[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
________________________ FEBRUARY 21, 2002
THOMAS K. KAHN
CLERK
No. 00-15458
________________________
D. C. Docket No. 00-02481-CV-WCO-1
ANDERS JOSEPH KAUFMANN, JR.,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(February 21, 2002)
Before BARKETT, HULL and KRAVITCH, Circuit Judges.
BARKETT, Circuit Judge:
Anders Joseph Kaufmann, Jr., a federal prisoner, appeals the dismissal as
untimely of his motion to vacate his sentence pursuant to 28 U.S.C. § 2255. In his
petition, Kaufmann raises two arguments: (1) that Apprendi v. New Jersey, 530
U.S. 466 (2000), requires that his sentence be vacated; and (2) that he received
ineffective assistance of counsel regarding issues unrelated to Apprendi. The trial
court held that Kaufmann’s motion was untimely because (1) Apprendi is not
retroactively applicable to cases on collateral review; and (2) Kaufmann’s habeas
petition, alleging ineffective assistance of counsel, was filed more than one year
after the date on which this Court issued the mandate in his direct appeal. We
affirm in part, and reverse in part.
BACKGROUND
On June 30, 1999, this Court issued an opinion affirming Kaufmann’s
conviction for one count of attempt to knowingly manufacture methamphetamine,
in violation of 21 U.S.C. § 846, and one count of possessing a firearm by a
prohibited person, in violation of 18 U.S.C. § 922(g)(3). Kaufmann did not file a
petition for rehearing, and this Court’s mandate issued on August 4, 1999.
Kaufmann had 90 days from the date of this Court’s affirmance on June 30, 1999,
that is, until September 30, 1999, to seek a writ of certiorari in the Supreme Court,
but he did not do so. See Sup. Ct. R. 13.1 On September 19, 2000, more than one
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Rule 13 provides, in pertinent part:
(1) Unless otherwise provided by law, a petition for a writ of certiorari to review a judgment in
any case, civil or criminal, entered by a ... United States court of appeals ... is timely when it is
filed with the Clerk of this Court within 90 days after entry of the judgment. ...
(3) The time to file a petition for certiorari runs from the date of the entry of the judgment or
order sought to be reviewed, and not from the issuance of the mandate . . . .
The “entry of the judgment or order sought to be reviewed” occurred in this case when our opinion
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year after this Court’s affirmance of his conviction, but less than one year from the
expiration of the 90-day period to seek certiorari, Kaufmann filed the instant
habeas petition.
The district court dismissed Kaufmann’s petition as untimely, because it was
filed more than one year “from the date on which the judgment of conviction
bec[ame] final,” 28 U.S.C. § 2255(1), deeming Kaufmann’s judgment to have
become final on the date this Court issued the mandate in his direct appeal.
Kaufmann appeals, arguing that his conviction did not become “final” until his 90-
day period to seek certiorari expired. We review this issue of statutory
interpretation de novo. See United States v. Hooshmand, 931 F.2d 725, 737 (11th
Cir. 1991).
DISCUSSION
A. The Apprendi Claim
Subsequent to the Apprendi Briefing in this case, this Court held that
Apprendi is not applicable retroactively to cases on collateral review. See Hamm
v. United States, 269 F.3d 1247, 1249 (11th Cir. 2001); McCoy v. United States,
266 F.3d 1245 (11th Cir. 2001). Accordingly, we affirm the trial court’s dismissal
affirming Kaufmann’s conviction and sentence was issued on June 30, 1999.
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of Kaufmann’s petition as to the Apprendi claim.
B. The “Finality” of Kaufmann’s Conviction
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)
provides, inter alia, that a habeas petition may not be filed more than one year from
“the date on which the judgment of conviction becomes final.” 28 U.S.C. §
2255(1) (emphasis added). AEDPA does not expressly define the term “final.”
Kaufmann argues that his conviction did not become final until the 90-day period
to seek certiorari expired, even though he never actually petitioned for certiorari.
The Government agrees, and so do we.
