Rule 16.3, which provides that, absent a
court order to the contrary, an order denying a petition for
certiorari "will not be suspended pending disposition of a petition
for rehearing." Based on that rule, they have persuasively
reasoned that a conviction becomes final for purposes of triggering
the one-year limitations period of section 2255 when certiorari is
denied, regardless of whether a petition for rehearing is filed or
when such a petition is denied. See Campa-Fabela, 339 F.3d at 994;
Segers, 271 F.3d at 184-85; Giesberg, 288 F.3d at 271; Horton, 244
F.3d at 551; Willis, 202 F.3d at 1280. We agree and adopt the
rule.
Petitioner argues that Supreme Court Rule 45, dealing
with issuance of mandates by the Supreme Court, dictates the
opposite conclusion. In particular, he relies on Rule 45.2's
provision that "[t]he filing of a petition for rehearing stays the
mandate until disposition of the petition, unless the court orders
otherwise." That rule is inapt. As recognized by the Fifth
Circuit, Rule 45 "refer[s] to the mandate and judgment that issues
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after a Supreme Court decision on the merits. The denial of
certiorari review is governed[, instead,] by Supreme Court Rule
16.3." Thomas, 203 F.3d at 355.
Because the above reasoning and result are not reasonably
debatable, we deny the application for a certificate of
appealability on the procedural issue without assessing the merits
of petitioner's underlying constitutional claims.
The application for a certificate of appealability is
denied, and the appeal is terminated.
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