IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 23, 2008
No. 05-11169 Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
JOEL PLASCENCIA, also known as “Oskie”
Defendant - Appellant
Appeal from the United States District Court
for the Northern District of Texas
Before REAVLEY, BENAVIDES, and OWEN, Circuit Judges.
REAVLEY, Circuit Judge:
Federal prisoner Joel Plascencia appeals from the district court’s dismissal
of his 28 U.S.C. § 2255 motion, which was determined to be time-barred. We
conclude that Plascencia’s conviction became final when the time expired to file
a timely notice of appeal on direct review and that Plascencia is not entitled to
the benefit of the 90-day period for seeking certiorari, after dismissal following
denial of a FED. R. APP. P. 4(b)(4) motion, when determining § 2255’s limitation
period. We therefore AFFIRM the district court’s judgment.
I.
Plascencia pleaded guilty to conspiracy to distribute cocaine and was
sentenced to 210 months in prison. The district court entered its judgment on
No. 05-11169
December 23, 2003. Plascencia is deemed to have filed his pro se notice of appeal
on January 15, 2004.1 We determined that a timely notice of appeal was due by
January 12, 2004. In accord with our customary policy, we construed the late
notice as a motion under FED. R. APP. P. 4(b)(4) for extension of time to file a
notice of appeal.2 We remanded for the district court to determine whether
Plascencia’s untimely filing was due to excusable neglect or good cause. After
briefing by Plascencia and the Government, the district court determined that
Plascencia had not made that showing. On June 9, 2004, we concluded that the
district court’s determination was not an abuse of discretion, and we dismissed
the appeal.3
Plascencia then filed a § 2255 motion on June 15, 2005. The district court
dismissed the motion as untimely, reasoning that Plascencia’s conviction became
final, and the one-year limitation period began, on January 12, 2004, at the
expiration of the time for Plascencia to file a timely notice of appeal. The court
determined that Plascencia’s § 2255 motion was due by January 12, 2005, and
that the June 15, 2005 motion was therefore untimely. Plascencia appeals from
the district court’s dismissal. We granted him a certificate of appealability on the
issue whether, in determining the limitation period for purposes of § 2255, a
federal prisoner has the benefit of an additional 90-day period in which to seek
certiorari review in the Supreme Court from an appellate court’s affirmance of
the denial of a Rule 4(b)(4) motion.
1
See Houston v. Lack, 487 U.S. 266, 276, 108 S. Ct. 2379, 2385 (1988) (concluding that
a prisoner’s pro se notice of appeal is deemed filed when delivered to prison authorities for
forwarding to the court clerk).
2
See, e.g., United States v. Golding, 739 F.2d 183, 184 (5th Cir. 1984).
3
United States v. Plascencia, No. 04-10079 (5th Cir. June 9, 2004) (unpublished).
2
No. 05-11169
II.
Plascencia contends that his conviction did not become final on direct
appeal until the expiration of the 90-day period for seeking certiorari from this
court’s dismissal of the appeal on June 9, 2004. We review the district court’s
factual findings relating to a § 2255 motion for clear error and conclusions of law
de novo.4
Section 2255 provides a one-year limitation period that begins on the
latest of four possible dates for a federal prisoner to seek collateral review of his
conviction and sentence. The only date relevant in this case is “the date on
which the judgment of conviction becomes final.”5 The statute does not define
when a conviction becomes final for purposes of the limitation period.6 We also
have not addressed when a federal conviction becomes final for purposes of
§ 2255 when, as here, the prisoner did not file a timely direct appeal.
We have observed, however, that there is no indication Congress intended
federal and state prisoners to be treated differently in habeas proceedings and
that “final” in § 2255 has the same meaning as “final” used for the analogous
limitation period in 28 U.S.C. § 2254 proceedings.7 For purposes of § 2254
proceedings, a state prisoner’s conviction becomes final generally upon the
expiration of direct review or the time for seeking direct review.8 When a state
prisoner has appealed his conviction to the state court of last resort, the
conclusion of the direct review process includes the 90-day period for seeking
4
United States v. Torres, 163 F.3d 909, 911 (5th Cir. 1999).
5
28 U.S.C. § 2255(f)(1).
6
United States v. Thomas, 203 F.3d 350, 351–52 (5th Cir. 2000).
