United States of America v. D'andre Torres, a/k/a Danny Scott, a/k/a D

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 98-7657
D'ANDRE TORRES, a/k/a Danny
Scott, a/k/a D,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Robert D. Potter, Senior District Judge.
(CR-92-153, CA-98-369-3-P)
Argued: September 23, 1999
Decided: May 3, 2000
Before LUTTIG and WILLIAMS, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
_________________________________________________________________
Affirmed by published opinion. Judge Williams wrote the majority
opinion, in which Judge Luttig joined. Senior Judge Hamilton wrote
a dissenting opinion.
_________________________________________________________________
COUNSEL
ARGUED: Aaron Peter Buda, SCHAD, BUDA, COOK, L.L.C., Cin-
cinnati, Ohio, for Appellant. David S. Kris, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. ON
BRIEF: Mark T. Calloway, United States Attorney, Brian L. Whisler,

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Assistant United States Attorney, UNITED STATES DEPART-
MENT OF JUSTICE, Washington, D.C., for Appellee.
_________________________________________________________________
OPINION
WILLIAMS, Circuit Judge:
D'Andre Torres filed a motion for collateral relief under 28
U.S.C.A. § 2255 (West Supp. 1999), asserting that his conviction for
conspiring to possess with intent to distribute cocaine base in viola-
tion of 21 U.S.C.A. § 846 (West 1999) should be overturned because
of several alleged constitutional defects in his trial. The United States
District Court for the Western District of North Carolina denied the
motion on the ground that it was filed outside the one-year limitation
period of § 2255, which gives a federal prisoner1 one year from the
date his conviction becomes final to commence a collateral attack on
the conviction by filing a motion under that section. Torres appeals,
claiming that, for purposes of § 2255, a federal prisoner's judgment
of conviction is not final until the expiration of the ninety-day period
he has to file a petition for certiorari to the Supreme Court -- even
if that prisoner, like Torres, chose not to file a petition for certiorari.
Torres contends that because his conviction did not become final for
purposes of § 2255 until the expiration of ninety days after this
Court's entry of judgment on his direct appeal, his§ 2255 motion was
timely filed. We reject Torres's argument and hold that, for purposes
of § 2255, the conviction of a federal prisoner whose conviction is
affirmed by this Court and who does not file a petition for certiorari
becomes final on the date that this Court's mandate issues in his direct
appeal. Accordingly, we affirm the district court's dismissal of Tor-
res's § 2255 motion as untimely.
_________________________________________________________________
1 For purposes of this opinion, the term "federal prisoner" refers to a
prisoner in custody under the sentence of a federal court. The term "state
prisoner" refers to a prisoner in custody under the sentence of a state
court.
2

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I.
On August 1, 1995, D'Andre Torres was convicted of one count of
conspiring to possess with intent to distribute cocaine base in viola-
tion of 21 U.S.C.A. § 846 (West 1999). He was sentenced to 360
months in jail and five years supervised release. On May 19, 1997,
a panel of this Court affirmed his conviction on direct appeal. See
United States v. Torres, 113 F.3d 1233 (4th Cir. 1997) (unpublished).
Torres did not file a petition for rehearing, and this Court issued its
mandate on June 10, 1997. Torres thereafter did not file a petition for
certiorari with the Supreme Court.
Torres asserts that on August 16, 1998, he filed a motion for collat-
eral relief under 28 U.S.C.A. § 2255 (West Supp. 1999) with the
United States District Court for the Western District of North Caro-
lina by placing that motion in his prison's mail system. In that motion,
Torres claimed that there were several constitutional defects in his
trial, including ineffective assistance of counsel in violation of the
Sixth Amendment, a violation of his Fifth Amendment right to due
process, and a violation of his Sixth Amendment right to a fair trial.
The district court, without requiring a response from the Government,
denied the motion on the ground that it was filed outside the one-year
limitation period of § 2255. The district court found that Torres had
filed his motion on August 24, 1998, and that Torres's judgment of
conviction had become final on June 12, 1997.2 Thus, the district
court concluded that Torres had filed his § 2255 motion after the expi-
ration of the one-year limitation period provided by§ 2255, and it dis-
missed his motion as untimely.3 We now consider Torres's timely
appeal from the district court's decision.
_________________________________________________________________
2 The district court determined that the judgment of conviction became
final on June 12, 1997. Because that date is two days after this Court
issued its mandate, we assume that the district court referred to the date
on which our mandate was entered on the district court's docket.