In addressing this issue, the district court noted that the word “final” in §
2255(1) could mean one of three things: (1) the date on which the district court
enters judgment against the defendant; (2) the date on which the court of appeals
issues the mandate on direct appeal; or (3) the date on which certiorari is denied, or
on which the period to seek certiorari expires.2 This Court has not yet addressed
the issue. The circuit courts that have addressed the question are split, with the
Third, Fifth, Ninth and Tenth Circuits agreeing that AEDPA’s one-year limitation
period begins to run at the expiration of the 90-day period for seeking certiorari,
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Of course, if the Supreme Court grants certiorari, the defendant’s conviction becomes
final only when the Supreme Court issues a decision on the merits. See Washington v. United
States, 243 F.3d 1299, 1300 (11th Cir. 2001).
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and the Fourth and Seventh Circuits holding that the period runs from the issuance
of the mandate on direct appeal. Compare United States v. Gamble, 208 F.3d 536
(5th Cir. 2000) (even where a prisoner does not file a petition for certiorari, one-
year limitation period runs from expiration of 90-day period during which he was
entitled to seek certiorari), United States v. Garcia, 210 F.3d 1058, 1060 (9th Cir.
2000), United States v. Burch, 202 F.3d 1274 (10th Cir. 2000), and Kapral v.
United States, 166 F.3d 565, 570 (3d Cir. 1999), with United States v. Torres, 211
F.3d 836 (4th Cir. 2000) (where prisoner does not petition for certiorari, one-year
period runs from the court of appeals’ issuance of the mandate on direct appeal),
and Gendron v. United States, 154 F.3d 672, 674 (7th Cir. 1998). We join the
Third, Fifth, Ninth, and Tenth Circuits in holding that even when a prisoner does
not petition for certiorari, his conviction does not become “final” for purposes of §
2255(1) until the expiration of the 90-day period for seeking certiorari.
To begin with, like every other circuit to have addressed the issue, this
Court has held that where a prisoner does timely petition for certiorari, § 2255(1)’s
limitation period “begins to run when the Supreme Court denies certiorari or issues
a decision on the merits.” Washington v. United States, 243 F.3d 1299, 1300 (11th
Cir. 2001). In either case, the prisoner gets the benefit of up to 90 days between
the entry of judgment on direct appeal and the expiration of the certiorari period.
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We believe that the principle of Washington extends to this case as well, entitling a
prisoner who does not petition for certiorari to the benefit of the 90 days just as a
petitioner who does petition obtains the benefit of that time. It would be
anomalous to hold that the limitations period does not begin to run until a petition
for certiorari is filed— for up to 90 days—but then, if it turns out that the prisoner
ultimately decides not to petition for certiorari, that the limitation period actually
began to run retroactively upon the issuance of the court of appeals’ mandate. If
the one-year period does not begin to run during the 90 days while a prisoner who
ultimately does petition for certiorari considers whether or not to file his petition, it
must likewise be that the period does not begin to run during the 90 days while a
petitioner who ultimately chooses not to petition for certiorari considers his
decision.
We are also persuaded by the fact that the Supreme Court has expressly
defined when a conviction becomes “final,” albeit prior to the enactment of
AEDPA. See Griffith v. Kentucky, 479 U.S. 314 (1987). In Griffith, the Court
stated: “By ‘final,’ we mean a case in which a judgment of conviction has been
rendered, the availability of appeal exhausted, and the time for a petition for
certiorari elapsed or a petition for certiorari finally denied.” Id. at 321 n.6
(emphasis added). In the absence of an express change in the definition of the
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word “final” by Congress, we continue to adhere to the Supreme Court’s clear
definition of that term in the context of habeas review.
