United States of America v.  DOUGLAS J. DODSON, JR., a/k/a Becky

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 01-6480 
DOUGLAS J. DODSON, JR., a/k/a
Becky,
Defendant-Appellant. 
Appeal from the United States District Court
for the Eastern District of Richmond, at Richmond.
James R. Spencer, District Judge.
(CR-95-73, CA-00-618-3)
Argued: April 2, 2002
Decided: May 22, 2002
Before MOTZ, Circuit Judge, Walter K. STAPLETON,
Senior Circuit Judge of the United States Court of Appeals
for the Third Circuit, sitting by designation, and
W. Craig BROADWATER, United States District Judge for the
Northern District of West Virginia, sitting by designation.
Vacated and remanded by published opinion. Judge Motz wrote the
opinion, in which Senior Judge Stapleton and Judge Broadwater
joined.
COUNSEL
ARGUED: Kendal Aylor Sibley, Student Counsel, UNIVERSITY
OF VIRGINIA SCHOOL OF LAW APPELLATE LITIGATION

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CLINIC, Charlottesville, Virginia, for Appellant. John Thomas
Lynch, Jr., Special Assistant United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Alexandria, Virginia, for
Appellee. ON BRIEF: Neal L. Walters, UNIVERSITY OF VIR-
GINIA SCHOOL OF LAW APPELLATE LITIGATION CLINIC,
Charlottesville, Virginia, for Appellant. Paul J. McNulty, United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Alexandria, Virginia; Nicholas Stephan Altimari, Assistant United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Richmond, Virginia, for Appellee.
OPINION
DIANA GRIBBON MOTZ, Circuit Judge:
The district court dismissed Douglas J. Dodson, Jr.’s initial motion
for relief under 28 U.S.C.A. § 2255 (West Supp. 2001) as untimely.
We vacate and remand for further proceedings.
I.
A jury convicted Dodson of five counts of a multicount indictment
alleging federal drug and firearms crimes, and on March 5, 1996, the
district court imposed sentence.
On count one, conspiracy to distribute heroin and cocaine in viola-
tion of 21 U.S.C.A. § 846 (West 1999), the court sentenced Dodson
to life imprisonment. On each of counts two and four, possession with
intent to distribute a controlled substance in violation of 21 U.S.C.A.
§ 841(a)(1) (West 1999), Dodson received a sentence of 240 months
imprisonment, to run concurrently with the life sentence on count one.
On count seven, possession of a firearm by a convicted felon in viola-
tion of 18 U.S.C.A. § 922(g)(1) (West 2000), the court sentenced
Dodson to 120 months imprisonment, also to run concurrently with
the sentence on count one. Finally, on count five, use of a firearm in
relation to a drug trafficking crime in violation of 18 U.S.C.A.
§ 924(c)(1) (West 2000), the court imposed a sentence of sixty
months, to run consecutively. In total, then, Dodson received a sen-
tence of life imprisonment plus sixty months.
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Dodson filed a timely appeal. On direct appeal, we upheld Dod-
son’s conviction and sentence on count one. See United States v. Bull,
No. 96-4234, 1998 WL 279561 (4th Cir. May 20, 1998). However,
we vacated his conviction and sentence on count five, finding insuffi-
cient evidence to support the conviction. Id. at *3. Although we
affirmed Dodson’s convictions on counts two, four, and seven, we
vacated his sentences on those counts and remanded for resentencing
so that the district court could, if it wished, take into account our
vacatur of the conviction and sentence on count five when reimposing
sentence on counts two, four, and seven. Id. at *4. Our mandate
issued on June 11, 1998.
Pursuant to that mandate, the district court held a resentencing
hearing and on September 21, 1998, reimposed the same sentences on
each of counts two, four, and seven. On direct appeal from this ruling,
we considered and rejected several challenges to Dodson’s sentences
on the three remanded counts. See United States v. Dodson, No. 98-
4740, 1999 WL 781616 (4th Cir. Oct. 1, 1999). We refused to con-
sider challenges to Dodson’s conviction and sentence on count one,
however, reasoning that these challenges were beyond the scope of
our June 11, 1998 mandate and, therefore, not before the district court
at resentencing. Id. at 1. On October 25, 1999, we issued a mandate
affirming the district court’s remand ruling. Dodson did not petition
for a writ of certiorari.
Eleven months later, in September 2000, Dodson filed a motion
under 28 U.S.C.A. § 2255, raising nine claims relating to all counts
(counts one, two, four, and seven) of conviction. Shortly thereafter,
Dodson filed a motion for leave to amend, seeking to add an addi-
tional claim with respect to count one.