3 Torres argues that the prison mailbox rule announced in Houston v.
Lack, 487 U.S. 266, 270 (1988), should apply to his § 2255 motion and
that the motion should be treated as if it had been directly filed with the
district court on August 16, 1998, rather than on August 24, the date on
which the district court indicated that the motion was filed. Because,
under our holding today, Torres's § 2255 motion was untimely even if
the mailbox rule applied to the motion, we need not address this argu-
ment.
3

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II.
The issue we are called upon to decide is this: When, under 28
U.S.C.A. § 2255 (West Supp. 1999), does a federal prisoner's judg-
ment of conviction become final if that prisoner decided not to file a
petition for certiorari in the Supreme Court after an unsuccessful
direct appeal to this Court? Torres contends that his judgment of con-
viction did not become final until August 17, 1997, which is exactly
ninety days after this Court, on May 19, 1997, affirmed his conviction
on direct appeal. According to his offered reading of § 2255, his judg-
ment of conviction did not become final, and § 2255's one-year limi-
tation period did not begin running, until the expiration of ninety days
after the entry of judgment during which he could have filed -- but
did not -- a petition for certiorari.4 On this appeal, the Government
agrees with Torres's offered reading of § 2255.
Like all federal prisoners now seeking relief under§ 2255, Torres
brings his case in the wake of Congress's enactment of the Antiterro-
rism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132,
110 Stat. 1214 (AEDPA). This statute provides a one-year limitation
period for the filing of § 2255 motions by federal prisoners. Previ-
ously, there was no time limit in which a federal prisoner could collat-
erally attack his conviction by filing a § 2255 motion.5 The AEDPA
amended § 2255 to read, in relevant part:
_________________________________________________________________
4 Rule 13.1 of the Supreme Court Rules provides that a petition for cer-
tiorari is timely only if it is filed within 90 days of the entry of the judg-
ment of a state court of last resort or the United States Court of Appeals.
We note that the entry of judgment and the issuance of the mandate are
separate events. "A judgment is entered when it is noted on the docket."
Fed. R. App. P. 36. A petition for panel rehearing or rehearing en banc
must be filed within 14 days after the entry of judgment. See Fed. R.
App. P. 40(a)(1); 35(c). The mandate, which contains"a certified copy
of the judgment, a copy of the court's opinion, if any, and any direction
about costs," is issued "7 days after the time to file a petition for rehear-
ing expires, or 7 days after entry of an order denying a timely petition
for panel rehearing, rehearing en banc, or motion for stay of mandate,
whichever is later." Fed. R. App. P. 41 (a) and (b).
5 The former version of § 2255 expressly provided that "[a] motion for
such [collateral] relief may be made at any time." 28 U.S.C.A. § 2255
(West 1994).
4

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A 1-year period of limitation shall apply to a motion
under this section. The limitation period shall run from the
latest of --
(1) the date on which the judgment of conviction
becomes final . . . .
28 U.S.C.A. § 2255 (West Supp. 1999).
Thus, Congress has declared that the one-year limitation period in
which a federal prisoner such as Torres can file a§ 2255 motion
begins to run on the date on which that prisoner's judgment of convic-
tion becomes final.6 Congress did not explicitly state when a judg-
ment of conviction becomes final, and there is a disagreement among
our sister circuits as to when, for purposes of§ 2255, a judgment of
conviction becomes final in the situation where a federal prisoner
decides not to file a petition for certiorari to the Supreme Court. Com-
pare Gendron v. United States, 154 F.3d 672, 674 (7th Cir. 1998)
(holding that, when a federal prisoner does not file a petition for cer-
tiorari, his judgment of conviction becomes final under § 2255 upon
the issuance of the court of appeal's mandate), cert. denied, 119 S. Ct.
1758 (1999), with United States v. Gamble, No. 98-50920, 2000 WL
342227, at *1 (5th Cir. Apr. 18, 2000) (holding that, when a prisoner
_________________________________________________________________
6 The rest of that portion of§ 2255 that marks the start of the limitation
period lists the following dates that are not relevant to the issue before
us:
(2) the date on which the impediment to making a motion cre-
ated by governmental action in violation of the Constitution or
laws of the United States is removed, if the movant was pre-
vented from making a motion by such governmental action;
(3) the date on which the right asserted was initially recog-
nized by the Supreme Court, if that right has been newly recog-
nized by the Supreme Court and made retroactively applicable to
cases on collateral review; or
(4) the date on which the facts supporting the claim or claims
presented could have been discovered through the exercise of
due diligence.
