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