7
Reyes-Requena v. United States, 243 F.3d 893, 898 (5th Cir. 2001); see 28 U.S.C.
§ 2244(d)(1)(A).
8
Roberts v. Cockrell, 319 F.3d 690, 694 (5th Cir. 2003).
3
No. 05-11169
certiorari in the Supreme Court.9 If the prisoner stops the appeal process before
that point, however, the conviction becomes final when the time for seeking
further review in the state court expires.10
Applying like reasoning to federal prisoners, at least three of our sister
circuits have held that when a federal prisoner fails to file a notice of appeal
from his conviction (in other words, when he fails to pursue the direct appeal
process), the conviction becomes final for purposes of § 2255 upon the expiration
of the 10-day period for filing a direct appeal.11 Although not having previously
said so explicitly, we agree with this approach to the finality of federal
convictions, as it is consistent with our treatment of the finality of state
convictions.
In the instant case, Plascencia had until January 12, 2004, to file his
timely notice of appeal. By failing to file an effective notice of appeal by January
12, 2004, Plascencia allowed the direct review process to expire, and his
conviction became final on that date.
Rule 4 provides limited recourse for defendants who miss the filing
deadline by permitting the district court, upon finding good cause or excusable
neglect, to extend the time to file a notice of appeal for up to 30 days from the
expiration of the time otherwise prescribed.12 As noted above, we followed our
customary practice in criminal cases by treating Plascencia’s late notice of
appeal as a Rule 4(b)(4) motion for extension of time to file an appeal.13 Because
9
Id.
10
Id.
11
See Moshier v. United States, 402 F.3d 116, 118 (2d Cir. 2005); Sanchez-Castellano
v. United States, 358 F.3d 424, 428 (6th Cir. 2004); Kapral v. United States, 166 F.3d 565, 577
(3d Cir. 1999).
12
See FED. R. APP. P. 4(b)(4).
13
See Golding, 739 F.2d at 184.
4
No. 05-11169
the district court found no good cause or excusable neglect and we concluded that
the district court’s ruling was not an abuse of discretion, we dismissed the
appeal.14
Plascencia insists, however, that his conviction was not final because he
had 90 days to seek certiorari after our dismissal on June 9, 2004. In Clay v.
United States, the Supreme Court held that if a federal defendant appeals his
conviction to the court of appeals and then does not seek certiorari, the
conviction becomes final when the 90-day period expires during which the
defendant could have filed a petition for certiorari.15 The rule of Clay provides
no help to Plascencia in this case because Plascencia, unlike Clay, never filed an
effective notice of appeal in this court.16 Any petition for certiorari that
Plascencia could have filed following our dismissal would not have contested
direct review of his conviction. Instead, it would have concerned only our ruling
that the district court did not abuse its discretion by declining to grant
Plascencia an appeal. That ruling did not address Plascencia’s conviction.
14
Although when we dismissed the appeal we noted that a timely notice of appeal is a
prerequisite to appellate jurisdiction, which was our traditional view, we have since recognized
that Supreme Court precedent now establishes that Rule 4’s time requirement for filing notices
of appeal in criminal cases is mandatory but not jurisdictional. See United States v. Martinez,
496 F.3d 387, 388–89 (5th Cir. 2007); see also Eberhart v. United States, 546 U.S. 12, 18–19,
126 S. Ct. 403, 406–07 (2005) (distinguishing between jurisdictional rules and
nonjurisdictional claims-processing rules). Nevertheless, the distinction between jurisdictional
rules and inflexible claims processing rules does not render the dismissal erroneous because
a court does not err by strictly enforcing the latter. United States v. Leijano-Cruz, 473 F.3d
571, 574 (5th Cir. 2006).
15
537 U.S. 522, 532, 123 S. Ct. 1072, 1079 (2003); see also United States v. Gamble, 208
F.3d 536, 536–37 (5th Cir. 2000).
16
See 537 U.S. at 525, 123 S. Ct. at 1074 (holding that “a judgment of conviction
becomes final when the time expires for filing a petition for certiorari contesting the appellate
court’s affirmation of the conviction.” (emphasis added)).
