Revised February 24, 2000
UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 98-50410
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
STEVEN LEE THOMAS, III,
Defendant-Appellant.
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No. 98-50411
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
HASHIM ESTEBAN THOMAS, also known as Joker,
Defendant-Appellant.
Appeals from the United States District Court
for the Western District of Texas
February 4, 2000
Before KING, Chief Judge, and DUHÉ and DeMOSS, Circuit Judges.
DeMOSS, Circuit Judge:
Federal prisoners Steven Lee Thomas and Hashim Esteban Thomas
appeal the district court’s order dismissing their 28 U.S.C. § 2255
motions as untimely filed. We affirm the district court’s
determination that the Thomases’ § 2255 motions were untimely,
although for reasons different than those articulated by the
district court.
I.
In 1995, brothers Steven and Hashim Thomas were convicted on
federal charges arising from their robbery of the Normangee State
Bank in Normangee, Texas. Their convictions were affirmed on
direct appeal, and this Court issued final mandates with respect to
both appeals in July 1996. The Thomases then filed petitions for
writ of certiorari with the Supreme Court, which were denied on
November 12, 1996. One year and three days later, on November 14,
1997, the Thomases filed their § 2255 motions for collateral relief
in the district court. Neither the facts relating to the Thomases’
well-planned robbery nor the substance of their § 2255 claim are
relevant to this appeal. Rather, the only issue for review is
whether the Thomases’ § 2255 motions seeking collateral review of
and relief from their criminal sentences were barred by
limitations. The Thomases filed their § 2255 motions after the
effective date of AEDPA. The motions are therefore controlled by
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the provisions of that statute. See Lindh v. Murphy, 117 S. Ct.
2059 (1997). Title 28 U.S.C. § 2255 provides that a one year
period of limitations is applicable to § 2255 motions. That one
year limitation period typically begins to run “on the date on
which the judgment of conviction becomes final.” 28 U.S.C.
§ 2255(1).1 Section 2255(1) does not, however, define when a
judgment of conviction becomes “final” for purposes of the
limitation period. That issue is currently the subject of some
disagreement among our sister circuit courts, see Adams v. United
States, 173 F.3d 1339, 1342 (11th Cir. 1999) (marshaling the
competing authorities); see also United States v. Gurrusquieta,
Nos. 3-97-CR-0158-P-19, 3-99-CV-0993-P, 1999 WL 1080914 (N.D. Tex.
Nov. 29, 1999), and has not been definitively decided by this
Court, see United States v. Flores, 135 F.3d 1000, 1006 n.20 (5th
Cir. 1998).
The primary issue for decision is whether a federal criminal
conviction becomes final for purposes of § 2255(1) when a final
judgment issues from the highest court to hear the case on direct
appeal, or instead, when the time for seeking further direct review
expires. See id. The district court opted in favor of the first
1
The date upon which the limitation period begins to run
may be extended beyond the date upon which the conviction becomes
final when certain circumstances have impeded the movants’ ability
to file a timely § 2255 motion. See 28 U.S.C. § 2255(2)-(4). None
of the alternative start dates is alleged to be applicable in this
case.
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alternative, holding that the Thomases’ convictions became final
and the limitation period began to run in July 1996, when this
Court issued final mandates on direct appeal. Given that the
Thomases did not file their § 2255 motions until November 1997,
more than one year later, the district court held that their § 2255
motions were barred by limitations. We granted a certificate of
appealability, limited to the narrow issue of when a federal
criminal conviction becomes final for purposes of 28 U.S.C.
§ 2255(1) when the movant has requested and has been denied a writ
of certiorari from the Supreme Court. This is a question of first
impression in this Circuit.
II.
The issue of when a federal conviction becomes “final” for
§ 2255(1) purposes has been addressed to a varying degree by the
Third, Tenth, Fourth, and Seventh Circuits.2 The Third and Tenth
Circuits adhere to the view that direct review concludes and a
conviction becomes final when a criminal defendant’s options for
further direct review are foreclosed, rather than when the highest
court to consider the case issues its judgment. Thus, those Courts
hold that the conviction becomes final: (1) when the ninety day
2
In addition, the Eleventh Circuit recently issued an
opinion documenting the relevant authorities, but avoiding any
decision on the issue as unnecessary to the case at hand. See
Adams v. United States, 173 F.3d 1339, 1342-43 (11th Cir. 1999).
