United States v. Wheaten

• Decision Date: 23 June 2016
• Docket Number: No. 14-51123,14-51123
• Parties: United States of America, Plaintiff–Appellee, v. Derrick Wheaten, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

826 F.3d 843

United States of America, Plaintiff–Appellee

v.Derrick Wheaten, Defendant–Appellant.

No. 14-51123

United States Court of Appeals, Fifth Circuit.

FILED June 23, 2016

Joseph H. Gay, Jr., Michael Robert Hardy, Esq., Assistant U.S. Attorneys, U.S. Attorney's Office, Western District of Texas, San Antonio, TX, for Plaintiff–Appellee.

Derrick Wheaten, Mendota, CA, Pro Se.

Before WIENER, PRADO, and OWEN, Circuit Judges.

PRISCILLA R. OWEN, Circuit Judge:

The district court dismissed Derrick Wheaten's motion pursuant to 28 U.S.C. § 2255, concluding that it was barred by the statute of limitations in the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).¹ We agree with the district court that Wheaten's filing of an untimely petition for writ of certiorari and the Supreme Court's subsequent denial of that petition without comment did not reset or extend the date on which the judgment of his conviction became final. We accordingly affirm the district court's denial of the § 2255 motion.

I

Wheaten pleaded guilty, in federal district court, to aiding and abetting the possession with intent to distribute cocaine base and was sentenced to 132 months of imprisonment. In Wheaten's direct appeal, this court affirmed that conviction and sentence on March 14, 2012,² resulting in a deadline of June 12, 2012, to petition the Supreme Court for a writ of certiorari.³ On May 30, 2012, Wheaten, through counsel, filed a motion to extend the certiorari petition deadline to August 11, 2012, which the Supreme Court denied on June 7, 2012. Despite the passing of the June 12 deadline, Wheaten's counsel filed a certiorari petition on July 5, 2012. The petition was placed on the Supreme Court's docket with a notation as to its untimeliness.

The Government filed a memorandum in response to Wheaten's certiorari petition on July 31, 2012. In that filing, the Government stated that if the Supreme Court chose to “overlook” the untimeliness of Wheaten's petition, then certiorari should be granted, the judgment vacated, and the case remanded for further consideration in light of Dorsey v. United States.⁴ The Supreme Court denied the petition for certiorari without comment on October 1, 2012.⁵

On September 10, 2013, at the earliest, Wheaten filed a motion to vacate his sentence pursuant to 28 U.S.C. § 2255. The Government filed a motion to dismiss the § 2255 motion as time-barred, arguing that the judgment of conviction became final one year after Wheaten's June 12, 2012 deadline to file a certiorari petition.

The district court granted the Government's motion and denied Wheaten's motion. The district court agreed with the Government that the judgment became final when Wheaten's time for filing a certiorari petition expired on June 12, 2012, and held that the Supreme Court's denial of the untimely petition without comment did not restart or extend the limitations period. The district court further held that Wheaten was not entitled to equitable tolling. The district court granted Wheaten a certificate of appealability, concluding that its decision on the timeliness question was in tension with a footnote from a prior decision of this court.⁶ Wheaten appealed.

II

We first consider whether the date on which the judgment of conviction became final for purposes of § 2255(f)(1) was June 12, 2012, the last date on which Wheaten could timely file a petition for writ of certiorari, or October 1, 2012, the date that the Supreme Court denied, without comment, his late-filed certiorari petition. If Wheaten's judgment of conviction became final on the earlier date, then his § 2255 motion was untimely. We review de novo the district court's conclusion that Wheaten's § 2255 motion was untimely.⁷

Under AEDPA, a one year statute of limitations governs habeas motions filed by federal inmates.⁸ That one year period runs from the latest of four triggering events, including, relevant here, “the date on which the judgment of conviction becomes final.”⁹