5
No. 05-11169
Therefore, the 90-day certiorari period is not applicable in Plascencia’s case to
determine when his conviction became final.17
As noted above, Plascencia’s conviction became final upon the expiration
of the time for filing a timely notice of appeal on January 12, 2004. The
limitation period for seeking § 2255 relief therefore commenced on that date, and
Plascencia’s § 2255 motion was due by January 12, 2005. Because Plascencia
did not file his § 2255 motion until June 15, 2005, the motion was untimely.
AFFIRMED.
17
The dissent would apply the 90-day certiorari period in the instant case because “[o]ur
June 9, 2004 dismissal of Plascencia’s direct criminal appeal was reviewable by the Supreme
Court as part of that appeal.” (Emphasis added). Although on June 9, 2004, we dismissed
Plascencia’s “appeal,” there was no direct appeal pending because Plascencia had never filed
an effective direct appeal of his conviction. The dissent contends that Plascencia’s late notice
of appeal was sufficient to suspend the finality of Plascencia’s conviction because the ten-day
filing period is nonjurisdictional, and it implies that the Government’s failure to object to the
late notice supports its position because a failure to object forfeits the objection. Whether or
not the Government objected is irrelevant under the circumstances of this case because the
Government never had an opportunity to object. We remanded to the district court before a
briefing notice was even issued. As noted above, Plascencia’s “notice of appeal” was construed
as nothing more than a Rule 4(b)(4) motion for extension of time to file an appeal, which
requires a finding of good cause or excusable neglect. See Golding, 739 F.2d at 184. As we
noted in Golding, “[w]e presume neither the presence nor absence of excusable neglect but
defer to the district court for this determination.” Id. Seeking certiorari review of the denial
of such a motion is not the same as seeking review of an adjudication of the merits of
Plascencia’s direct criminal appeal. Had Plascencia allowed the ten-day appeal period to expire
and then done nothing, there is no doubt that the conviction would be final at the expiration
of the ten days. Yet, the dissent’s view, carried to its logical conclusion, would allow a
defendant to rescind that finality and obtain tolling of the limitations period by filing a non-
effective late notice, no matter how much time has passed after the conviction, simply because
the defendant could always seek certiorari review of our decision on the subsequent treatment
of the notice. We do not think such a result is in accord with the intent of the AEDPA.
6
No. 05-11169
PRISCILLA R. OWEN, Circuit Judge, dissenting:
Although there is room for debate as to when a “judgment of conviction
becomes final” for purposes of 28 U.S.C. § 2255, I respectfully dissent. Our June
9, 2004 dismissal of Plascencia’s direct criminal appeal was reviewable by the
Supreme Court as part of that appeal. Accordingly, I would hold that
Plascencia’s judgment of conviction did not become final, within the meaning of
§ 2255, until the time for filing a petition for certiorari seeking review of that
dismissal expired.
Plascencia has filed the instant motion seeking a writ of habeas corpus
pursuant to 28 U.S.C. § 2255. At issue is the meaning of subsection (f)(1) of that
statute, which provides in pertinent part: “A 1-year period of limitation shall
apply to a motion under this section. The limitation period shall run from . . .
the date on which the judgment of conviction becomes final.”1
Plascencia filed a notice of appeal after he was convicted but did so three
days beyond the ten-day period specified in Rule 4(b)(1)(A)(i) of the Federal
Rules of Appellate Procedure. Although the Government did not object to the
late filing, this court, on its own motion, remanded to the district court to
determine if there was good cause or excusable neglect within the meaning of
Rule 4(b)(4). The district court concluded there was not, and we agreed,
dismissing the appeal as untimely.2
The Supreme Court has held in Clay v. United States that “[w]hen a
defendant in a federal prosecution takes an unsuccessful direct appeal from a
judgment of conviction, but does not next petition for a writ of certiorari . . . a
judgment of conviction becomes final when the time expires for filing a petition
1
28 U.S.C. § 2255(f)(1).
2
United States v. Plascencia, No. 04-10079 (5th Cir. June 9, 2004) (unpublished).
