Moore v. U.S., No. 98-1153

• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)
• Writing for the Court: HANSEN
• Citation: 173 F.3d 1131
• Docket Number: No. 98-1153
• Decision Date: 16 April 1999
• Parties: Eric A. MOORE, Appellant, v. UNITED STATES of America, Appellee.

Page 1131

173 F.3d 1131 Eric A. MOORE, Appellant,
v.
UNITED STATES of America, Appellee. No. 98-1153. United States Court of Appeals, Eighth Circuit. Submitted Nov. 16, 1998.
Filed April 16, 1999.

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Ronald L. Jurgeson, Lee's Summit, Missouri, argued (Gerald W. Furnell, on the brief), for Appellant.

Lajuana M. Counts, Assistant U.S. Attorney, Kansas City, Missouri, argued (Stephen L. Hill, Jr., on the brief), for Appellee.

Before: McMILLIAN, FLOYD R. GIBSON, and HANSEN, Circuit Judges.

HANSEN, Circuit Judge.

Eric A. Moore appeals the district court's dismissal of his 28 U.S.C.A. § 2255 (West Supp.1998) motion as untimely. Based on our recent en banc decision in Nichols v. Bowersox, 172 F.3d 1068 (8th Cir.1999) (en banc), we reverse.

I.

Moore was convicted in 1990 of using a firearm in connection with a drug trafficking offense, in violation of 18 U.S.C. § 924(c), and sentenced to 60 months' imprisonment, to be served consecutively to a 360-month sentence imposed for the underlying drug trafficking convictions. He filed a pro se § 2255 motion seeking to dismiss the § 924(c) conviction in light of Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995). The evidence is conflicting as to when Moore placed his motion to the district court in the prison mail system, but he obtained a

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receipt from the United States Postal Service dated April 24, 1997. Thus, Moore's motion was placed in the prison mail system at the latest on April 24, 1997. The district court found the motion untimely under § 2255's one-year time limit because the district court clerk's office did not receive Moore's motion until April 25, 1997, after the time limit had expired. See Moore v. United States, No. 97-0801-CV-W-8-P, at 4 (W.D.Mo. Oct. 20, 1997). Moore appeals, arguing that the prison mailbox rule should apply to his § 2255 motion. Under that rule, Moore's motion would be deemed filed when he placed it in the prison mail system. The government concedes the merits of the Bailey issue. (See Appellee's Br. at 9.) If Moore's § 2255 motion was timely filed, Moore is entitled to relief and will not have to serve the additional consecutive five years of confinement for the concededly invalid § 924(c) conviction.

II.

We review de novo a district court's dismissal of a § 2255 motion. See Swedzinski v. United States, 160 F.3d 498, 500 (8th Cir.1998). Section 2255 contains a one-year time limit for filing motions under that section. ¹ This provision became effective April 24, 1996, with the enactment of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L. 104-132, Title I, § 105, 110 Stat. 1220. Federal defendants whose convictions became final before the enactment of the AEDPA have been given a one-year grace period from its effective date to file their § 2255 motions. See Paige v. United States, 171 F.3d 559, 560-61 (8th Cir.1999). Though the circuits are in agreement that the bright line rule of one year is an appropriate grace period for filing either a § 2254 petition or a § 2255 motion, they are split regarding the specific date that the one-year grace period ends--either April 23 or April 24, 1997. See Nichols v. Bowersox, 172 F.3d at 1073-74, (collecting cases).

The two circuits that have chosen April 24, 1997, as the final date of the AEDPA grace period are the only two that have specifically addressed how to calculate the ending date of the time period. See Flanagan v. Johnson, 154 F.3d 196, 200-02 (5th Cir.1998) (§ 2254 case); Mickens v. United States, 148 F.3d 145, 148 (2d Cir.1998) (§ 2255 case). Both circuits relied on Fed.R.Civ.P. 6(a), ² which provides that "[i]n computing any period of time prescribed or allowed ... by any applicable statute, the day of the act, event, or default from which the designated period of time begins to run shall not be included." The Second and Fifth Circuits concluded that the effective date of the AEDPA, April 24, 1996, is thus not included in calculating the one-year grace period, which therefore ends on April 24, 1997, rather than April 23, 1997. See Flanagan, 154 F.3d at 202; Mickens, 148 F.3d at 148.

As noted by the court in Flanagan, "Rule 6(a) is a general statutory rule." 154 F.3d at 201. The court found that one of the purposes for extending the one-year grace period to prisoners whose convictions

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were final before the enactment of the AEDPA was to give effect to the parties' reliance interests. Because the Fifth Circuit had consistently applied Rule 6(a) to compute other federal statutory time limits, applying Rule 6(a) in the § 2254 context furthered those interests. See id. The Second Circuit applied Rule 6(a) with little discussion. See Mickens, 148 F.3d at 148.

We have not used Rule 6(a) to calculate statutory time limits as regularly as has the Fifth Circuit. See, e.g., Mattson v. U.S. West Communications, Inc., 967 F.2d 259, 261-62 (8th Cir.1992) (refusing to apply Rule 6(a) to the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. § 1692-1692o (1994)). We declined to apply Rule 6(a) in Mattson because the statute of limitations in the FDCPA was jurisdictional, and Fed.R.Civ.P. 82 prevents the use of the Rules of Civil Procedure to extend the jurisdiction of district courts. See id. at 260, 262. Thus, before determining whether we should...