Manuel Sanchez- Castellano v. United States of America

*The Honorab le Avern Cohn, United States District Judge for the
Eastern District of Michigan, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0042P (6th Cir.)
File Name: 04a0042p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
MANUEL SANCHEZ-
CASTELLANO,
Petitioner-Appellant,
v.
UNITED STATES OF AMERICA,
Respondent-Appellee.
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No. 02-5081
Appeal from the United States District Court
for the Western District of Tennessee at Memphis.
Nos. 99-02510; 91-20047—Julia S. Gibbons,
District Judge.
Argued: December 9, 2003
Decided and Filed: February 9, 2004
Before: ROGERS and COOK, Circuit Judges; COHN,
District Judge.*
2 Sanchez-Castellano v. United States No. 02-5081
_________________
COUNSEL
ARGUED: Robert C. Brooks, Memphis, Tennessee, for
Appellant. Timothy R. DiScenza, ASSISTANT UNITED
STATES ATTORNEY, Memphis, Tennessee, for Appellee.
ON BRIEF: Robert C. Brooks, Memphis, Tennessee, for
Appellant. Timothy R. DiScenza, ASSISTANT UNITED
STATES ATTORNEY, Memphis, Tennessee, for Appellee.
ROGERS, J., delivered the opinion of the court, in which
COOK, J., joined. COHN, D. J. (pp. 9-10), delivered a
separate dissenting opinion.
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OPINION
_________________
ROGERS, Circuit Judge. Appellant Manuel Sanchez-
Castellano appeals the denial for untimeliness of his motion
to vacate his sentence under 28 U.S.C. § 2255. 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. He urges us to find
that Rule 4(b)(4) provided an existing avenue for relief after
the ten-day filing deadline had passed, and that therefore the
judgment in his case did not become final until forty days
after it was entered. Because we reject this statutory
interpretation as an unwarranted across-the-board extension

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No. 02-5081 Sanchez-Castellano v. United States 3
1This matter was before Judge Jerome T urner during the guilty plea
and sentencing, but was transferred to Judge Julia Sm ith Gibbons prior to
adjudication of the §2255 motion.
2The ten-day perio d following M ay 13, 199 8, end ed on M ay 23, a
Saturday. The following Monday, M ay 25, 199 8, was a federal holid ay.
See Fed. R. Ap p. Proc. 2 6(a).
of the statute of limitations for § 2255 motions, we affirm the
judgment of the district court.
In February 1991, Sanchez-Castellano was indicted on one
count of conspiracy to possess 1600 kilograms of cocaine
with intent to distribute and one count of possession of 351
kilograms of cocaine with intent to distribute. Sanchez-
Castellano succeeded in evading arrest until January 1995.
He subsequently escaped from custody and eluded law
enforcement officers for another two years. After he was
returned to custody, Sanchez-Castellano and the Government
reached a plea agreement, pursuant to which he pled guilty to
the conspiracy count and to one count of escape. The district
court imposed a sentence of 292 months imprisonment and
five years supervised release and entered the judgment on
May 13, 1998.1 Under Fed. R. App. P. 4(b)(1)(A), Sanchez-
Castellano had until May 26, 1998, to file a notice of appeal
with the district court.2 Sanchez-Castellano did not appeal,
nor did he move for an extension of time to appeal pursuant
to Fed. R. App. P. 4(b)(4).
Sanchez-Castellano is deemed to have filed his § 2255
motion on June 6, 1999, when he presented it to prison
authorities. See Houston v. Lack, 487 U.S. 266, 270 (1988).
His motion raised three grounds for vacating his sentence.
First, he alleged that his attorney promised to file a direct
appeal but failed to do so. Second, he claimed that his
attorney threatened to withdraw if Sanchez-Castellano did not
plead guilty and that the attorney assured him that he would
only be sentenced to ten to twelve years if he took the plea
agreement. Third, Sanchez-Castellano maintained that his
4 Sanchez-Castellano v. United States No. 02-5081
3The district co urt held an evidentiary hearing on the § 2255 motion
to determine whether the statute of limitations period should be tolled by
trial counsel’s alleged disregard of instructions to appeal. On the
possibility that the district court would ultimately determine that the
§ 2255 motion was timely (it did not), the court also permitted testimony
on the other issues.
attorney was unsure as to whether Sanchez-Castellano “was
being sentenced correctly under the guidelines.” Sanchez-
Castellano’s newly appointed counsel supplemented the
§ 2255 motion, adding a claim that Sanchez-Castellano’s
sentence violated Apprendi v. New Jersey, 530 U.S. 466
(2000).
The district court, however, concluded that Sanchez-
Castellano failed to file his § 2255 motion on time. As
Sanchez-Castellano’s sentence did not seek direct appeal of
his sentence, the judgment of conviction became final,
according to the district court, on May 26, 1998. The district
court also noted, however, that Sanchez-Castellano’s motion
“landed in between two possible finality dates created by Fed.
R. App. P. 4(b)”—the ten day period created by Rule 4(b)(1)
and the forty day period created by the addition of an
extension for excusable neglect under Rule 4(b)(4). The
district court resolved this question in favor of the ten days:
“Under a straightforward application of § 2255, defendant’s
original motion is untimely and barred by the statute of
limitations for filing a motion under § 2255.” The district
court also found that there was no basis for an equitable
tolling of the statute of limitations.
The district court further indicated how it would have
decided the merits of Sanchez-Castellano’s claims, had the
§ 2255 motion been filed on time. On the basis of conflicting
testimony,3 the district court found on the preponderance of
the evidence that Sanchez-Castellano did not direct his lawyer
to file an appeal. Also upon consideration of the credibility
of witnesses before it, the district court “found the record
devoid of any proof that [Sanchez-Castellano] was coerced

