159 F.3d 345 (8th Cir. 1998), 98-2358, Smith v. Bowersox

Docket Nº:98-2358.
Citation:159 F.3d 345
Party Name:Keith A. SMITH, Appellee, v. Michael BOWERSOX, Appellant.
Case Date:October 20, 1998
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

Page 345

159 F.3d 345 (8th Cir. 1998)

Keith A. SMITH, Appellee,


Michael BOWERSOX, Appellant.

No. 98-2358.

United States Court of Appeals, Eighth Circuit

October 20, 1998

Submitted Sept. 22, 1998.

Page 346

Frank A. Jung, Asst. Atty. Gen., Jefferson City, MO, argued, for Appellant.

William C. Odle, Kansas City, MO, argued, for Appellee.


BRIGHT, Circuit Judge.

Appellant, Michael S. Bowersox, is the warden of the Missouri State Penitentiary. He takes this interlocutory appeal from a district court 1 scheduling order, an order which determined the limitations period under 28 U.S.C. § 2244(d)(1)(A) and gave the petitioner, inmate Keith A. Smith, until November 2, 1998--one year after the Supreme Court rejected his petition for writ of certiorari--to file an application for writ of habeas corpus. Because the statute of limitations was properly interpreted, we now affirm.


The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) changed the federal law of habeas corpus. Among other alterations, the AEDPA imposed a one-year statute of limitations on petitions for writ of habeas corpus filed under 28 U.S.C. § 2254. This limitations period, found at 28 U.S.C. § 2244(d)(1), states in pertinent part that:

(d)(1) A 1-year period of limitation shall apply to an application 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;....

Page 347

Although both parties to this appeal recognize the applicability of the statute, they differ in their interpretations of how the time bar should be calculated. Appellant argues that the phrase "became final by the conclusion of direct review" refers to the conclusion of state court review only and excludes the prospect of certiorari. Appellee, in contrast, maintains that the opportunity for Supreme Court review falls within the meaning of the phrase.


Petitioner Smith is incarcerated by the State of Missouri, under sentence of death, for a 1991 double murder. The Supreme Court of Missouri affirmed his conviction, sentence, and the denial of any post-conviction relief, State...

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