28 U.S.C.A. § 2255 (West Supp. 1999)
5

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does not file a petition for certiorari, his judgment of conviction does
not become final under § 2255 until the time for filing a certiorari
petition expires), United States v. Burch, 202 F.3d 1274, 1279 (10th
Cir. 2000) (same), and Kapral v. United States , 166 F.3d 565, 577 (3d
Cir. 1999) (same). For the reasons that follow, we believe that the
Seventh Circuit holds the better view.
In declaring that § 2255's one-year limitation period begins to run
on the date on which a prisoner's judgment of conviction becomes
final, Congress was presumably aware that a federal defendant's judg-
ment of conviction becomes final for purposes of collateral attack at
the conclusion of direct review. In our system of federal courts, it is
generally accepted that, for a defendant who files a petition for certio-
rari with the Supreme Court, the conclusion of direct review occurs
when the Supreme Court either denies his petition or decides his case
on the merits. After the Supreme Court does either of these two
things, the defendant's judgment of conviction is final because liter-
ally nothing more occurs on direct review.
Congress, then, drafted the text of § 2255 against a backdrop in
which the Supreme Court's denial of a federal prisoner's petition for
certiorari or its resolution of his case on the merits represents the con-
clusion of direct review. Congress almost certainly did not consider
the situation in which a federal defendant, upon the affirmance of his
conviction by a court of appeals, exercises his prerogative not to file
a petition for certiorari. Thus, we think that in addressing the present
case, which involves this very situation, it is important to hew as
closely as possible to the actual text of the statute. Here, we believe
that, as both a logical and textual matter, where a defendant decides
not to pursue relief in the Supreme Court, his conviction becomes
final upon the issuance of the court of appeal's mandate. This must
be the case, we believe, because, in such a circumstance, literally
nothing else thereafter occurs following the issuance of the mandate
by the appellate court.
We find support for our holding by juxtaposing the text of § 2255
with the text of 28 U.S.C.A. § 2244 (West 1994 & Supp. 1999). Just
as the AEDPA amended § 2255 to provide a one-year limitation
period for federal prisoners to file their § 2255 motions, it amended
§ 2244 to provide a one-year limitation period for state prisoners to
6

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file their habeas petitions. In § 2244, Congress specifically stated that
the one-year limitation period will run from the time that a state judg-
ment becomes final "by the conclusion of direct review or the expira-
tion of the time for seeking such review."7 28 U.S.C.A.
§ 2244(d)(1)(A). In using this phrase, Congress offered two dates
from which its one-year limitation period can begin running: (1) at the
conclusion of direct review or (2) at the expiration of time in which
further direct review could have been sought, but was not. Congress,
therefore, expressly provided an alternative starting date for its limita-
tion period in the circumstance where a state defendant fails to seek
further direct review of his conviction. The language Congress used,
"by the conclusion of direct review or the expiration of the time for
seeking such review," expands the period of time before the start of
the limitation period for filing a habeas petition beyond the date that
marks the conclusion of direct review of that judgment. The absence
of this language in § 2255 provides a powerful negative inference that
the start of its one-year period of limitation is not delayed until the
expiration of the period in which a federal defendant could have peti-
tioned for certiorari, but did not.
Our holding finds further support in a comparison of§ 2255 with
28 U.S.C.A. § 2263 (West Supp. 1999), which sets forth a limitation
period for the filing of habeas petitions by state prisoners who are
serving capital sentences in qualifying states. 8 Section 2263(a) states
_________________________________________________________________
7 Before the enactment of the AEDPA, § 2244 simply included no men-
tion of a limitation on the time in which a state prisoner could commence
a collateral attack on his conviction. See 28 U.S.C.A. § 2244 (West
1994). The current version of § 2244 (d)(1) reads, in relevant part, as fol-
lows:
(d)(1) A 1-year period of limitation shall apply to an applica-
tion for a writ of habeas corpus by a person in custody pursuant
to the judgment of a State court. The limitation period shall run
from the latest of --
(A) the date on which the judgment became final by the
conclusion of direct review or the expiration of the time for
seeking such review . . . .