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No. 02-5081 Sanchez-Castellano v. United States 5
4On this purely legal issue we have found no case law to guide us.
In an unrepo rted decision, the Fourth Circuit held that a § 2255 motion
was untimely even giving de fendant the benefit of the ten-day appeal
period plus the thirty-day excusab le neglect period in F ed. R . App. P .
4(b). United States v. Walker, No. 99-684 7, 1999 U .S.App. LEX IS
22478, at *2 (4th Cir. Aug. 31, 1999). The opinion thus mere ly
acknowledged the possibility of the forty-day argume nt. The parties cite
no other cases on point. The district court cited two cases applying a ten-
day rule where § 2255 would have been late under a forty-day rule as
well. United States v. Noble, No. 97-6354, 1998 U.S. App. LEXIS 18370
(10th Cir. Aug. 10 , 199 8); Un ited States v. Concepcion, No. 98-2372,
1999 U .S. Dist. LEX IS 5125, at *6 (E.D. Pa. Ap r. 19, 1999).
into pleading guilty.” The district court further concluded
that Sanchez-Castellano’s Apprendi claim was without merit
because the sentencing judge had not “determined an amount
of drugs or any other sentencing factor that produced a
sentence beyond the base maximum penalty contemplated by
the offense of conviction”; the sentencing judge moreover had
“not relied on any fact outside the plea agreement to
determine drug quantity at sentencing.”
The district court denied a certificate of appealability. This
court granted a certificate of appealability on the issue of
whether Sanchez-Castellano’s § 2255 motion was timely filed
within the applicable one-year limitations period.
Although reasonable judges might differ, the language of
§ 2255 appears clearly to require that, for statute of
limitations purposes, an unappealed district court judgment of
conviction becomes “final” ten days after the entry of
judgment, at least where the defendant has not actually sought
an extension of appeal time for good cause or excusable
neglect.4
The language of § 2255 provides that, except in
circumstances not present or asserted here, the one-year
statute of limitations for § 2255 motions begins to run on “the
date on which the judgment of conviction becomes final.” 28
U.S.C. § 2255. As a general matter, convictions become
6 Sanchez-Castellano v. United States No. 02-5081
final upon conclusion of direct review. See United States v.
Cottage, 307 F.3d 494, 498 (6th Cir. 2002). When a federal
criminal defendant takes a direct appeal to the court of
appeals, his judgment of conviction becomes final for § 2255
purposes upon the expiration of the 90-day period in which
the defendant could have petitioned for certiorari to the
Supreme Court, even when no certiorari petition has been
filed. Clay v. United States, 537 U.S. 522, 532 (2003). By
parity of reasoning, when a federal criminal defendant does
not appeal to the court of appeals, the judgment becomes final
upon the expiration of the period in which the defendant
could have appealed to the court of appeals, even when no
notice of appeal was filed. In most cases, that period is ten
days, pursuant to Fed. R. App. P. 4(b)(1). However, in those
cases where “excusable neglect or good cause” is shown, the
district court may extend the appeal time an additional thirty
days. Fed. R. App. P. 4(b)(4).
There are three ways in which the possibility of a Rule
4(b)(4) extension could affect a determination of finality
under § 2255. First, the ten-day rule could be uniformly
applied, regardless of whether or not a Rule 4(b)(4) motion
has been made or granted. Second, the ten-day rule could be
applied except in those cases in which an extension is sought
and granted within the forty days, in which case an
unappealed judgment of conviction would be final at the
expiration of the extended time. Third, a forty-day rule could
be uniformly applied, regardless of whether or not a Rule
4(b)(4) motion has been made or granted. It is not necessary
to decide between the first and second interpretations in the
instant case. This is because Sanchez-Castellano did not seek
or obtain an extension. In order to rule for Sanchez-
Castellano, we must accept the third interpretation, and that
is what Sanchez-Castellano urges upon us on this appeal. The
argument however turns the exception into the rule, and is
ultimately unpersuasive.
To adopt the third interpretation would delay the start of the
limitations period until thirty days later than finality actually