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period for filing a petition for writ of certiorari expires if the
defendant does not seek a writ of certiorari from the Supreme
Court, see SUP. CT. R. 13, (2) when the Supreme Court denies the
petition for writ of certiorari if such a petition is filed and
denied, or (3) when the Supreme Court issues a decision on the
merits, if the petition for writ of certiorari is granted and the
case proceeds to decision. See, e.g., Rhine v. Boone, 182 F.3d
1153, 1155 (10th Cir. 1999), cert. denied, __ S. Ct. __, No. 99-
6598, 2000 WL 12398 (U.S. Jan 10, 2000); United States v. Kapral,
166 F.3d 565, 577 (3d Cir. 1998); United States v. Williamson, No.
99-3120, 1999 WL 1083750, at *1 n.1 (10th Cir. Dec. 2, 1999)
(unpublished); see also United States v. Miller, 197 F.3d 644, 652
n.9 (3d Cir. 1999) (applying rule announced in Kapral); United
States v. Lacey, No. 99-3030, 1998 WL 777067, at *1 (10th Cir. Oct.
27, 1998) (unpublished) (quoting Griffith v. Kentucky, 107 S. Ct.
708, 712 n.6 (1987), for the proposition that a federal conviction
becomes final when “`the availability of appeal has been exhausted,
and the time for filing a petition for certiorari elapsed or a
petition for certiorari [has been] finally denied’”); United States
v. Simmonds, 111 F.3d 737, 744 (10th Cir. 1997) (stating that a
federal conviction becomes final when the Supreme Court denies
certiorari in the context of an analysis of the retroactivity of §
2255). The Fourth Circuit has likewise followed the rule that a
federal criminal conviction does not become final for purposes of
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§ 2255(1) until the options for further direct review are exhausted
or the time for pursuing further direct review has expired in its
unpublished dispositions, see, e.g., United States v. Groves, No.
98-6635, 1999 WL 515445 at *2 n.* (4th Cir. July 21, 1999)
(unpublished) (collecting cases), although that court has left the
issue open for further decision in published decisions, see Davis
v. Scott, 176 F.3d 805, 808 n.* (4th Cir. 1999).
The Seventh Circuit has adopted a slightly different view,
holding that, at least in a case in which the criminal defendant
does not seek further review, a criminal conviction becomes final
when the highest court to consider the case issues its decision,
rather than when the time period for seeking further review has
expired. See Gendron v. United States, 154 F.3d 672, 674 (7th Cir.
1998), cert. denied sub nom., Ahitow v. Glass, 119 S. Ct. 1758
(1999). The district court’s holding that the Thomases’
convictions became final for purposes of § 2255(1) once this Court
issued final mandates in July 1996 relies heavily upon the
reasoning and result in Gendron. For the reasons that follow, we
believe this reliance was misplaced.
The Seventh Circuit’s holding in Gendron is tied to the
textual difference between § 2244(d)(1), which is applicable to
collateral review of state court decisions, and § 2255(1), which is
applicable to collateral review of federal court convictions.
Section 2244(d)(1) also provides for a one year limitation period.
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See 28 U.S.C. § 2244(d)(1). Section 2244(d)(1) provides, however,
that the one year period runs from “the date on which the judgment
became final by the conclusion of direct review or the expiration
of time for seeking such review.” Id. Section 2255(1), on the
other hand, provides merely that the limitation period runs from
“the date on which the judgment of conviction becomes final.” 28
U.S.C. § 2255(1). The Seventh Circuit reasoned that the
congressional decision to include the additional phrase providing
that a conviction becomes final upon “the conclusion of direct
review or the expiration of time for seeking such review” in
§ 2244(d)(1), while excluding that phrase from § 2255(1), must be
assigned some meaning. See Gendron, 154 F.3d at 674. The Seventh
Circuit noted that § 2244(d)(1) expressly forestalls the limitation
period by providing the petitioner time in which to decide whether
to seek further review. See id. at 674. That additional time
period is extended without regard to whether the petitioner
actually uses the opportunity to seek further available review.
Id. Section 2255, on the other hand, does not expressly provide
for that additional time period. Id. Thus, the Seventh Circuit
concluded that Congress must have intended for the limitation
period for “federal prisoners who decide not to seek certiorari
with the Supreme Court” to run from the date of the appellate
court’s mandate on direct appeal. Id.