7
No. 05-11169
for certiorari contesting the appellate court’s affirmation of the conviction.”3 In
reaching this decision, the Court observed that “[f]inality is variously defined,”
and “its precise meaning depends on context.”4 The context of 28 U.S.C. § 2255
“is postconviction relief, a context in which finality has a long-recognized, clear
meaning: Finality attaches when this Court affirms a conviction on the merits
on direct review or denies a petition for a writ of certiorari, or when the time for
filing a certiorari petition expires.”5
The direct appeal to the court of appeals at issue in Clay was apparently
timely, and the court of appeals ruled on the merits, affirming the defendant’s
convictions. That is not the case here, and the Supreme Court has not addressed
whether filing a timely notice of appeal makes a difference in construing section
2255(f)(1). But an order of a court of appeals dismissing an appeal as untimely
could be reversed by the Supreme Court. An appeal on the merits could then
proceed on remand, and it would seem that the underlying judgment of
conviction would not be final until that appeal and the ensuing period for
seeking certiorari concluded. We cannot know whether a court of appeals’s
dismissal will be reversed until the time for seeking a writ of certiorari has
passed without the filing of such a petition or the filing and ultimate disposition
of a certiorari petition has occurred.
In Eberhart v. United States the Supreme Court strongly indicated that
the filing of a late notice of appeal in a direct federal criminal appeal does not
deprive an appellate court of subject matter jurisdiction.6 The Court discussed
3
537 U.S. 522, 524-25 (2003).
4
Id. at 527.
5
Id.
6
546 U.S. 12, 17-18 (2005).
8
No. 05-11169
its prior decision in United States v. Robinson7 in which the defendants filed
notices of appeal eleven days past the ten-day time period set forth in former
Rule 37(a)(2) of the Federal Rules of Criminal Procedure. At the time, Rule 45(b)
of the Federal Rules of Criminal Procedure provided that the district court could
enlarge periods of time set forth in the rules for excusable neglect, “‘but the court
may not enlarge . . . the period for taking an appeal.’”8 The Supreme Court held
in Robinson that this language was plain and observed that “courts have
uniformly held that the taking of an appeal within the prescribed time is
mandatory and jurisdictional.”9 It therefore held that the district court had no
authority to extend the time for filing a notice of appeal.10 But in Eberhart, the
Supreme Court explained that the ten-day time period was not jurisdictional but
instead “describe[d] emphatic time prescriptions in rules of court.’”11 The Court
observed, “[w]e need not overrule Robinson . . . to characterize” certain rules of
procedure “as claim[s]-processing rules.”12
The ten-day filing period in Federal Rule of Appellate Procedure
4(b)(1)(A)(i) accordingly appears to be a nonjurisdictional claims-processing rule
in criminal cases.13 This is because the ten-day period for filing a notice of
appeal in a criminal case has been established by a court rule not by statute.14
7
361 U.S. 220, 221 (1960).
8
Id. at 223 (quoting former Rule 45(b)).
9
Id. at 229.
10
Id. at 230.
11
546 U.S. at 18 (quoting Kontrick v. Ryan, 540 U.S. 443, 454 (2004)).
12
Id. at 16.
13
See id. at 15-16.
14
See generally Bowles v. Russell, 127 S. Ct. 2360, 2365 (2007) (explaining the
“distinction between court-promulgated rules and limits enacted by Congress”and that the 90-
day period for filing a petition for a writ of certiorari in the Supreme Court is a “statute-based
9
No. 05-11169
If the Government fails to object in a criminal case to the late filing of a notice
of appeal, the objection may be forfeited.15 It seems incorrect, therefore, for the
panel majority to conclude that when “we dismissed Plascencia’s ‘appeal,’ there
was no direct appeal pending because Plascencia had never filed an effective
direct appeal of his conviction.”16 At least while proceedings were pending in our
court and an issue of whether there was good cause or excusable neglect was
under consideration, the notice of appeal was extant. The appeal may have been
subject to dismissal because it was untimely, but that would not seem to render
it a nullity from its inception. But in any event, review of our dismissal order
was part of the direct appeal process, and Plascencia’s judgment of conviction did
not become final within the meaning of § 2255(f)(1) until the direct review
process had come to an end.
In construing similar, though not identical, provisions in the one-year
limitation pertaining to habeas review of state convictions in 28 U.S.C.
