USA. v. Torres

• Decision Date: 23 September 1999
• Docket Number: CR-92-153,No. 98-7657,CA-98-369-3-P,98-7657
• Parties: (4th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. D'ANDRE TORRES, a/k/a Danny Scott, a/k/a D, Defendant-Appellant. (). . Argued:
• Court: U.S. Court of Appeals — Fourth Circuit

Page 836

211 F.3d 836 (4th Cir. 2000)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. D'ANDRE TORRES, a/k/a Danny Scott, a/k/a D, Defendant-Appellant.

No. 98-7657 (CR-92-153, CA-98-369-3-P).

UNITED STATES COURT OF APPEALS, FOR THE FOURTH CIRCUIT.

Argued: September 23, 1999.

Decided: May 3, 2000.

Appeal from the United States District Court for the Western District of North Carolina, at Charlotte.

Robert D. Potter, Senior District Judge.

COUNSEL ARGUED: Aaron Peter Buda, SCHAD, BUDA, COOK, L.L.C., Cincinnati, Ohio, for Appellant. David S. Kris, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. ON BRIEF: Mark T. Calloway, United States Attorney, Brian L. Whisler, Assistant United States Attorney, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.

Before LUTTIG and WILLIAMS, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Affirmed by published opinion. Judge Williams wrote the majority opinion, in which Judge Luttig joined. Senior Judge Hamilton wrote a dissenting opinion.

OPINION

WILLIAMS, Circuit Judge:

D'Andre Torres filed a motion for collateral relief under 28 U.S.C.A. § 2255 (West Supp. 1999), asserting that his conviction for conspiring to possess with intent to distribute cocaine base in violation of 21 U.S.C.A. § 846 (West 1999) should be overturned because of several alleged constitutional defects in his trial. The United States District Court for the Western District of North Carolina denied the motion on the ground that it was filed outside the one-year limitation period of § 2255, which gives a federal prisoner¹ one year from the date his conviction becomes final to commence a collateral attack on the conviction by filing a motion under that section. Torres appeals, claiming that, for purposes of § 2255, a federal prisoner's judgment of conviction is not final until the expiration of the ninety-day period he has to file a petition for certiorari to the Supreme Court -even if that prisoner, like Torres, chose not to file a petition for certiorari. Torres contends that because his conviction did not become final for purposes of § 2255 until the expiration of ninety days after this Court's entry of judgment on his direct appeal, his§ 2255 motion was timely filed. We reject Torres's argument and hold that, for purposes of § 2255, the conviction of a federal prisoner whose conviction is affirmed by this Court and who does not file a petition for certiorari becomes final on the date that this Court's mandate issues in his direct appeal. Accordingly, we affirm the district court's dismissal of Torres's § 2255 motion as untimely.

I.

On August 1, 1995, D'Andre Torres was convicted of one count of conspiring to possess with intent to distribute cocaine base in violation of 21 U.S.C.A. § 846 (West 1999). He was sentenced to 360 months in jail and five years supervised release. On May 19, 1997, a panel of this Court affirmed his conviction on direct appeal. See United States v. Torres, 113 F.3d 1233 (4th Cir. 1997) (unpublished). Torres did not file a petition for rehearing, and this Court issued its mandate on June 10, 1997. Torres thereafter did not file a petition for certiorari with the Supreme Court.

Torres asserts that on August 16, 1998, he filed a motion for collateral relief under 28 U.S.C.A. § 2255 (West Supp. 1999) with the United States District Court for the Western District of North Carolina by placing that motion in his prison's mail system. In that motion, Torres claimed that there were several constitutional defects in his trial, including ineffective assistance of counsel in violation of the Sixth Amendment, a violation of his Fifth Amendment right to due process, and a violation of his Sixth Amendment right to a fair trial. The district court, without requiring a response from the Government, denied the motion on the ground that it was filed outside the one-year limitation period of § 2255. The district court found that Torres had filed his motion on August 24, 1998, and that Torres's judgment of conviction had become final on June 12, 1997.² Thus, the district court concluded that Torres had filed his § 2255 motion after the expiration of the one-year limitation period provided by§ 2255, and it dismissed his motion as untimely.³ We now consider Torres's timely appeal from the district court's decision.

II.