II.
The district court dismissed Dodson’s § 2255 motion as untimely.
The court first noted that although prior to enactment of the Antiterro-
rism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132,
110 Stat. 1214 (AEDPA), "a federal prisoner could collaterally attack
his conviction pursuant to a § 2255 motion ‘at any time,’" the
AEDPA requires a prisoner to file such a motion not more than one
year from "‘the date on which the judgment becomes final.’" Dodson
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v. United States, No. 3:95CR73-1, slip op. at 2-3 (E.D. Va. Jan. 29,
2001); cf. 28 U.S.C.A. § 2255. The court then explained that "‘for
purposes of § 2255, the conviction of a federal prisoner whose con-
viction is affirmed . . . and who does not file a petition for certiorari
becomes final on the date that [the] mandate issues in his direct
appeal.’" Id. at 3 (quoting United States v. Torres, 211 F.3d 836, 837
(4th Cir. 2000)).
The district court next determined that our ruling in Dodson’s first
direct appeal rendered final Dodson’s "conviction and life sentence in
count one" and also his "convictions under counts two, four, and
seven." Id. At that time, the court believed Dodson "ceased to be able
to pursue a direct appeal on all of those issues," so "the limitations
clock began to run" on them. Id. "The only remaining issues," on
which the statute did not then begin to run, according to the district
court, "were the sentences pertaining to the remanded counts." Id.
Upon review of Dodson’s § 2255 petition, the court held that "all
issues" raised therein were "disposed of" in the first appeal, and,
therefore, that the motion was "not timely filed." Id.
Dodson appeals, contending that the statute of limitations did not
begin to run on any of the claims raised in his § 2255 motion until
"his resentencing was affirmed by the Fourth Circuit on October 25,
1999." Brief of Appellant at 10. Because Dodson filed his motion in
September 2000, less than one year after that date, he contends that
his § 2255 motion was timely.
Although in the district court the Government argued to the con-
trary, it now agrees with Dodson that the motion was timely. Brief of
Appellee at 8. Accordingly, the Government joins Dodson in asking
us to remand the case to the district court so that the court can con-
sider Dodson’s § 2255 motion on the merits.
III.
The district court correctly recognized that the AEDPA establishes
a one-year limitations period, which governs this case. Dodson was
therefore required to file his § 2255 motion not more than one year
from "the date on which the judgment of conviction becomes final."
28 U.S.C.A. § 2255 ¶ 6(1). The district court also understood that
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under our circuit precedent, if "a federal prisoner does not petition for
certiorari in the Supreme Court," as Dodson did not, "his judgment of
conviction becomes final under § 2255 ¶ 6(1) upon the issuance by a
court of appeals of the mandate contemplated by Rule 41 of the Fed-
eral Rules of Appellate Procedure." United States v. Segers, 271 F.3d
181, 184 (4th Cir. 2001) (citing Torres, 211 F.3d at 836).
The district court faltered, however, in determining the meaning of
"judgment of conviction" for purposes of § 2255. Although Congress
did not expressly define "judgment of conviction" in the AEDPA, the
phrase "judgment of conviction" had a well established meaning in
federal law, of which Congress was surely aware when it drafted the
AEDPA. Courts presume, in interpreting statutes, that "‘[t]he law uses
familiar legal expressions in their familiar legal sense.’" Bradley v.
United States, 410 U.S. 605, 609 (1973) (quoting Henry v. United
States, 251 U.S. 393 (1920)); see also McDermott Int’l, Inc. v.
Wilander, 498 U.S. 337, 342 (1991); Wachovia Bank & Trust Co. v.
C.I.R. (In re Nissen’s Estate), 345 F.2d 230, 235 (4th Cir. 1965)
("Words with a fixed legal or judicially settled meaning must be pre-
sumed to have been used in that sense." (citing United States v. Mer-
riam, 263 U.S. 179, 187 (1923)). The well established meaning of
"judgment of conviction" forecloses the district court’s interpretation
of the statute in two ways, as the Government now forthrightly
acknowledges.