28 U.S.C.A. § 2244(d)(1)(A) (West Supp. 1999).
8 Section 2263 is part of Chapter 154 of Title 28. This chapter sets forth
the procedures that govern petitions filed under 28 U.S.C.A. § 2254
7

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that its 180-day limitation period begins "after final State court affir-
mance of the conviction and sentence on direct review or the expira-
tion of the time for seeking such review." 28 U.S.C.A. § 2263(a). We
find it significant that Congress did not choose, as it did in § 2263,
to use language in § 2255 that affirmatively expands the period of
time before the start of the limitation period for filing a § 2255 motion.9
Torres and the Government attempt to use § 2263 to bolster their
interpretation of § 2255, noting that, in§ 2263, although the limitation
period for filing a habeas petition begins to run before a state capital
prisoner files a petition for certiorari, that limitation period is tolled
from the moment that a certiorari petition is filed. See 28 U.S.C.A.
§ 2263(b)(1). The absence of a similar tolling provision in § 2255,
they assert, means that Congress assumed that no tolling provision
was needed in that section because a judgment of conviction does not
become final until the time for filing a petition for certiorari has
_________________________________________________________________
(West 1994 & Supp. 1999) by state prisoners serving capital sentences
in states that meet certain conditions set forth in 28 U.S.C.A. § 2261
(West Supp. 1999). The relevant portion of 28 U.S.C.A. § 2263 reads as
follows:
(a) Any application under this chapter for habeas corpus relief
under section 2254 must be filed in the appropriate district court
not later than 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.
(b) The time requirements established by subsection (a) shall
be tolled --
(1) from the date that a petition for certiorari is filed in the
Supreme Court until the date of final disposition of the peti-
tion if a State prisoner files the petition to secure review by
the Supreme Court of the affirmance of a capital sentence on
direct review by the court of last resort of the State or other
final State court decision on direct review . . . .
28 U.S.C.A. § 2263 (West Supp. 1999).
9 Although § 2263(a) is referring only to the direct review that occurs
within a state court system, the power of the negative inference here is
not diminished. The crucial point is that, in § 2263(a), Congress used
language that delayed the start of a limitation period until after a period
of time in which further direct review could have been sought, even if
it was not. Congress did not use this same language in § 2255.
8

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expired. This argument fails, not only because of the aforementioned
difference in the language of § 2255 and § 2263(a), but also because
the limitation period of § 2263(a) is tolled under § 2263(b)(1) only if
a petition for certiorari is filed. The absence of a parallel tolling provi-
sion in § 2255 can therefore provide no reliable guidance as to how
that section should be applied to federal prisoners who do not file a
petition for certiorari and therefore fail to extend their period of direct
review.
Because this Court issued its mandate affirming Torres's criminal
conviction on June 10, 1997, and because Torres never filed a petition
for certiorari, his judgment of conviction became final on that date.10
Torres, therefore, had until June 10, 1998, to file his § 2255 motion.
Even if we assume, without deciding, that the prison mailbox rule
applies to his motion and that he gave his motion to prison authorities
on August 16, 1998, as he says he did, Torres filed his motion more
than two months out of time. Therefore, the district court correctly
dismissed Torres's § 2255 motion as untimely.
III.
Four other circuits have addressed the issue presented by this case.
Our holding is in accord with the Seventh Circuit's resolution of the
issue: "[F]ederal prisoners who decide not to seek certiorari with the
Supreme Court will have the period of limitations[in § 2255] begin
to run on the date this court issues the mandate in their direct criminal
appeal." Gendron v. United States, 154 F.3d 672, 674 (7th Cir. 1998),
cert. denied, 119 S. Ct. 1758 (1999). In contrast, the Third Circuit has
held that, under § 2255, the judgment of conviction for a defendant
who fails to file a petition for certiorari does not become final until
the expiration of the period in which he could have filed a petition for
certiorari. See Kapral v. United States, 166 F.3d 565, 577 (3d Cir.
1999). Recently, the Fifth and Tenth Circuits have joined the Third
Circuit in this holding, adopting almost entirely the reasoning of the
Kapral opinion. See United States v. Gamble , 2000 WL 342227, No.
_________________________________________________________________
10 The district court's use of June 12 as the date on which the judgment
of conviction became final is insignificant because, even if this Court's
mandate had issued on that day, Torres still would have been at least two
months late in filing his § 2255 motion.
