USA v. Burch

• Decision Date: 01 February 2000
• Docket Number: No. 98-3301,98-3301
• Parties: (10th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. GALE F. BURCH, Defendant-Appellant
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1274

202 F.3d 1274 (10th Cir. 2000)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. GALE F. BURCH, Defendant-Appellant.

No. 98-3301

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

February 1, 2000

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS. D.C. No. 98-CV-3284

Gale F. Burch, pro se.

Jackie N. Williams, United States Attorney, Thomas G. Luedke, Assistant U.S. Attorney, Topeka, Kansas, for Plaintiff-Appellee.

Before BRORBY, EBEL, and HENRY, Circuit Judges.

BRORBY, Circuit Judge.

Defendant was convicted of conspiring to possess with intent to distribute a controlled substance. This court affirmed her conviction on May 22, 1997. She petitioned for rehearing, and we denied rehearing on June 20, 1997. Defendant did not petition the United States Supreme Court for a writ of certiorari after her conviction and sentence were affirmed on direct appeal. On August 31, 1998, defendant filed a motion pursuant to 28 U.S.C. § 2255 to vacate, set aside or correct her sentence. The district court dismissed her motion as time-barred and issued a certificate of appealability. Defendant appeals, and we reverse the district court's judgment.¹

The Antiterrorism and Effective Death Penalty Act (AEDPA) amended 28 U.S.C. § 2255 to allow federal prisoners one year from the date on which the judgment of their conviction became final to file a motion to vacate, set aside or correct their sentence. This appeal presents the following question, as yet unanswered by this court: When does the judgment of conviction become final in the case of a defendant who does not petition the United States Supreme Court for a writ of certiorari after her conviction was affirmed on appeal?

The two circuits that have answered this question have reached contrary results. The Seventh Circuit held that, if a federal prisoner does not file a petition for writ of certiorari with the United States Supreme Court after her conviction is affirmed on appeal, the judgment of conviction is final for purposes of § 2255 when the federal appellate court issues its mandate in the direct criminal appeal. Gendron v. United States, 154 F.3d 672, 674 (7th Cir. 1998), cert. denied, 119 S. Ct. 1758 (1999). The Third Circuit, on the other hand, held that "a judgment of conviction becomes final within the meaning of § 2255 on the later of (1) the date on which the Supreme Court affirms the conviction and sentence on the merits or denies the defendant's timely filed petition for certiorari, or (2) the date on which the defendant's time for filing a timely petition for certiorari review expires." Kapral v. United States, 166 F.3d 565, 577 (3d Cir. 1999) (quotation omitted).²

We review this issue of statutory interpretation de novo. See United States v. Shuler, 181 F.3d 1188, 1189 (10th Cir. 1999). We join the Third Circuit in holding that, for purposes of determining when the limitations period in 28 U.S.C. § 2255(1) begins to run if a defendant does not petition the United States Supreme Court for a writ of certiorari after her direct appeal, her judgment of conviction is final after the time for seeking certiorari review has expired. Kapral, 166 F.3d at 570, 577.

I.

In our analysis of this issue, the first place we turn is to the language of the statute. The relevant limitation provision of 28 U.S.C. § 2255 states that the one-year limitation period shall run from "the date on which the judgment of conviction becomes final." Id. § 2255(1). The statute does not define when a judgment of conviction becomes final. Like the court in Kapral, we recognize that there are several possible meanings of the word "final" in this context. See Kapral, 166 F.3d at 569. First, the judgment of conviction could become final when it is entered by the district court. See BLACK'S LAW DICTIONARY 567 (6th ed. 1990) (defining a final decision or judgment as one that "leaves nothing open to further dispute and which sets at rest cause of action between parties. One which settles rights of parties respecting the subject-matter of the suit and which concludes them until it is reversed or set aside . . . ."). It could also become final when the court of appeals affirms the conviction or the time for an appeal expires. Finally, the date the judgment of conviction becomes final could be the date on which the Supreme Court affirms on the merits, denies a petition for writ of certiorari, or the time to file a certiorari petition expires. See id. (defining a final decision or judgment as "a decision from which no appeal or writ of error can be taken"); see also Kapral, 166 F.3d at 570 (quoting WEBSTER'S ENCYCLOPEDIC UNABRIDGED DICTIONARY OF THE ENGLISH LANGUAGE 532 (1989 ed.) as defining "final" in the legal sense as "'precluding further controversy on the questions passed upon'").