The Third Circuit rejected the textual argument underlying the
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Seventh Circuit’s decision in Gendron in United States v. Kapral,
166 F.3d 565 (3d Cir. 1998). In Kapral, the district court relied
upon the textual differences between § 2244(d)(1) and § 2255(1) to
support its holding that § 2255(1)’s limitation period begins to
run once the appellate mandate is issued on direct appeal. Kapral,
166 F.3d at 573-75. The Third Circuit disagreed, concluding that
long-standing principles of finality in the collateral review
context outweigh any inference that could be drawn from the textual
difference. Id. at 570-77. The Third Circuit also faulted the
Seventh Circuit and the district court in that case for not taking
a third AEDPA limitation provision into account when trying to
divine what Congress intended in § 2255(1). The Third Circuit
quoted the limitation period applicable under Chapter 154 of AEDPA
to certain petitions for collateral review of state court
convictions involving the death penalty. That provision, which is
codified at 28 U.S.C. § 2263 provides, in relevant part, that a
habeas petition must be filed within 180 days “after final State
court affirmance of the conviction and sentence on direct review or
the expiration of the time for seeking such review.” Id. at
§ 2263(a). The Third Circuit reasoned that “Congress’ use of
`State court’ to modify the well-settled meaning of direct review
(which includes the right to seek review in the Supreme Court),
provides strong support for the conclusion that the limitations
periods under § 2244 and § 2255 -- which lack an analogous modifier
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-- run from the conclusion of Supreme Court review.” Id. at 576.
The Third Circuit also noted that both §§ 2244 and 2255 explicitly
tie the applicable limitations period to the “finality” of a
conviction, rather than an “affirmance” of that conviction, as does
§ 2263. Id. The Third Circuit also observed that § 2263 provides
that the limitations period is “tolled” by the filing of a petition
for writ of certiorari. See 28 U.S.C. § 2263(b)(1). Tolling is
necessary under that section because the limitation period starts
to run before the time period for Supreme Court certiorari review
begins. Kapral, 166 F.3d at 576. The Third Circuit reasoned that
the absence of any analogous tolling provision for Supreme Court
review in either § 2244 or § 2255 strongly suggests that Congress
intended for the limitation provisions contained therein to begin
after the time for certiorari review expired. Id. at 577.
The Third Circuit’s elaborated review of AEDPA’s limitation
provisions is persuasive. We agree that the mere omission of the
phrase “by the conclusion of direct review or the expiration of
time for seeking such review” in § 2255 cannot be reliably invoked
for the proposition that Congress intended to disrupt settled
precedent by requiring that a criminal defendant pursue collateral
relief before the time for seeking direct review expires and during
a time period in which he or she may still rightfully be
considering the wisdom of further direct review. Indeed, such a
rule would be inconsistent with well-settled principles of finality
9
in the collateral review context. “Collateral attack is generally
inappropriate if the possibility of further direct review remains
open.” See Kapral, 166 F.3d at 570; see also Feldman v. Henman,
815 F.2d 1318, 1320-21 (9th Cir. 1987). Such a rule would also be
inconsistent with analogous Supreme Court precedent. See Griffith
v. Kentucky, 107 S. Ct. 708, 712 n.6 (1987) (federal conviction
becomes final when 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”).
To date, no other circuit has adopted Gendron’s competing view that
§ 2255's limitation period begins to run when the appellate mandate
issues if the defendant does not seek a petition for certiorari.
More importantly, even if we were persuaded that the rationale
in Gendron should be extended, Gendron does not set forth a
competing rule for those situations where, as here, the movant
filed a petition for writ of certiorari. The movant in Gendron did
not file any petition for writ of certiorari with the Supreme
Court. See Gendron, 154 F.3d at 673. Moreover, the Seventh
Circuit’s holding that the one year limitation period in § 2255(1)
begins to run when the appellate mandate issues is expressly
limited to cases in which the movant did not file a petition for
writ of certiorari. See id. at 674 (the limitation period for
“federal prisoners who decide not to seek certiorari with the
Supreme Court” runs from the date of the appellate court’s mandate
10
on direct appeal).
The district court did not cite any authority supporting its
decision to extend the rationale in Gendron to this case, in which
the movants did seek and were denied a writ of certiorari to the
Supreme Court. Certainly, none of the federal circuits to have
addressed the issue have gone so far, and some courts have directly
rejected that approach. See, e.g., Stead v. United States, 67 F.
Supp.2d 1064, 1072 (D.S.D. 1999); Carracedo v. Artuz, 51 F. Supp.2d
283, 284 (S.D.N.Y. 1999) (collecting cases); see also Kapral, 166
F.3d at 577.