9

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98-50920, at *1 (5th Cir. Apr. 18, 2000); United States v. Burch, 202
F.3d 1274, 1276-79 (10th Cir. 2000).11 We find it significant that the
Kapral court reached its result primarily by emphasizing policy con-
siderations instead of focusing on the language of§ 2255. For exam-
ple, in supporting its holding that, for purposes of§ 2255, the one-
year limitation period for a federal prisoner who fails to file a petition
for certiorari runs from the last date on which a petition could have
been filed, the Kapral court thought it would be wise, as a matter of
policy regarding the administration of direct and collateral proceed-
ings, to use "the concept of finality under aTeague analysis."12Id. at
572. First, we observe that there is no necessary reason to conclude
that Congress intended to import the judicially created concept of
finality for purposes of a Teague retroactivity analysis into the context
of the limitation periods of either § 2244 or§ 2255. Second, even if
by using the words "by the conclusion of direct review or the expira-
tion of the time for seeking such review" in§ 2244(d)(1)(A) Congress
invoked a Teague-like concept of finality, Congress's failure to do so
_________________________________________________________________
11 Both the Ninth and the Eleventh Circuits have noted the existence of
the circuit split, but they have not had the chance to rule on the issue we
now address. See United States v. Colvin, 204 F.3d 1221, 1223-24 (9th
Cir. 2000); Adams v. United States, 173 F.3d 1339, 1342-43 (11th Cir.
1999).
12 Under the nonretroactivity rule of Teague v. Lane, 489 U.S. 288
(1989), a state prisoner collaterally attacking his conviction does not
receive the benefit of a "new constitutional rule[ ] of criminal procedure"
that is announced after his conviction became final unless that rule falls
within one of two narrow exceptions. See id. at 310; Caspari v. Bohlen,
510 U.S. 383, 396 (1994). In applying Teague to state prisoners who did
not file certiorari petitions, the Supreme Court has said that, for the pur-
pose of retroactivity analysis, the prisoners' convictions were final on the
date on which the time for filing a petition for certiorari expired. See,
e.g., Lambrix v. Singletary, 520 U.S. 518, 527 (1997); Caspari, 510 U.S.
at 390-91. While the Supreme Court has not directly held that Teague's
nonretroactivity rule applies to actions for collateral relief under § 2255,
we have. See United States v. Martinez, 139 F.3d 412, 415-16 (4th Cir.
1998), cert. denied, 119 S. Ct. 807 (1999) (deciding to apply Teague's
nonretroactivity rule to actions under § 2255, but not addressing the spe-
cific question of when a federal defendant's conviction becomes final,
for purposes of Teague retroactivity analysis, in the situation where no
petition for certiorari is filed).
10

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in § 2255 raises a negative inference that should not be ignored. Fur-
thermore, the Kapral court's concern that starting to run § 2255's lim-
itation period when the mandate is issued would somehow force a
federal prisoner to file his petition for certiorari and § 2255 motion
simultaneously, see id., ignores that the relevant factual situation is
one in which a prisoner did not file a petition for certiorari. In this sit-
uation, we simply cannot see the logic in the assertion that starting to
run the one-year limitation period before the expiration of the time in
which the prisoner could have petitioned for certiorari harms a pris-
oner by forcing him to prepare a petition for certiorari and a § 2255
motion simultaneously. A prisoner who chooses not to file a petition
for certiorari simply never faces that dilemma.
IV.
For the foregoing reasons, we hold that Torres filed his § 2255
motion after the one-year limitation period expired, and we affirm the
decision of the district court to dismiss the motion as untimely.
AFFIRMED
HAMILTON, Senior Circuit Judge, dissenting:
Prior to the enactment of the Antiterrorism and Effective Death
Penalty Act (AEDPA) of 1996, Pub. L. No. 104-132, 110 Stat. 1214,
a federal prisoner could file a § 2255 motion"at any time." 28 U.S.C.
§ 2255 (former version). The current version of § 2255 imposes a
one-year period of limitation and provides that this period of limita-
tion shall run from the latest of four specified dates. One of those
dates is "the date on which the judgment of conviction becomes
final." 28 U.S.C. § 2255(1). This is the language at issue in this case,
and the rub in this case, as recognized by the majority, see ante at 5,
is that § 2255 does not define when a judgment of conviction
becomes "final" for purposes of starting the period of limitation.
