dissenting.
Because I believe that the statute of limitations should start to run forty days after the entry of the judgment of conviction, I respectfully dissent. I am convinced that the better view is to include the thirty-day excusable neglect period in determining when Sanchez Castellano’s conviction became final since he did not file a notice of appeal. Whether, or not a motion for extension of time would have been be granted is irrelevant in this-case. What is relevant is that an extension of time is available. Only when the time for seeking an appeal has been exhausted can the conviction be said to be “final” and the statute of limitations begin to run. The fact that Sanchez-Castellano did not file a motion for an extension of time is also irrelevant. What is also relevant is the fact that an avenue for appeal was still available to him for forty days after the judgment was entered. 28 U.S.C. § 2255 simply states that the statute of limitations begins to run on “the date on which the judgment of conviction becomes final.” The statute offers no guidance as to the meaning of “final.” Since the statute is silent, the choice of a time period is left to the Court. I see no good reason not to accept Sanehez-Castellano’s view that the forty-day time period is the appropriate one. No purpose is to be served by limiting the time period to ten days, except to limit the number of habeas petitions which are considered on the merits. Under the circumstances here and in like cases, I believe that “final” should be interpreted to mean when the opportunity for further review has completely expired. This does not occur until forty days after the judgment .of conviction is entered.
Nor do I believe that adopting this approach will, as the majority suggests, entitle all defendants “to this extended period of time, regardless of whether the district court found excusable neglect.” The ma*429jority says that if Sanchez-Castellano had filed a motion to extend time to file an appeal under Rule 4(b)(4) seventeen days after the entry of judgment of conviction and the district court denied it three days later, then “the judgment would become final twenty days after his last avenue of direct review had closed.” This is not entirely correct. The judgment would not be final twenty days after the last avenue of direct review had closed; rather, it would be final when the last avenue for direct review had closed, i.e. when the district court denied the motion. At that point, there is no longer an available avenue for seeking an appeal. In any event, this issue is not before us. In this case, Sanchez-Castellano’s avenue for appeal was foreclosed, and consequently the judgment of conviction became “final,” when the forty days expired.