First, by the time of the enactment of the AEDPA in 1996, it was
well recognized that a criminal "judgment" includes both a conviction
and its associated sentence, so that a "judgment of conviction" cannot
be final with respect to a given count until both the conviction and
sentence associated with the count are final. This meaning is both
longstanding and continuous in the law. More than fifty years before
passage of the AEDPA, the Supreme Court explained that "[f]inal
judgment in a criminal case means sentence. The sentence is the judg-
ment." Berman v. United States, 302 U.S. 211, 212 (1937) (citations
omitted). Since then, the Court itself has recognized that it has "often
stated" that a "criminal judgment necessarily includes the sentence
imposed upon the defendant." Teague v. Lane, 489 U.S. 288, 314 n.2
(1989) (plurality opinion). Indeed, almost contemporaneous with the
enactment of the AEDPA, the Court in construing a sentencing provi-
sion in 18 U.S.C.A. § 924(c)(1) flatly stated that "[a] judgment of
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conviction includes both the adjudication of guilt and the sentence."
Deal v. United States, 508 U.S. 129, 132 (1993).
Moreover, only a single "judgment of conviction" arises from a
case, like this one, in which a defendant is convicted at one trial on
multiple counts of an indictment. This follows from longstanding
practice under the Federal Rules of Criminal Procedure. Since 1944,
the Rules have defined "[a] judgment of conviction" as the integrated
document filed by the court at the close of a criminal trial, containing
"the plea, the verdict or findings, the adjudication, and the sentence"
and further have provided that "[t]he judgment must be signed by the
judge and entered by the clerk." See Fed. R. Crim. P. 32(d)(1) (2002)
(emphasis added); cf. Fed. R. Crim. P. 32(b)(1) (adopted 1944,
amended 1994) (stating that "[a] judgment of conviction shall set
forth the plea, the verdict or findings, and the adjudication and sen-
tence" and that "[t]he judgment shall be signed by the judge and
entered by the clerk" (emphasis added)). Pursuant to this rule, the dis-
trict court in Dodson’s case noted the various counts for which he was
indicted, and the adjudication and sentence with respect to each, in a
single "judgment." See Record at 238, United States v. Dodson, No.
CR-95-73 (E.D. Va. Mar. 5, 1996).
The verbatim text of this rule supplied the definition of "judgment
of conviction" in the 1990 edition of Black’s Law Dictionary, see
Black’s Law Dictionary 843 (6th ed. 1990), the version available for
legislative consultation when Congress drafted the AEDPA.1 In keep-
ing with this rule, the Supreme Court and this Court have frequently
referred to multiple convictions and sentences arising from a single
indictment as "the judgment of conviction." See, e.g., United States
v. X-Citement Video, Inc., 513 U.S. 64, 67 (1994) (describing convic-
tions and sentences on three crimes); United States v. Miller, 471 U.S.
130, 131 (1985) (describing convictions and sentences on two
crimes); Goldberg v. United States, 425 U.S. 94, 99, 112 (1976)
1We note that Black’s recently condensed its definition of "judgment
of conviction," making the point even clearer. See Black’s Law Dictio-
nary 847 (7th ed. 1999) (defining "judgment of conviction" as "[t]he
written record of a criminal judgment, consisting of the plea, the verdict
or findings, the adjudication, and the sentence," and citing Fed. R. Crim.
P. 32(d)(1)).
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(describing "multiple" mail fraud convictions and sentences); United
States v. Vinyard, 266 F.3d 320, 324, 328 n.6 (4th Cir. 2001) (describ-
ing convictions and sentences on 26 crimes); United States v. Rich-
ardson, 233 F.3d 223, 225, 230 (4th Cir. 2000) (describing "various
convictions" and sentences); United States v. Custis, 988 F.2d 1355,
1357, 1358 (4th Cir. 1993) (describing convictions and sentences on
two crimes); United States v. Coates, 949 F.2d 104, 105, 106 (4th Cir.
1991) (same). See also United States v. Monsanto, 491 U.S. 600, 602,
605 n.4 (1989) (referring to convictions and sentences under "multi-
count indictment" as "a judgment of conviction" (emphasis added)).
In Dodson’s case, pursuant to this rule, the district court noted the
various counts, and the adjudication and sentence with respect to
each, on a single judgment.
In cases decided before enactment of the Sentencing Guidelines or
use of other modern sentencing procedures, in which courts had to
determine the legality of sentences entered on several counts of con-
viction, courts apparently found it so clear that such sentences were
entered in a single judgment of conviction as to require little explana-
tion. See, e.g., Donegan v. Snook, 6 F.2d 640, 641 (N.D. Ga. 1925)
("[W]hen the judgment is on several counts in one indictment, or on
several indictments consolidated into one case, there is but one record
and one judgment."); see also McHugh v. United States, 230 F.2d
252, 255 (1st Cir. 1956) (ruling that defendant’s two distinct convic-
tions under same indictment constitute a single consolidated judg-
ment); Ross v. Hudspeth, 108 F.2d 628, 628-29 (10th Cir. 1939)
(treating convictions and sentences on one multicount indictment as
a single judgment).