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No. 02-5081 Sanchez-Castellano v. United States 7
5W e do not decide the question of whether the jud gment against a
defendant who applie s for, and receives, a Rule 4(b)(4) extension of the
filing deadline, but fails ultimately to seek a direct appeal, becomes final
forty days after entry.
occurs in most cases. This is not consistent with the
congressional intent to set a one-year, as opposed to a
thirteen-month, statute of limitations. Moreover, there are no
equitable considerations militating in favor of the forty-day
interpretation. Under all three possible interpretations the
determination of when the judgment was final is made, for
statute of limitations purposes, retrospectively and long after
the date actually occurred. We must merely determine which
date corresponds best with the statutory language. At least in
the absence of an actual district court determination of good
cause or excusable neglect, that date is ten days after the entry
of judgment.5
Sanchez-Castellano contends that, because he had the
opportunity to seek Rule 4(b)(4) relief, the judgment against
him should have been considered pending during the time that
he could have, but did not, seek relief. He compares this to
the practice of considering a judgment affirmed on appeal as
pending until the time to seek a writ of certiorari in the
Supreme Court has expired. Sanchez-Castellano points out
that a conviction is not final for § 2255 purposes until the
time for seeking certiorari has expired, when the defendant
does not actually seek certiorari.
The time period for seeking certiorari, however, is more
accurately compared with the standard ten day filing period
for a direct appeal, and not the extension for excusable
neglect. The ten-day period for filing an appeal and the
ninety-day period for filing a certiorari petition are both
periods during which the defendant is permitted to file as of
right. The thirty-day extension period, in contrast, is only
granted upon request to the district court, and then only on a
showing that most litigants presumably cannot make—that
8 Sanchez-Castellano v. United States No. 02-5081
6The dissent maintains that this will not be the case b ecause finality
will come for defendants seeking relief at the time the district court rules
on the motion. Such a rule, however, would benefit those defendants who
fail to seek an extension under Rule 4 (b)(4 ) by giving them the full forty
days while shortchanging those defendants who act diligently.
there has been good cause or excusable neglect. While it
makes sense to toll the limitations period so that a defendant
may file a petition that he is legally entitled to file, it does not
make sense to toll it so that he may seek permission from the
district court to file a late notice for exceptional reasons.
Moreover, under Sanchez-Castellano’s construction, all
defendants would be entitled to this extended period of time,
regardless of whether the district court found excusable
neglect. Suppose he filed a motion to extend the filing
deadline under Rule 4(b)(4) on May 30, 1998, seventeen days
after the entry of the judgment. Then, three days later, the
district court denied the motion, finding no evidence of good
cause or excusable neglect. If Sanchez-Castellano is correct,
for purposes of the § 2255 limitations period, the judgment in
his case would become final twenty days after his last avenue
of direct review had closed.6 It is unlikely that Congress
intended such an outcome.
For the foregoing reasons, an unappealed federal criminal
judgment becomes final ten days after it is entered, for
purposes of the § 2255 statute of limitations, at least where
there has been no district court extension of appeal time for
good cause or excusable neglect. The judgment of the district
court is AFFIRMED.

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No. 02-5081 Sanchez-Castellano v. United States 9
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DISSENT
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COHN, District Judge, dissenting. Because I believe that
the statute of limitations should start to run forty days after
the entry of the judgment of conviction, I respectfully dissent.
I am convinced that the better view is to include the thirty-day
excusable neglect period in determining when Sanchez-
Castellano’s conviction became final since he did not file a
notice of appeal. Whether or not a motion for extension of
time would have been be granted is irrelevant in this case.
What is relevant is that an extension of time is available.
Only when the time for seeking an appeal has been exhausted
can the conviction be said to be “final” and the statute of
limitations begin to run. The fact that Sanchez-Castellano did
not file a motion for an extension of time is also irrelevant.
What is also relevant is the fact that an avenue for appeal was
still available to him for forty days after the judgment was
entered. 28 U.S.C. § 2255 simply states that the statute of
limitations begins to run on “the date on which the judgment
of conviction becomes final.” The statute offers no guidance
as to the meaning of “final.” Since the statute is silent, the
choice of a time period is left to the Court. I see no good
reason not to accept Sanchez-Castellano’s view that the forty-
day time period is the appropriate one. No purpose is to be
served by limiting the time period to ten days, except to limit
the number of habeas petitions which are considered on the
merits. Under the circumstances here and in like cases, I
believe that “final” should be interpreted to mean when the
opportunity for further review has completely expired. This
does not occur until forty days after the judgment of
conviction is entered.
Nor do I believe that adopting this approach will, as the
majority suggests, entitle all defendants “to this extended
period of time, regardless of whether the district court found
excusable neglect.” The majority says that if Sanchez-
10 Sanchez-Castellano v. United States No. 02-5081
Castellano had filed a motion to extend time to file an appeal
under Rule 4(b)(4) seventeen days after the entry of judgment
of conviction and the district court denied it three days later,
then “the judgment would become final twenty days after his
last avenue of direct review had closed.” This is not entirely
correct. The judgment would not be final twenty days after
the last avenue of direct review had closed; rather, it would be
final when the last avenue for direct review had closed, i.e.
when the district court denied the motion. At that point, there
is no longer an available avenue for seeking an appeal. In any
event, this issue is not before us. In this case, Sanchez-
Castellano’s avenue for appeal was foreclosed, and
consequently the judgment of conviction became “final,”
when the forty days expired.

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