Four circuits have squarely addressed the issue of when a convic-
tion becomes "final" for purposes of § 2255. The Seventh Circuit has
held that, at least in a case in which the federal prisoner does not seek
further review of his conviction beyond the court of appeals, a judg-
11

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ment of conviction becomes final when the highest court to consider
the case issues its mandate. See Gendron v. United States, 154 F.2d
672, 674 (7th Cir. 1998), cert. denied, 119 S. Ct. 1758 (1999). The
Seventh Circuit's holding in Gendron is tied to the textual difference
between § 2244(d)(1)(A), which is applicable to collateral review of
state court convictions, and § 2255, which is applicable to collateral
review of federal court convictions. Just as § 2255 provides a one-
year period of limitation, so too does § 2244(d)(1), and § 2244(d)(1)
provides that this period of limitation shall run from the latest of four
specified dates. One of those dates is "the date on which the judgment
became final by the conclusion of direct review or the expiration of
time for seeking such review." Id. § 2244(d)(1)(A). In Gendron, the
Seventh Circuit reasoned that "[w]here Congress includes particular
language in one section of an act but omits it in another section of the
same act, it is presumed that Congress intended to exclude the lan-
guage, and the language will not be implied where it has been
excluded." 154 F.3d at 674.1 Noting that Congress included the phrase
"by the conclusion of direct review or the expiration of the time for
seeking such review" in § 2244(d)(1)(A) but omitted the phrase from
§ 2255(1), the Gendron court concluded that the date on which a
judgment of conviction becomes final must mean something different
under § 2255(1) than it does under § 2244(d)(1)(A). See Gendron,
154 F.3d at 674. Based on this conclusion, the Gendron court held
that under § 2255(1) a judgment of conviction becomes final when
the court of appeals issues its mandate. See Gendron, 154 F.3d at 674.
In contrast to Gendron, the Third, Fifth, and Tenth Circuits take the
view that a judgment of conviction becomes final under § 2255(1)
when a federal prisoner's options for further direct review are fore-
closed, rather than when the highest court to consider the case issues
its judgment. Thus, those courts hold that the judgment of conviction
becomes final on the later of (1) the date on which the Supreme Court
affirms the conviction and sentence on the merits or denies the federal
prisoner's timely filed petition for writ of certiorari, or (2) the date on
which the federal prisoner's time for filing a timely petition for writ
of certiorari expires. See United States v. Gamble, No. 98-50920,
2000 WL 342227, at *1 (5th Cir. April 18, 2000); United States v.
_________________________________________________________________
1 This principle is commonly referred to as the Russello presumption.
See Russello v. United States, 464 U.S. 16, 23 (1983).
12

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Burch, 202 F.3d 1274, 1279 (10th Cir. 2000); Kapral v. United States,
166 F.3d 565, 577 (3d Cir. 1999).
In Kapral, the Third Circuit rejected the reasoning of Gendron,
concluding that long-standing principles of finality in the collateral
review context outweigh any inference that could be drawn from the
textual difference between § 2241(d)(1)(A) and§ 2255(1). See
Kapral, 166 F.3d at 570-77. The Third Circuit also criticized the Gen-
dron court for not taking 28 U.S.C. § 2263 into account when trying
to divine what Congress intended in § 2255(1). 2 See Kapral, 166 F.3d
at 576-77. Section 2263 deals with certain habeas petitions for collat-
eral review of state court convictions involving the death penalty.
Section 2263(a) provides that a federal 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." The Third Circuit reasoned that
Congress's 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--run from the
conclusion of Supreme Court review.
_________________________________________________________________
2 In relevant part, § 2263 provides:
(a) Any application under this chapter for habeas corpus relief
under section 2254 must be filed in the appropriate district court
not later than 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.
(b) The time requirements established by subsection (a) shall
be tolled--
(1) from the date that a petition for certiorari is filed in the
Supreme Court until the date of final disposition of the peti-
tion if a State prisoner files the petition to secure review by
the Supreme Court of the affirmance of a capital sentence on
direct review by the court of last resort of the State or other
final State court decision on direct review . . . .
13

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Kapral, 166 F.3d at 576. The Third Circuit also noted that both
§ 2244(d)(1)(A) and § 2255(1) explicitly tie the applicable period of
limitation to the "finality" of a conviction, rather than an "affirmance"
of that conviction, as does § 2263. See Kapral, 166 F.3d at 576. The
Third Circuit also observed that § 2263 provides that the period of
limitation is "tolled" by the filing of a petition for writ of certiorari,
see 28 U.S.C. § 2263(b)(1). See Kapral , 166 F.3d at 576. Tolling is
necessary under that section because the period of limitation starts to
run before the time period for Supreme Court certiorari review
begins. See id. 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 cer-
tiorari review expired. See Kapral, 166 F.3d at 577.