More recently the Supreme Court depended on the definition of
"judgment of conviction" in Rule 32 to reach its holding in Deal, 508
U.S. 129. There a jury convicted the defendant of six counts of using
or carrying a gun in connection with a crime of violence, his first con-
victions for this offense. Id. at 130. At sentencing, the district court
had to apply the following statutory language:
[w]hoever, during and in relation to any crime of violence
. . . uses or carries a firearm, shall, in addition to the punish-
ment provided for such crime of violence . . ., be sentenced
to imprisonment for five years . . . . In the case of his second
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or subsequent conviction under this subsection, such person
shall be sentenced to imprisonment for twenty years . . . .
18 U.S.C.A. § 924(c)(1). The district court imposed a sentence of five
years on the first count, held that the remaining counts were "second
or subsequent conviction[s]," and imposed a sentence of twenty years
on those counts. Deal, 508 U.S. at 130.
On appeal, Deal challenged his sentence, asserting that key terms
in § 924(c) were ambiguous and could be understood to mean that
counts two through six were not "second or subsequent." Specifically,
Deal argued that the term "conviction" could refer either to (1) a sin-
gle finding of guilt; or (2) "the entry of a final judgment." Id. at 131.
If the first definition were adopted, "second or subsequent conviction"
would refer to any "additional finding of guilt rendered at any time,"
in which case, counts two through six would be "second or subse-
quent," as the district court held. Id. Alternatively, if the second defi-
nition were adopted, a conviction would be "second or subsequent"
only if it were part of "a judgment of conviction entered at a later
time," in which case, counts two through six would not be second or
subsequent because "the District Court entered only a single judgment
on all of the counts," and Deal had never before been convicted for
a violation of § 924(c). Id. (emphasis added).
In affirming Deal’s sentence, the Supreme Court clearly relied on
its view that a single "judgment of conviction" could (and in Deal’s
case did) include the sentence and conviction on each of several
counts of an indictment. First, the Court held that the word "convic-
tion" in § 924(c) did not by itself mean "judgment of conviction." It
reasoned that "[a] judgment of conviction includes both the adjudica-
tion of guilt and the sentence," and if this definition were inserted into
§ 924(c) the provision would be rendered "incoherent": § 924(c)
would then direct a court to adjust a defendant’s sentence upward
from five to twenty years only after entering its final judgment —
which judgment would include the sentence the court was supposed
to adjust. Id. at 132. Having disposed of this argument, the Court saw
no need to reach a related argument that the terms "second" and "sub-
sequent" were also ambiguous (assertedly, they could mean either
"next in time" or "next in order or succession"). The Court explained
that any "ambiguity" in these terms
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is worth pursuing if "conviction" means "judgment," since
a judgment entered once-in-time can (as here) include mul-
tiple counts. The point becomes irrelevant, however, when
"conviction" means (as we hold) a finding of guilt. Unlike
a judgment on several counts, findings of guilt on several
counts are necessarily arrived at successively in time.
Id. at 133 n.1 (emphasis added).
The Court’s discussion in Deal confirms our view that when, as
here, convictions and sentences arise from a multicount indictment,
a single judgment of conviction results. Thus, there is a strong pre-
sumption that Congress generally intended that convictions and sen-
tences on all counts become a final judgment of conviction for
purposes of § 2255 ¶ 6(1) at the same time, in this case on October
25, 1999. See Bradley, 410 U.S. at 609 (1973) ("[T]he law uses famil-
iar legal expressions in their familiar legal sense." (quotation marks
and citation omitted)).
We see nothing in the text or structure of the AEDPA to indicate
that Congress intended a different meaning in a case like Dodson’s.
Indeed, a holding that disaggregated "judgments of conviction" for
§ 2255 purposes, so that individual counts or issues became final at
different times, would give prisoners strong incentive to bring parallel
proceedings, wasting judicial resources and generating needlessly
complex issues for litigation. On pain of losing the right to bring a
habeas appeal, a prisoner would be required to bring each collateral
challenge as it became available, even though related counts or issues
were proceeding simultaneously in the trial court or on direct review.