We must look to the language and design of the AEDPA to ascertain the plain meaning of the term "final" in § 2255. See K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988). Section 2255 authorizes and addresses the commencement of collateral attack on a sentence. The AEDPA was enacted to constrain the filing of habeas petitions by imposing a time limitation where none existed before. See Kapral, 166 F.3d at 571 n.4 (citing legislative history). It would make no sense and would not further judicial efficiency or economy to encourage a collateral attack on a judgment of conviction that was subject to the possibility of direct certiorari review. Allowing such a result would mean that a district or appeals court could be faced with ruling on a habeas petition while Supreme Court review of the underlying conviction and sentence is pending. It is true that this scenario is unlikely because the Supreme Court grants only a very small percentage of certiorari petitions, but the possibility would exist nonetheless. We agree with the Third Circuit that the "AEDPA's purpose is best furthered by an interpretation of § 2255 that recognizes the legal reality that the decision of a court of appeals is subject to further review, and therefore not 'final' within the meaning of § 2255 until direct review has been completed." Id. at 571. To that end, read in the context of the AEDPA, § 2255's use of "final" plainly means "a decision from which no appeal or writ of error can be taken," BLACK'S LAW DICTIONARY 629 (6th ed. 1990).³ Additionally, we agree that "[r]ecognizing that one is allowed 90 days to file a petition for certiorari does not mitigate the congressional objective of imposing time limits where none previously existed." Kapral, 166 F.3d at 571.

II.

Also relevant to our interpretation of when the limitation period in § 2255 begins to run is the language in § 2244, which sets the parameters of the limitation period for habeas petitions filed by state prisoners. That section states that the one-year limitation period begins to run on "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." 28 U.S.C. § 2244(d)(1)(A). The Seventh Circuit, in holding that the time limit in § 2255 runs from the issuance of the mandate by the court of appeals if no certiorari petition is filed, hung its hat on the difference in the language used in § 2244(d)(1)(A) and § 2255(1). Gendron, 154 F.3d at 674. The Gendron court relied on the principal of statutory interpretation set forth in Russello v. United States, 464 U.S. 16, 23 (1983) (quotation omitted), that "where Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion." Thus, Gendron reasoned that since § 2244 specifically excludes from the one-year limitation period the time for seeking review, regardless of whether such review is, in fact, sought, and § 2255 does not specifically exclude the time for seeking review, Congress intended to treat the limitation periods of the two sections differently. 154 F.3d at 674. We find this rationale unpersuasive.

As the concurrence in Kapral deftly recognizes, the principle set forth in Russello is "based on the hypothesis of careful draftsmanship." 166 F.3d at 579 (citing Russello, 464 U.S. at 23 ("We would not presume to ascribe this difference to a simple mistake in draftsmanship.")) (concurring opinion). We recognize and agree that the AEDPA is not exactly a model of careful statutory drafting. See Kapral, 166 F.3d at 575 n.7 ("'[I]n a world of silk purses and pigs' ears, [AEDPA] is not a silk purse of the art of statutory drafting.'" (quoting Lindh v. Murphy, 521 U.S. 320, 336 (1997))). Consequently, we disagree with Gendron's application of the principal of statutory interpretation set forth in Russello as the definitive answer in interpreting § 2255.

Furthermore, we see the Gendron approach as flawed because that court did not uniformly apply the statutory interpretation principal it espoused. Gendron based its interpretation on the principal that statutory "language will not be implied where it has been excluded." 154 F.3d at 674. In holding that the judgment of conviction is final under § 2255 when the appeals court issues its mandate if no certiorari petition is filed, however, that court did precisely what it said it could not it implied language in § 2255 that had been excluded. Section 2244(d)(1)(A) speaks of a judgment of conviction being final at "the conclusion of direct review or the expiration of time for seeking such review." The Gendron court refused to read the phrase "or the expiration of time for seeking such review" into § 2255, but to interpret the statute as it did, the court necessarily read the phrase "by the conclusion of direct review" into § 2255. Had the Gendron court truly applied the Russello principle and taken it to its logical conclusion, it would have held that a judgment of conviction is final for purposes of § 2255 when the trial...