United States v. Norman Harrington Wilson, A/K/A Stormin Norman

Affirmed by published opinion. Chief Judge WILKINSON wrote the opinion, in which Judge WIDENER joined. Judge MICHAEL wrote an opinion concurring in the judgment.

OPINION

WILKINSON, Chief Judge:

We must determine here how 28 U.S.C. § 2255’s one-year statute of limitations operates when a federal court of appeals affirms some of a defendant’s convictions but reverses others. Because § 2255’s statute of limitations was not tolled pending final resolution on all counts of defendant Wilson’s case, we affirm the district court’s dismissal of his habeas petition as untimely.

I.

On March 30, 1995, a jury convicted petitioner Norman H. Wilson of engaging in a continuing criminal enterprise (“CCE”), 21 U.S.C. § 848, conspiring to distribute crack cocaine, 21 U.S.C. § 846, and using or carrying a firearm during a drug trafficking offense, 18 U.S.C. § 924(c). Wilson was sentenced to concurrent life terms on his CCE and conspiracy convictions. In addition, he was sentenced to sixty months consecutively on his firearms conviction.

Wilson subsequently appealed his convictions to this court. On January 29, 1998, we affirmed Wilson’s CCE and firearms convictions. See United States v. Wilson, 135 F.3d 291, 307 (4th Cir.1998). In accordance with Supreme Court precedent, however, we remanded Wilson’s conviction on the conspiracy count “with in*219structions to vacate his conviction (and its accompanying sentence) on that one count.” Id. at 307. Wilson then sought review in the United States Supreme Court. On May 26, 1998, his application for certiorari was denied, thus concluding direct review of Wilson’s CCE and firearms convictions. See Wilson v. United States, 523 U.S. 1143, 118 S.Ct. 1852, 140 L.Ed.2d 1101 (1998).

On September 24, 1998, the district court, per our earlier instructions, vacated Wilson’s conspiracy conviction and its concurrent life sentence. The district court held that Wilson’s previous sentence was otherwise still in effect. The court entered a formal order to this effect on November 16,1998.

On September 13, 1999, Wilson filed this petition for collateral relief under 28 U.S.C. § 2255 (1994 & Supp. IV 1998). Because his conspiracy conviction had already been vacated, Wilson’s § 2255 motion challenged only the validity of his CCE and firearms convictions. The district court dismissed Wilson’s petition, however, ruling that these convictions became final on May 26, 1998. Thus, Wilson’s § 2255 motion was time barred under § 2255’s one-year statute of limitations. Wilson now appeals.

II.

Prior to 1996, there was no time limitation on a federal prisoner’s ability to collaterally attack his conviction in a § 2255 motion. See United States v. Torres, 211 F.3d 836, 838 (4th Cir.2000). This changed in 1996 with Congress’ enactment of the Antiterrorism and Effective Death Penalty Act, Pub.L. No. 104-132, 110 Stat. 1214 (“AEDPA”). AEDPA amended 28 U.S.C. § 2255 to provide a one-year limitations period for the filing of § 2255 motions. Section 2255 provides that the period of limitation will begin to run upon, inter alia, “the date on which the judgment of conviction becomes final.” 28 U.S.C. § 2255.*

Wilson contends his habeas petition was timely under § 2255. Specifically he argues that when a court of appeals reverses a defendant’s conviction or vacates a sentence on one count, the statute of limitations does not begin to run on any other count until a new judgment is entered by the district court on remand. Wilson notes that in this case, the district court did not formally vacate his conspiracy conviction and the resulting sentence until November 16, 1998. Wilson claims that since he filed his § 2255 motion on September 13, 1999, roughly ten months after he was resentenced, his motion is timely.

We disagree. Congress did not explicitly state in AEDPA when a “judgment of conviction becomes final” for purposes of § 2255. See Torres, 211 F.3d at 838. In Torres, however, this court noted that “for a defendant who files a petition for certio-rari with the Supreme Court, the conclusion of direct review occurs when the Supreme Court either denies his petition or decides his case on the merits. After the Supreme Court does either of these two things, the defendant’s judgment of conviction is final because literally nothing more occurs on direct review.” Torres, 211 F.3d at 839. Thus, Wilson’s convictions on the CCE and firearms counts became final on May 26, 1998, the date upon which the Supreme Court denied his application for certiorari. Since Wilson did not file his § 2255 motion until September 1999, nearly sixteen months later, his motion is untimely.

We see little merit in Wilson’s contention that § 2255’s statute of limitations *220does not begin to run on individual counts until a final judgment has been entered on all counts. See In re Taylor, 171 F.3d 185 (4th Cir.1999) (viewing petitioner’s § 2255 motion on his drug conspiracy sentence as separate from his § 2255 motion on his fire-arms conviction). In this case, the vacation of the single, discrete, conspiracy count had no effect whatsoever on Wilson’s CCE and fire-arms convictions. These are the only convictions which Wilson now challenges in his § 2255 motion.

On direct review, this court did not view Wilson’s multi-count conviction as unitary. See United States v. Wilson, 135 F.3d 291, 307 (4th Cir.1998). We affirmed Wilson’s convictions on both the CCE and firearms counts. Furthermore, we made it clear that Wilson’s case was only being remanded on the single conspiracy count: “Norman Wilson’s conviction on the conspiracy count is remanded to the district court with instructions to vacate his conviction (and its accompanying sentence) on that one count.” Wilson, 135 F.3d at 307 (emphasis added); see also id. at 303-04 (“Accordingly, we remand to the district court with instructions to vacate Norman Wilson’s conspiracy conviction and his resulting sentence on that count.”) (emphasis added). We did not regard the various counts upon which Wilson was convicted as a unified whole. Nor apparently did Wilson, who subsequently sought Supreme Court review of only his CCE and firearms convictions.

Wilson also contends that it would make more sense as a matter of efficiency and convenience to follow the Ninth Circuit’s decision in United States v. Colvin, 204 F.3d 1221 (9th Cir.2000), and combine all the counts into a single § 2255 proceeding. We decline this invitation. For one thing, it is doubtful that Wilson would ever seek collateral review of a district court’s dismissal of his conviction on the conspiracy count. Hence, it is unclear what value would be served by forcing courts to delay collateral review of Wilson’s other convictions until the district court has officially dismissed the conspiracy count.

Second, the policy arguments which Wilson proposes have previously been weighed and rejected by Congress. Entertaining Wilson’s challenges to his CCE and firearms convictions would run afoul of Congress’ clear intent to limit the collateral review of stale claims. Prior to the passage of AEDPA, a prisoner could at any time collaterally attack his conviction in a § 2255 motion. See 28 U.S.C. § 2255 (1994) (former version of § 2255, which expressly provided that a “motion for such [collateral] relief may be made at any time.”). However, Congress created § 2255’s one-year statute of limitations in order to prevent courts from entertaining stale claims on collateral review. Wilson’s petition challenges only his CCE and firearms convictions, but each had been final for more than a year.

III.

For the foregoing reasons, the judgment of the district court is

AFFIRMED.

The remaining three parts of § 2255's statute of limitations are not relevant to this appeal.