For example, a prisoner whose conviction is upheld, but whose
case was remanded for resentencing, would need to challenge his con-
viction while the district court considered his sentence. Later, after
direct review of the remanded counts concluded, a new period for fil-
ing a § 2255 motion on those counts would begin, and the prisoner
would likely file a new motion raising factually similar claims. If the
prisoner alleged ineffective assistance of counsel or the suppression
of Brady materials — claims that often arise for the first time in col-
lateral proceedings — multiple rounds of habeas review would fre-
quently require multiple filings from prosecutors and defense counsel.
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Reviewing courts would be forced not only to revisit the same set
of (frequently complex) facts, but also to determine whether issues in
new petitions were "successive," or otherwise procedurally barred
because they were not brought at an earlier opportunity. To be sure,
carefully drafted motions would not necessarily be "successive"; a
petitioner could limit his claims so that they concerned only issues
within the scope of a remand. But we hesitate to predict that most pro
se filings would be so carefully drafted, and find it more likely that
courts would be required to comb through § 2255 motions to deter-
mine whether claims were truly barred, with a careful eye on prison-
ers’ due process rights. See In re Taylor, 171 F.3d 185, 188 n.* (4th
Cir. 1999). We avoid these difficulties by applying the established
meaning of "judgment of conviction," and holding that such a judg-
ment may not be disaggregated for purposes of finality under § 2255.
Because Dodson’s case involves a remand, we think it worth not-
ing that finality is not delayed if an appellate court disposes of all
counts in a judgment of conviction but remands for a ministerial pur-
pose that could not result in a valid second appeal. See United States
v. Wilson, 256 F.3d 217 (4th Cir. 2001) (holding statutory period not
tolled by remand for vacatur of a conviction on one count, after all
other counts in judgment of conviction were affirmed); contra United
States v. Colvin, 204 F.3d 1221, 1222-25 (9th Cir. 2000) (holding to
the contrary despite recognition that district court’s conclusion on
remand that it "had no authority under the mandate to rethink the sen-
tence" may "have been correct"). In such cases, when the court of
appeals enters its mandate (or the Supreme Court concludes its review
of a petition of certiorari), there is no reason to delay habeas review;
a defendant has no grounds for further, nonfrivolous direct appeal,
and the judgment of conviction is therefore final as to all counts. See
Wilson, 256 F.3d at 220.2 See also Richardson v. Gramley, 998 F.2d
2The Government argues, and we agree, that Wilson’s holding should
not be stretched to establish a rule that in every case conviction under
each count of an indictment constitutes a separate judgment of convic-
tion. Such a rule would conflict with Deal, and would, as the United
States argued in successfully opposing a grant of certiorari in Wilson, "be
questionable in a case [like the one at hand] in which one or more counts
in a multi-count conviction were remanded for further discretionary pro-
ceedings." Brief for the United States in Opposition at 11, Wilson v.
United States, 122 S. Ct. 823 (2002) (No. 01-6549).
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463, 465 (7th Cir. 1993) ("A judgment is not final if the appellate
court has remanded the case to the lower court for further proceed-
ings, unless the remand is for a purely ‘ministerial’ purpose, involving
no discretion, such as recomputing prejudgment interest according to
a set formula." (emphasis added)).
In this case, of course, the remand was not merely ministerial.
Rather, our remand required the district court to hold a sentencing
hearing and to exercise its discretion in reimposing sentence. Such a
remand clearly may supply a defendant with the basis for a nonfrivo-
lous appeal. In such cases, the one-year statute of limitations in
§ 2255 does not begin to run until there is a final judgment of convic-
tion as to all counts in the judgment of conviction. Each count has the
same date of finality, and, as to each count, conviction and sentence
are final on the same date.
Accordingly, because Dodson did not seek certiorari,3 his judgment
of conviction became final for § 2255 purposes on the date that we
issued our mandate in the resentencing appeal, October 25, 1999.
Since Dodson filed his initial § 2255 petition in September 2000, less
than one year after our mandate issued, his petition is timely and
should have been considered on the merits.
IV.
For these reasons, we vacate the judgment of the district court and
remand for further proceedings consistent with this opinion.
VACATED AND REMANDED
3We note that contrary to the suggestion of the district court, after we
issued our second mandate on October 25, 1999, Dodson could have
petitioned the Supreme Court for certiorari as to every issue — including
his challenges to count one. See Mercer v. Theriot, 377 U.S. 152, 153-54
(1964) (per curiam) (noting that it is "settled" that the Supreme Court
may review issues settled in prior decisions of a court of appeals after
granting certiorari as to a subsequent decision).
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