The Tenth Circuit's decision in Burch follows the reasoning of the
Third Circuit's decision in Kapral. Of note, the court in Burch heavily
criticized the Gendron court's invocation of the Russello presump-
tion. The Burch court first noted that the presumption only is applica-
ble in cases where the statute at issue is carefully drafted, which the
AEDPA is not. See 202 F.3d at 1277. The court also noted that, "[h]ad
the Gendron court truly applied the Russello principle and taken it to
its logical conclusion, it would have held that a judgment of convic-
tion is final for purposes of § 2255 when the trial court enters the
judgment of conviction on the docket." Burch , 202 F.3d at 1278.3
From the above discussion, it seems clear that, when a federal pris-
oner appeals his conviction to the court of appeals, the phrase "the
date on which the judgment of conviction becomes final" contained
in § 2255(1) is ambiguous, as it is susceptible of two reasonable inter-
pretations. On the one hand, the phrase may mean the date on which
the last process of direct appeal occurs. See Kapral, 166 F.3d at 577
(Alito, J., concurring). On the other hand, the phrase "the date on
which the judgment of conviction becomes final" reasonably may be
_________________________________________________________________
3 The Fifth Circuit's decision in Gamble follows the reasoning of an
earlier Fifth Circuit decision, United States v. Thomas, 203 F.3d 350, 354
(5th Cir. 2000), wherein the court found the reasoning of Kapral persua-
sive. See Gamble, 2000 WL 342227, at *1.
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interpreted to mean the date on which the conviction is no longer sub-
ject to reversal by means of the process of direct appeal. See id.
These two reasonable interpretations produce the same results
except when a federal prisoner decides not to petition the Supreme
Court for a writ of certiorari. As Judge Alito explained in Kapral,
[t]hese two reasonable interpretations produce the same
results in those cases in which the defendant exhausts the
process of direct review, i.e., appeals to the court of appeals
and then petitions for a writ of certiorari. In those cases, the
last step in the process of direct appeal occurs at the same
time when the defendant's conviction becomes immune
from reversal on direct appeal, i.e., when the Supreme Court
denies certiorari or, if certiorari is granted, when the
Supreme Court hands down its decision on the merits. These
two interpretations, however, produce different results in
those cases, such as this case and Gendron, in which the
defendant does not exhaust the direct-review process. In
cases like this one and Gendron, the last step in the process
of direct appeal occurs when the court of appeals' judgment
is entered, but the judgment of conviction does not become
immune from reversal through the process of direct appeal
until the time for petitioning for certiorari expired--
generally 90 days after the entry of the court of appeals'
judgment. See Supreme Court Rule 13.1. Thus, in those
cases in which a defendant appeals to the court of appeals
but does not seek certiorari, the first interpretation will gen-
erally give the defendant one year from the entry of judg-
ment to file a § 2255 motion, whereas the second
interpretation will generally give the defendant 15 months
from the entry of the court of appeals' judgment to file that
motion.
Kapral, 166 F.3d at 577-78 (Alito, J., concurring).
Whenever we are confronted with a situation in which we must
accept one reasonable interpretation of a statute and reject another,
the decision is exceedingly difficult. Such is the case here. Com-
pounding the difficulty of the decision in this case is the absence of
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legislative history surrounding the enactment of§ 2244(d)(1)(A) and
§ 2255(1). However, I am more persuaded by the Kapral, Burch, and
Gamble courts' analyses of the relevant secondary tools of statutory
interpretation than I am by the reasoning of the majority and Gen-
dron. Accordingly, I would hold that, for purposes of § 2255(1), if a
federal prisoner does not file a petition for writ of certiorari with the
United States Supreme Court after his direct appeal, the one-year
period of limitation begins to run when the time for filing a petition
for writ of certiorari expires.
In its opinion, the majority relies on two main points to support its
interpretation of § 2255(1). First, the majority relies on the fact that
§ 2255(1) refers to "the date on which the judgment of conviction
becomes final," whereas § 2244(d)(1)(A) refers to "the date on which
the judgment became final by the conclusion of direct review or the
expiration of the time for seeking such review." See ante at 6-7.