Finally, were we to hold that the one-year period runs from the resolution of
a petition for certiorari that could be filed at any time within the 90-day period, but
that it runs from the issuance of the court of appeals’ mandate if the prisoner does
not file a certiorari petition, we would create a strong incentive for prisoners to file
plainly frivolous petitions for certiorari for the sole purpose of extending their time
for habeas review. We believe that the 90-day period for seeking certiorari should
be available to defendants so that they may consider whether to seek certiorari,
assess the merits of their application for discretionary review, and discuss these
issues with their counsel. It makes no sense to encourage prisoners who have
decided that discretionary appeal to the Supreme Court would be inappropriate to
file obviously meritless petitions nonetheless. Given the already heavy demands of
the Supreme Court’s caseload, we doubt the wisdom of such an approach.
Nor are we persuaded by the reasons given by the Seventh and Fourth
Circuits in holding that the limitation period begins to run from the issuance of the
mandate on direct appeal. See United States v. Torres, 211 F.3d 836 (4th Cir.
2000); Gendron v. United States, 154 F.3d 672 (7th Cir. 1998). Like the Torres
and Gendron Courts, we acknowledge the potential relevance of 28 U.S.C. § 2244,
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which sets forth a one-year limitation period for habeas petitions filed by state
prisoners, to the meaning of “final” in 28 U.S.C. § 2255(1). In contrast to § 2255,
which refers only to a conviction being “final,” with no additional explanation, §
2244 states that a one-year limitation period begins to run on “the date on which
the judgment became final by the conclusion of direct review or the expiration of
the time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A) (emphasis added).
In holding that § 2255's one-year period runs from the issuance of the mandate by
the court of appeals, the Torres and Gendron Courts relied on the absence of such
explicative language in § 2255(1), applying the principle of statutory interpretation
set forth in Russello v. United States, 464 U.S. 16, 23 (1983), namely, that “where
Congress includes particular language in one section of a statute but omits it in
another section of the same Act, it is generally presumed that Congress acts
intentionally and purposely in the disparate inclusion or exclusion.” See Gendron,
154 F.3d at 674. On the basis of this principle, the Torres and Gendron Courts
concluded that “final,” as used in § 2255(1) must mean something different than
“final” in § 2244, and must mean the issuance of the mandate on direct appeal.
But we do not believe that the use of this canon of statutory interpretation is
dispositive in this case, because the Supreme Court has already expressly
determined the meaning of the word “final” in the context of collateral review, and
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because both § 2244 and § 2255 use the term “final” to describe the judgment that
will trigger the limitation period. Each provision was enacted as part of AEDPA,
and each is found in Chapter 153 of Title 28. Under such conditions we presume
that Congress intended the word “final” to have the meaning articulated by the
Supreme Court, and to have the same meaning in both provisions. See Sorenson v.
Secretary of Treasury, 475 U.S. 851, 860, 106 S.Ct. 1600, 89 L.Ed.2d 855 (1986)
(“The normal rule of statutory construction assumes that identical words used in
different parts of the same act are intended to have the same meaning.”) (internal
quotations and citation omitted); Baskin v. United States, 998 F.Supp. 188, 189 (D.
Conn. 1998) (descriptive language of § 2244, coupled with use of “final” in both §
2255 and § 2244, means that § 2255's limitation period runs from “the conclusion
of direct review or the expiration of the time for seeking such review”). We note,
moreover, that there is no indication whatsoever in the AEDPA that Congress
intended to treat state and federal habeas petitioners differently with regard to the
period of limitation. See Kapral, 166 F.3d at 575.
In sum, we hold that a “judgment of conviction becomes final” within the
meaning of § 2255 as follows: (1) if the prisoner files a timely petition for
certiorari, the judgment becomes “final” on the date on which the Supreme Court
issues a decision on the merits or denies certiorari, or (2) the judgment becomes
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“final” on the date on which the defendant's time for filing such a petition expires.
CONCLUSION
For the foregoing reasons we AFFIRM the trial court’s dismissal of
Kaufmann’s habeas petition as to the Apprendi claims, but REVERSE the trial
court’s dismissal of Kaufmann’s petition as untimely because it was filed within
one year of the date on which his conviction became “final.” Accordingly, we
REMAND to the district court to consider Kaufmann’s ineffective assistance of
counsel claim on the merits.
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