In sum, there is a circuit conflict with respect to when a
federal criminal conviction becomes final for purposes of § 2255 if
the defendant does not seek a petition for writ of certiorari from
the judgment of the appellate court. Compare Kapral, 166 F.3d at
577 (when a federal criminal defendant does not file a petition for
writ of certiorari with the Supreme Court, a federal conviction
becomes final for § 2255(1) purposes when “the defendant’s time for
filing a timely petition for certiorari review expires”), with
Gendron, 154 F.3d at 674 (when a federal criminal defendant does
not file a petition for writ of certiorari with the Supreme Court,
a federal conviction becomes final for § 2255(1) purposes when the
appellate court issues the mandate on direct criminal appeal). The
authority is consistent, however, with respect to the date on which
§ 2255's limitation period begins to run when the defendant does
11
seek such a review. Those circuits squarely addressing the issue
have held that the time period begins to run when a petition for
certiorari is denied by the Supreme Court or when the Supreme Court
issues a decision on the merits. We are persuaded by that approach
and hold that the Thomases’ convictions became final on the date
upon which the Supreme Court denied their petitions for writ of
certiorari on November 12, 1996. Because the Thomases’ motions
were not filed until November 14, 1996, more than one year after
that date, their § 2255 motions were untimely and were properly
dismissed by the district court.
III.
The Thomases offer two arguments for extending the start date
of the one year period of limitations beyond the date upon which
the Supreme Court denied their petitions for writ of certiorari.
The Thomases first argue that their convictions became final, at
the earliest, when the Fifth Circuit received notice from the
Supreme Court that the Thomases’ petitions for writ of certiorari
were denied. The parties agree that that notice was received by
this Court on November 15, 1996. Thus, the Thomases maintain that
their § 2255 motions, filed exactly one year later on November 14,
1997, were timely.
The Thomases support this argument with citation to Supreme
Court Rule 45.3, which provides in pertinent part:
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In a case on review from any court of the United
States, as defined by 28 U.S.C. § 451, a formal
mandate does not issue unless specifically
directed; instead, the Clerk of this Court will
send the clerk of the lower court a copy of the
opinion or order of this Court and a certified copy
of the judgment. The certified copy of the
judgment, prepared, and signed by this Court’s
Clerk, will provide for costs if any are awarded.
SUP. CT. R. 45.3. The Thomases argue, based upon the text of this
rule, that the Supreme Court’s decision denying certiorari is not
final until the certification of that decision is received by the
appellate court.
We disagree. The provisions of Supreme Court Rule 45.3 refer
to the mandate and judgment that issues after a Supreme Court
decision on the merits. The denial of certiorari review is
governed by Supreme Court Rule 16.3, which provides:
Whenever the Court denies a petition for writ of
certiorari, the Clerk will prepare, sign, and enter
an order to that effect and will notify forthwith
counsel of record and the court whose judgment was
sought to be reviewed. The order of denial will
not be suspended pending disposition of a petition
for rehearing except by order of the Court or a
Justice.
SUP. CT. R. 16.3. Thus, notice of an order denying a petition for
writ of certiorari is sent directly to the parties. Moreover, an
order denying a petition for writ of certiorari is effective
immediately upon issuance, absent extraordinary intervention by the
Supreme Court or a Justice of the Supreme Court. For these
reasons, we conclude that there is no justification or authority
for delaying the one year period of limitations until the appellate
13
court receives notice that the Supreme Court has denied a criminal
defendant’s petition for writ of certiorari. See Adams v. United
States, 173 F.3d 1339, 1342-43 (11th Cir. 1999) (rejecting the
argument that the one year limitation period in § 2255(1) does not
begin to run until after the lower court receives notice that a
defendant’s petition for writ of certiorari has been denied).
Alternatively, the Thomases argue that their convictions did
not become final until the twenty-five day period allotted for the
filing of a petition for rehearing of the Supreme Court’s denial of
certiorari review expired. See SUP. CT. R. 44.2. We reject this
argument for similar reasons. The plain text of Supreme Court Rule
16.3 provides that an order denying certiorari review takes legal
effect and is not suspended pending any application for rehearing.
CONCLUSION
For the foregoing reasons, we hold that, when a federal
criminal defendant files a timely petition for writ of certiorari
review on direct appeal and that petition is subsequently denied by
the Supreme Court, the federal judgment of conviction becomes final
for purposes of the one year limitation period set forth in
§ 2255(1) on the date that the Supreme Court denies the defendant’s
petition for writ of certiorari on direct review. The Supreme
Court denied the Thomases’ petitions for writ of certiorari in this
case on November 12, 1996. The Thomases did not file their § 2255
14
motions until November 14, 1997, more than one year later. Their
motions were therefore untimely and barred by the applicable
limitation period.
Accordingly, the district court’s decision dismissing the
Thomases’ § 2255 motions for collateral relief from their federal
sentences is AFFIRMED.
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