United States v. Gamble

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 98-50920
Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

CHAVOR ANTWAN GAMBLE,

Defendant-Appellant,

Appeal from the United States District Court for the
Western District of Texas

April 18, 2000

Before JOLLY, JONES, and BENAVIDES, Circuit Judges.

PER CURIAM:

The question in this appeal is whether appellant’s habeas

petition was timely filed under 28 U.S.C. § 2255, as amended by the

Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA).

Section 2255 bars any petition filed, on behalf of a federal

prisoner more than one year after the final judgment of conviction,

but it does not define when a judgment becomes final. Following

decisions of this Court and other circuits, we hold that the

conviction becomes final, and the one-year period begins to run,

upon expiration of the time for seeking certiorari in the U.S.

Supreme Court, even where, as here, the appellant has not actually

filed such a petition.

1
 Gamble’s direct appeal to this court of his conviction

for crack cocaine possession was dismissed on September 10, 1996,

for failure to pay the docketing fee or to seek in forma pauperis

status. His pro se § 2255 motion was filed in the district court

on December 4, 1997. The district court dismissed the petition,

rejecting Gamble’s argument that his conviction was not “final” for

AEDPA limitations purposes until the time for filing a petition for

certiorari expired. Gamble has appealed.

The district court’s interpretation of § 2255 finds

support in a Seventh Circuit decision.1 This court, however,

recently distanced itself from the reasoning of that circuit,

holding that when a federal criminal defendant files a timely

certiorari petition on direct appeal, and the Supreme Court denies

the petition, the federal judgment of conviction becomes “final”

under § 2255 on the date of the Supreme Court’s denial. United

States v. Thomas, 203 F.3d 350, 354-55 (5th Cir. 2000). Thomas

carefully avoids the precise issue in this case -- the “finality”

date of a conviction when no petition for certiorari has been filed

-- but its disagreement with Gendron is unmistakable. Thomas also

cites approvingly decisions of the Third and Tenth Circuits that “a

conviction becomes final when a defendant’s options for further

direct review are foreclosed,” whether or not those options have

been pursued. Id. at 352; see, e.g., Kapral v. United States, 166

1
See Gendron v. United States, 154 F.3d 672, 674 (7th Cir. 1998),
cert. denied, 119 S.Ct. 1758 (1999).

2
F.3d 565, 571 (3d Cir. 1999); Rhine v. Boone, 182 F.3d 1153, 1155

(10th Cir. 1999), cert. denied, 120 S.Ct. 808 (2000).

Fidelity to the reasoning of Thomas and to the developing

majority rule compel us to conclude that Gamble’s petition was

timely. It was filed within a year after the ninety-day period for

seeking certiorari review of his conviction as finalized in this

court.2

The judgment of dismissal is therefore REVERSED, and the

case is REMANDED to the district court for evaluation on the

merits.

2
The United States contends that Gamble’s time limit should have
elapsed because he could not seek certiorari from a dismissal for want of
prosecution by this court. Alternatively, the government asserts that Gamble’s
petition fails on the merits. We have no jurisdiction to review the latter
argument, Sonnier v. Johnson, 161 F.3d 941, 945-46 (5th Cir. 1998), and we are
unpersuaded by the former.

3