Robinson v. U.S.

• Decision Date: 29 July 2005
• Docket Number: No. 04-1223.,04-1223.
• Parties: Charles R. ROBINSON, IV, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

416 F.3d 645

Charles R. ROBINSON, IV, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

No. 04-1223.

United States Court of Appeals, Seventh Circuit.

Argued April 7, 2005.

Decided July 29, 2005.

Thomas L. Shriner, Jr., Brian E. Cothroll (argued), Foley & Lardner, Milwaukee, WI, for Petitioner-Appellant.

Gregory M. Gilmore (argued), Office of the United States Attorney, Springfield, IL, for Respondent-Appellee.

Before MANION, ROVNER, and SYKES, Circuit Judges.

SYKES, Circuit Judge.

This appeal presents the question of when a federal conviction "becomes final" for purposes of the one-year limitations period for pursuing collateral relief under 28 U.S.C. § 2255, ¶ 6(1). The government argues that finality attaches to a judgment of conviction when the Supreme Court affirms on the merits on direct review or denies a petition for a writ of certiorari, or the time for filing a certiorari petition expires. Petitioner Charles Robinson argues that a judgment of conviction does not become final until the Supreme Court denies a petition for rehearing a denial of certiorari, or the time for filing such a petition expires.

The government is correct. Pursuant to Clay v. United States, 537 U.S. 522, 527, 123 S.Ct. 1072, 155 L.Ed.2d 88 (2003), Horton v. United States, 244 F.3d 546, 551 (7th Cir.2001), and United States v. Marcello, 212 F.3d 1005, 1008 (7th Cir.2000), finality attaches for purposes of the one-year limitations period of § 2255, ¶ 6(1) when the Supreme Court affirms on the merits on direct review or denies certiorari, or the time for filing a certiorari petition expires, not the later date when the Court denies a petition for rehearing a denial of certiorari or the time for filing such a petition expires. Because Charles Robinson filed his § 2255 motion more than one year after the Supreme Court denied his petition for certiorari, the district court properly dismissed it as untimely.

I. Background

This is the fourth time Robinson's case has come before this court. Robinson was convicted in December 1997 of three felonies: possession of cocaine with intent to distribute, possession of cocaine base with intent to distribute, and simple possession of cocaine base. Given Robinson's extensive criminal history, the imposition of a number of enhancements under the Sentencing Guidelines, and the district court's finding that Robinson was responsible for more than 500 grams of crack, he was sentenced to a term of 100 years in prison. This court affirmed his convictions on direct appeal but remanded for resentencing, having concluded that the evidence of drug quantity was unreliable. United States v. Robinson, 164 F.3d 1068 (7th Cir.1999). On remand the district court held a new sentencing hearing at which several witnesses testified to the drug quantity issue. Concluding once again that Robinson was responsible for more than 500 grams of crack, the judge reimposed the 100-year sentence. United States v. Robinson, 76 F.Supp.2d 941 (C.D.Ill.1999). Finding no clear error in the district court's reliance on the new evidence, this court affirmed in an unpublished order. United States v. Robinson, No. 99-4071, 215 F.3d 1331, 2000 WL 689182 (7th Cir. May 23, 2000).

The Supreme Court later granted Robinson's petition for certiorari and summarily reversed and remanded for reconsideration in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Robinson v. United States, 531 U.S. 1005, 121 S.Ct. 559, 148 L.Ed.2d 479 (2000). On remand we held that Robinson's argument failed the fourth prong of plain-error review and affirmed the sentence. United States v. Robinson, 250 F.3d 527 (7th Cir.2001). Robinson again petitioned for a writ of certiorari, which the Supreme Court denied on October 1, 2001. He petitioned for rehearing, but that, too, was denied on March 18, 2002.

On March 14, 2003, Robinson filed for postconviction relief pursuant to § 2255, asserting ineffective assistance of counsel and Apprendi arguments. The district court concluded the motion was not timely filed, relying on this court's decision in Marcello, 212 F.3d at 1008, which held that a conviction becomes final for purposes of the one-year limitations period in § 2255 when the defendant's petition for certiorari is denied. Because Robinson filed his § 2255 motion more than one year after the Supreme Court denied his petition for certiorari, the district court denied it as untimely. This court issued a certificate of appealability limited to the ineffective assistance of counsel issue and ordered counsel appointed. The order also requested briefing on the limitations issue that the district court found dispositive.