According to the majority, the absence of the phrase"the expiration
of the time for seeking such review" in § 2255(1) "provides a power-
ful negative inference that the start of its one-year period of limitation
is not delayed until the expiration of the period in which a federal
defendant could have petitioned for certiorari, but did not." Ante at 7.
Unlike the majority, I fail to see the "powerful negative inference."
To begin with, the statutory text of § 2244(d)(1)(A) and § 2255(1)
strongly suggests that the difference in language did not result from
a careful drafting choice.4 Indeed, a careful draftsman would have
realized that, just as it was necessary in § 2244(d)(1)(A) to explain
what was meant by the date on which the judgment of conviction
became final, so too was it necessary to provide such an explanation
in § 2255(1). In addition, the legislative history of § 2244(d)(1)(A)
and § 2255(1) suggests that the textual difference between
§ 2241(d)(1) and § 2255(1) is "the product of the vagaries of the leg-
islative process." Kapral, 166 F.3d at 580-81 (Alito, J., concurring)
(reviewing the origins of § 2244(d)(1)(A) and§ 2255(1)). Finally, it
makes no sense to conclude that Congress intended to treat state and
federal prisoners differently. See Burch, 202 F.3d at 1278; Kapral,
166 F.3d at 575.
_________________________________________________________________
4 For this reason, unlike the Seventh Circuit in Gendron, the majority
in this case wisely does not rely on the Russello presumption.
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The second point relied upon by the majority to support its inter-
pretation of § 2255(1) is premised on § 2263, which sets forth a
period of limitation for the filing of habeas petitions by state prisoners
who are serving capital sentences in qualifying states. According to
the majority, it is "significant that Congress did not choose, as it did
in § 2263, to use language in § 2255 that affirmatively expands the
period of time before the start of the limitation period for filing a
§ 2255 motion." Ante at 8. However the majority's analysis ignores
the import of the phrase "final State court affirmance of the convic-
tion and sentence on direct review." As the court in Kapral noted,
Congress's 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 periods of limitation language in
§§ 2244(d)(1) and 2255--which lack an analogous modifier
--run from the conclusion of Supreme Court review. In
§§ 2244(d)(1) and 2255, Congress spoke in terms of "final-
ity," not in terms of "affirmance."
Kapral, 166 F.3d at 576. Moreover, 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.
See Kapral, 166 F.3d at 577.
Finally, in deciding which reasonable interpretation should control,
I find the Supreme Court's definition of "final judgment" in the con-
text of the doctrine of retroactivity instructive. In Griffith v. Kentucky,
479 U.S. 314, 320-21 (1987), the Court summarized the history of its
retroactivity analysis. In that context, the Court stated that a convic-
tion that is "final" means "a case in which 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." Id. at 321 n.6. I simply cannot see how Congress' omission
of the phrase "by the conclusion of direct review or the expiration of
time for seeking such review" in § 2255(1) means that Congress "in-
tended to disrupt settled precedent by requiring that a criminal defen-
dant pursue collateral relief before the time for seeking direct review
expires and during a time period in which he or she may rightfully be
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considering the wisdom of further direct review." Thomas, 203 F.3d
at 354. As the court noted in Thomas, "such a rule would be inconsis-
tent with the well-settled principles of finality in the collateral review
context." Id.; see also Kapral, 166 F.3d at 570 ("[C]ollateral attack is
generally inappropriate if the possibility of further review remains
open.").
In summary, I would hold that, for purposes of § 2255(1), if a fed-
eral prisoner does not file a petition for writ of certiorari with the
United States Supreme Court after his direct appeal, the one-year
period of limitation begins to run when the time for filing a petition
for writ of certiorari expires. In this case, the one-year period of limi-
tation began to run on August 17, 1997, ninety days after this court
affirmed Torres' conviction and sentence. See Sup. Ct. R. 13.1. Torres
alleges that he filed his § 2255 motion on August 16, 1998, one day
before the period of limitation had run, by placing that motion in the
prison's mail system. I would, therefore, vacate the district court's
order and remand the case to the district court to determine if Houston
v. Lack, 487 U.S. 266, 276 (1988) (holding that a prisoner's notice of
appeal is considered filed when it is delivered to prison authorities for
mailing), applies to § 2255 motions, and, if so, whether Torres satis-
fied its requirements.
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