The issue we are called upon to decide is this: When, under 28 U.S.C.A. § 2255 (West Supp. 1999), does a federal prisoner's judgment of conviction become final if that prisoner decided not to file a petition for certiorari in the Supreme Court after an unsuccessful direct appeal to this Court? Torres contends that his judgment of conviction did not become final until August 17, 1997, which is exactly ninety days after this Court, on May 19, 1997, affirmed his conviction on direct appeal. According to his offered reading of § 2255, his judgment of conviction did not become final, and § 2255's one-year limitation period did not begin running, until the expiration of ninety days after the entry of judgment during which he could have filed -but did not -a petition for certiorari.⁴ On this appeal, the Government agrees with Torres's offered reading of § 2255.

Like all federal prisoners now seeking relief under§ 2255, Torres brings his case in the wake of Congress's enactment of the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (AEDPA). This statute provides a one-year limitation period for the filing of § 2255 motions by federal prisoners. Previously, there was no time limit in which a federal prisoner could collaterally attack his conviction by filing a § 2255 motion.⁵ The AEDPA amended § 2255 to read, in relevant part:

A 1-year period of limitation shall apply to a motion under this section. The limitation period shall run from the latest of --

(1) the date on which the judgment of conviction becomes final . . . .

28 U.S.C.A. § 2255 (West Supp. 1999).

Thus, Congress has declared that the one-year limitation period in which a federal prisoner such as Torres can file a§ 2255 motion begins to run on the date on which that prisoner's judgment of conviction becomes final.⁶ Congress did not explicitly state when a judgment of conviction becomes final, and there is a disagreement among our sister circuits as to when for purposes of§ 2255, a judgment of conviction becomes final in the situation where a federal prisoner decides not to file a petition for certiorari to the Supreme Court. Compare Gendron v. United States, 154 F.3d 672, 674 (7th Cir. 1998) (holding that, when a federal prisoner does not file a petition for certiorari, his judgment of conviction becomes final under § 2255 upon the issuance of the court of appeal's mandate), cert. denied, 119 S. Ct. 1758 (1999), with United States v. Gamble, 208 F.3d 536 (5th Cir. Apr. 18, 2000) (holding that, when a prisoner does not file a petition for certiorari, his judgment of conviction does not become final under § 2255 until the time for filing a certiorari petition expires), United States v. Burch, 202 F.3d 1274, 1279 (10th Cir. 2000) (same), and Kapral v. United States , 166 F.3d 565, 577 (3d Cir. 1999) (same). For the reasons that follow, we believe that the Seventh Circuit holds the better view.

In declaring that § 2255's one-year limitation period begins to run on the date on which a prisoner's judgment of conviction becomes final, Congress was presumably aware that a federal defendant's judgment of conviction becomes final for purposes of collateral attack at the conclusion of direct review. In our system of federal courts, it is generally accepted that, for a defendant who files a petition for certiorari with the Supreme Court, the conclusion of direct review occurs when the Supreme Court either denies his petition or decides his case on the merits. After the Supreme Court does either of these two things, the defendant's judgment of conviction is final because literally nothing more occurs on direct review.

Congress, then, drafted the text of § 2255 against a backdrop in which the Supreme Court's denial of a federal prisoner's petition for certiorari or its resolution of his case on the merits represents the conclusion of direct review. Congress almost certainly did not consider the situation in which a federal defendant, upon the affirmance of his conviction by a court of appeals, exercises his prerogative not to file a petition for certiorari. Thus, we think that in addressing the present case, which involves this very situation, it is important to hew as closely as possible to the actual text of the statute. Here, we believe that, as both a logical and textual matter, where a defendant decides not to pursue relief in the Supreme Court, his conviction becomes final upon the issuance of the court of appeal's mandate. This must be the case, we believe, because, in such a circumstance, literally nothing else thereafter occurs following the issuance of the mandate by the appellate court.

We find support for our holding by juxtaposing the text of § 2255 with the text of 28 U.S.C.A. § 2244 (West 1994 & Supp. 1999). Just as the AEDPA amended § 2255 to provide a one-year limitation period for federal prisoners to file their § 2255 motions, it amended § 2244 to provide a one-year limitation period for state prisoners to file their habeas petitions. In § 2244, Congress specifically stated that the one-year limitation period will run from the time that a state judgment becomes final "by the conclusion of direct review or the expiration of the time for seeking such review."⁷ 28 U.S.C.A. § 2244(d)(1)(A). In using this phrase, Congress offered two dates from which its one-year limitation period can begin running (1) at the conclusion of direct review or (2) at the expiration of time in which further direct review could have been sought, but was not. Congress, therefore, expressly provided an alternative starting date for its limitation...