§ 2244(d)(1), which provides “[t]he limitation period shall run from the latest
of . . . the date on which the judgment became final by the conclusion of direct
review or the expiration of the time for seeking such review,”17 the Supreme
Court emphasized “the conclusion of direct review.”18 The Court said, “[w]hen
filing period for civil cases” and thus “jurisdictional” but in criminal cases, “‘[t]he procedural
rules adopted by the Court for the orderly transaction of its business are not jurisdictional and
can be relaxed by the Court in the exercise of its discretion.’”) (quoting Schacht v. United
States, 398 U.S. 58, 64 (1970)).
15
See Eberhart, 546 U.S. at 18; cf. Day v. McDonough, 547 U.S. 198, 202 (2006)
(holding that a “federal court ha[s] discretion . . . to dismiss [a habeas petition] as untimely
under AEDPA’s one-year limitation” even though the State asserted the petition was timely;
if this holding were extended by analogy, then a court of appeals might sua sponte question the
timeliness of a notice of appeal in a federal criminal appeal).
16
Ante, p. __ n.17.
17
28 U.S.C. § 2244(d)(1).
18
Lawrence v. Florida, 127 S. Ct. 1079, 1083 (2007) (emphasis in original).
10
No. 05-11169
interpreting similar language in § 2255, we explained that ‘direct review’ has
long included review by this Court. . . . Indeed, we noted that ‘[t]he Courts of
Appeals have uniformly interpreted “direct review” in § 2244(d)(1)(A) to
encompass review of a state conviction by this Court.’”19 The effect of a late
notice of appeal was not before the Supreme Court, but its rationale indicates
that “direct review” and “the time for seeking such review” does not end simply
because the direct appellate process proceeds no further than a state court of last
resort or federal appellate court. In Clay, the Supreme Court considered at some
length the similarities and differences between the respective one-year
limitation periods in § 2244(d)(1)(A) and § 2255(f)(1) and concluded that “[a]n
unqualified term—here ‘becomes final’— . . . calls for a reading surely no less
broad than a pinpointed one—here, § 2244(d)(1)(A)’s specification ‘became final
by the conclusion of direct review or the expiration of the time for seeking such
review.’”20 “[B]ecomes final” includes the time for filing a petition for writ of
certiorari with the Supreme Court even if no petition is filed.21
None of the three decisions from other circuits cited by the panel majority
are directly on point. In Moshier v. United States, the defendant did not attempt
a direct appeal of his federal conviction at all.22 The Second Circuit’s
unremarkable holding was that “for purposes of § 2255 motions, an unappealed
federal criminal judgment becomes final when the time for filing a direct appeal
expires.”23 The Sixth Circuit in Sanchez-Castellano v. United States came closer
19
Id. (quoting Clay v. United States, 537 U.S. 522, 527-28 (2003)).
20
Clay, 537 U.S. at 530.
21
Id. at 532.
22
402 F.3d 116, 117 (2d Cir. 2005) (“Moshier did not file a direct appeal from the
judgment, possibly because he had waived his right to appeal in a plea agreement.”).
23
Id. at 118.
11
No. 05-11169
to deciding the question before us, but the court’s statements on which the
majority presumably relies are dicta because the defendant in Sanchez-
Castellano had not filed any appeal, timely or otherwise, from his underlying
federal conviction.24 The Sixth Circuit said in that case, “At least in the absence
of an actual district court determination of good cause or excusable neglect, that
date [the date the judgment becomes final for purposes of 28 U.S.C. § 2255] is
ten days after the entry of judgment.”25 This arguably implies that if a late
appeal were filed, and the district court failed to find good cause or excusable
neglect, the judgment would be considered final ten days after the entry of
judgment. But the Sixth Circuit had no occasion to consider the outcome if the
defendant had petitioned the Supreme Court to review the dismissal of his
appeal or even if he had not so petitioned. The Sixth Circuit was focused solely
on the argument that thirty days should be added to the ten-day window to
appeal in every case because of the possibility of an extension for time to appeal
pursuant to Rule 4. The court rejected that argument. Even in this regard, the
Sixth Circuit’s actual holding was only that when there is no direct appeal of the
judgment of conviction, that judgment became final when the time for filing a
direct appeal expired.26 The third case cited by the majority, the Third Circuit’s
decision in Kapral v. United States,27 addressed essentially the same question
24
358 F.3d 424, 424-25 (6th Cir. 2004) (“The issue presented in his appeal is whether,
for a federal defendant who did not seek a direct appeal, the one-year statute of limitations for
§ 2255 cases starts ten days or forty days after entry of the judgment of conviction. The time
for filing a direct appeal is ten days after entry of judgment, but pursuant to Federal Rule of
Appellate Procedure 4(b)(4) a federal defendant can seek an extension of time—for excusable
neglect or good cause—up to the fortieth day after entry of judgment. Sanchez-Castellano
maintains that the judgment did not become final until the last possible opportunity to seek
review of his sentence had passed.”).