II. Discussion

Under the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 ("AEDPA"), a motion pursuant to § 2255 must be filed within one year of four possible dates, one of which is relevant to this case: the "date on which the judgment of conviction becomes final." 28 U.S.C. § 2255, ¶ 6(1). The statute does not define finality. However, the Supreme Court has held that in the context of postconviction relief, finality attaches when the Supreme Court "affirms a conviction on the merits on direct review or denies a petition for a writ of certiorari, or when the time for filing a certiorari petition expires." Clay, 537 U.S. at 527, 123 S.Ct. 1072 (citing Caspari v. Bohlen, 510 U.S. 383, 390, 114 S.Ct. 948, 127 L.Ed.2d 236 (1994); Griffith v. Kentucky, 479 U.S. 314, 321 n. 6, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987); Barefoot v. Estelle, 463 U.S. 880, 887, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983); United States v. Johnson, 457 U.S. 537, 542 n. 8, 102 S.Ct. 2579, 73 L.Ed.2d 202 (1982); and Linkletter v. Walker, 381 U.S. 618, 622 n. 5, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965)).

Robinson contends that an order denying certiorari is a "qualified" order because Supreme Court Rule 44 allows a petition for rehearing within 25 days of the denial of certiorari. In this sense, he argues, the denial of certiorari is not really complete until the Court denies a petition for rehearing, or the time for filing a petition for rehearing expires. The Supreme Court has not directly addressed the effect of rehearing procedure on the finality of a conviction for purposes of § 2255. But we held in Horton that the availability of a petition for rehearing a denial of certiorari has no effect on the finality of a conviction for purposes of § 2255. Horton, 244 F.3d at 551. The Supreme Court's decision in Clay, decided after Horton, reinforces our decision.

In Clay, the Court was asked to decide when finality attaches for purposes of postconviction review in a case where the federal prisoner brought an unsuccessful direct appeal but then failed to petition for certiorari. Clay, 537 U.S. at 524, 123 S.Ct. 1072. Rather than accept the government's argument that finality attached when the appellate court issued its mandate in the direct appeal, the Court followed what it characterized as its "consistent understanding of finality in the context of collateral review" and held that finality attached when the time for filing a certiorari petition expired. Id. The Court held that in the postconviction context, "finality has a long-recognized, clear meaning: Finality attaches when this Court affirms a conviction on the merits on direct review or denies a petition for a writ of certiorari, or when the time for filing a certiorari petition expires." Id. at 527, 123 S.Ct. 1072. Just last month, in a case involving another of the statutory triggers to § 2255's one-year limitations period, the Supreme Court reiterated Clay's statement of the finality rule in the postconviction context. See Dodd v. United States, ___ U.S. ___, 125 S.Ct. 2478, 2480, 162 L.Ed.2d 343 (2005).

Robinson points to a minor variation in the Supreme Court's iteration of the finality rule in an effort to cast doubt on its operation. He argues that although the Court has held that finality attaches when certiorari has been denied, it has occasionally said a conviction becomes final "when certiorari has been finally denied," Caspari, 510 U.S. at 390, 114 S.Ct. 948; Griffith, 479 U.S. at 321 n. 6, 107 S.Ct. 708, implying that there is a difference between denial and "final denial" of certiorari. But there is no difference. Unlike procedure in the appellate court, where the timely filing of a petition for panel rehearing automatically stays the court's mandate, see FED. R. APP. P. 41(d)(1), under Supreme Court Rule 16.3 the filing of a petition for rehearing a denial of certiorari has no effect, absent a specific order of the Court or a Justice thereof:

Whenever the Court denies a petition for writ of certiorari, the Clerk will prepare, sign, and enter an order to that effect and will notify forthwith counsel of record and the court whose judgment was sought to be reviewed. The order of denial will not be suspended pending disposition of a petition for rehearing except by order of the Court or a Justice.

SUP. CT. R. 16.3 (emphasis added).

We noted this distinction in Horton and concluded that the opportunity to petition for rehearing of a denial of certiorari has no impact on the finality of convictions for purposes of the one-year limitations period under § 2255. Horton, 244 F.3d at 551. There, certiorari was denied and petitioner Horton did not seek rehearing. One year and two days after the denial of certiorari he filed a habeas petition in district court. The district court noted the untimeliness issue but reached the merits anyway and denied relief on substantive grounds. Id. at 549. On appeal the government urged affirmance on the alternate ground of untimeliness; Horton responded that the one-year limitations period under § 2255, ¶ 6(1) did not begin to run until 25 days after certiorari was denied, taking into consideration the time allowed by Supreme Court rule for a petition for rehearing. Id. at 550; see SUP....