Although the statute does not define when a conviction “becomes final” for purposes of federal habeas review of a federal conviction, the Supreme Court stated in Clay v. United States that “[f]inality 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.”¹⁰ The Supreme Court's rules of procedure provide that a defendant has ninety days after the court of appeals affirms the conviction to file a certiorari petition,¹¹ unless an extension is obtained. In Clay, the Court decided the “narrow” question of when a judgment in a federal prosecution becomes final if the defendant's direct appeal to a court of appeals is unsuccessful and the defendant does not petition for a writ of certiorari from the Supreme Court.¹² The Government contended in Clay that the judgment became final when the court of appeals' mandate issued (the mandate had automatically issued 21 days after entry of the court of appeals' judgment). The defendant disagreed, contending that the judgement of conviction had become final 69 days later, at the end of the 90-day period for filing a petition for writ of certiorari. The Court held that “[f]or the purpose of starting the clock on § 2255's one-year limitation period,” the “judgment of conviction becomes final when the time expires for filing a petition for certiorari contesting the appellate court's affirmation of the conviction.”¹³

We conclude that the general statement in Clay that “[f]inality attaches when [the Supreme] Court ... denies a petition for a writ of certiorari” was not intended by the Supreme Court to govern the situation in which an untimely petition for writ of certiorari is summarily denied. The Court did not consider in Clay whether the denial of an untimely petition for certiorari, without comment, affected the § 2255 limitations period, and the Court has not addressed that question in any of its other decisions. If the Court's statement were applied without regard to the timeliness of a petition for certiorari, then a defendant could extend the time for filing a motion under § 2255 for years by filing and obtaining summary denial of a late petition for certiorari. We are unwilling to read Clay so expansively.

Wheaten relies on a footnote from this court's decision in United States v. Redd, in which we stated:

Even though Redd filed his certiorari petition more than ninety days after this court had affirmed the denial of his rule 33 motion, the fact that the Supreme Court considered and denied the petition started the statute of limitations from the date of the denial of the writ. “Finality attaches when this Court denies a petition for a writ of certiorari.”¹⁴

However, this statement in Redd had no bearing on any issue actually decided in that appeal. The statement is dicta and is not a statement of the law in this Circuit that is binding on our panel.¹⁵

In Redd, we were concerned only with whether a defendant's Rule 33 motion for a new trial filed after the deadline for filing a notice of appeal tolls the date of finality of the judgment of conviction for purposes of § 2255(f)(1).¹⁶ We were not required to resolve the effect of the denial of an untimely certiorari petition. The judgment of our court that affirmed Redd's conviction and sentence was entered in December 2003.¹⁷ Redd did not file a petition for writ of certiorari seeking review of that judgment within 90 days of its issuance.¹⁸ He had, however, filed a motion for a new trial while his 2003 appeal was pending, and in our December 2003 decision, we remanded the motion for new trial to the district court for disposition.¹⁹ The district court denied the motion, and this court affirmed that ruling on August 12, 2005.²⁰ Redd filed a petition for writ of certiorari regarding the denial of his Rule 33 motion on August 4, 2006.²¹ The August 4, 2006 petition for certiorari was untimely, and it was denied without comment by the Supreme Court on October 2, 2006.²² Redd then filed, in November 2006, a § 2255 motion seeking habeas relief from his conviction and sentence that the district court denied as untimely.²³ We affirmed, and in discussing the case's history, we gratuitously opined in footnote 3 that even though Redd's certiorari petition was untimely, “the fact that the Supreme Court considered and denied the petition started the statute of limitations from the date of the denial of the writ,” citing Clay.²⁴ However, whether the denial of Redd's untimely 2006 petition for certiorari affected the § 2255 limitations period was irrelevant to our decision regarding the limitations period applicable to our December 2003 judgment. We held that Redd's 2003 Rule 33 motion for a new trial did not stop the clock for purposes of § 2255(f)(1), and that our December 2003 judgment affirming his conviction became final 90 days after its entry.²⁵ We reasoned that a criminal defendant has up to three years, in some circumstances, to file a motion for new trial, and we rejected the proposition that a defendant could extend the limitations period in § 2255(f) by filing a Rule 33 motion.²⁶ We therefore affirmed the district court's conclusion that Redd's § 2255 motion challenging the conviction affirmed in 2003 was untimely.²⁷ Footnote 3's statement was unnecessary to the judgment we rendered in Redd.²⁸ We consider that statement only to the extent that it is persuasive. Our determination of whether the Supreme Court's denial of Wheaten's untimely petition for certiorari affected the finality of the judgment convicting him is a question that we consider de novo .

Wheaten argues that the Supreme Court Clerk's acceptance and transmission of his untimely petition to the Court, and the Court's consideration and denial of it, “reopened direct review” and “restored the pendency of the direct appeal,” such that the one-year period in which he was required to file his habeas motion began the day the Supreme...