25
Id. at 427.
26
Id. at 428.
27
166 F.3d 565 (3d Cir. 1999).
12
No. 05-11169
subsequently presented to the Supreme Court in Clay.28 The defendant in
Kapral appealed his conviction, it was affirmed, and he did not file a petition for
certiorari.29 The Third Circuit held that the one-year limitation period under 28
U.S.C. § 2255 did not commence until the time for filing with the Supreme Court
expired.30
The panel majority concludes that even if Plascencia had filed a petition
for certiorari “following our dismissal”, that petition “would not have contested
direct review of his conviction. Instead, it would have concerned only our ruling
that the district court did not abuse its discretion by declining to grant
Plascencia an appeal.”31 This is a reasonable argument, but on balance, it would
seem that 28 U.S.C. § 2255(f)(1)’s focus is when a criminal conviction in a federal
court becomes final and no longer subject to direct review rather than the
intricacies of how the direct appeal process is concluded. As considered above,
if a defendant failed to petition for a writ of certiorari after an appeal was
decided, we could say at the end of the ninety-day period for filing that we now
know the appeal was final when the court of appeals issued its mandate. But
that is not how the Supreme Court has construed 28 U.S.C. § 2255.32
The panel majority says “the dissent’s view, carried to its logical
conclusion, would allow a defendant to . . . obtain tolling of the limitations period
by filing a non-effective late notice, no matter how much time has passed after
28
Clay v. United States, 537 U.S. 522 (2003).
29
Kapral, 166 F.3d at 567.
30
Id. (“Appellant Michael Kapral did not file a petition for certiorari, but he filed his
§ 2255 motion within one year of the date on which his time to seek certiorari review expired.
We hold that his filing was timely. . . .”).
31
Ante, p. __.
32
See Clay, 537 U.S. 529 (rejecting the argument that “[w]hen a convicted defendant
does not seek certiorari on direct review, § 2255’s limitations period starts to run on the date
the court of appeals issues its mandate.”).
13
No. 05-11169
the conviction, simply because the defendant could always seek certiorari review
of our decision on the subsequent treatment of the notice.”33 I disagree because
that was not Congress’s intent. Section 2255 is part of AEDPA, which was
passed by Congress in 1996. At that time the Supreme Court’s precedent held
that federal courts did not have jurisdiction to entertain an appeal if the notice
of appeal was filed beyond the time prescribed by the rules.34 A notice of appeal
filed beyond any even arguably applicable time limit under the rules, which
would have been the ten-day period and any extensions permitted by the rules,
up to forty days in total, would not be part of the direct appeal process because
jurisdiction over a direct appeal was no longer possible. Congress did not intend
an open-ended habeas process, and 28 U.S.C. § 2255(f)(1) should be construed
in light of Supreme Court precedent in 1996.
The judgment of conviction, the panel majority concludes, became final
January 12, 2004, even though this court did not dismiss Plascencia’s appeal
until June 9, 2004; a certiorari petition could have been filed up to ninety days
after that date, and at least theoretically, Plascencia’s direct appeal could have
proceeded if the Supreme Court had granted a certiorari petition and remanded.
I find it difficult to believe that Congress intended the one-year limitation period
to commence before the final outcome of proceedings regarding a notice of appeal
from a judgment of conviction occurred. I therefore, with great respect for my
colleagues, dissent.
33
Ante, p. __ n.17.
34
See United States v. Robinson, 361 U.S. 220, 229 (1960) (“The courts have uniformly
held that the taking of an appeal within the prescribed time is mandatory and jurisdictional.”).
14