                            In the
 United States Court of Appeals
              For the Seventh Circuit
                         ____________

No. 04-1223
CHARLES R. ROBINSON, IV,
                                          Petitioner-Appellant,
                               v.

UNITED STATES OF AMERICA,
                                          Respondent-Appellee.
                         ____________
           Appeal from the United States District Court
               for the Central District of Illinois.
             No. 03 C 3059—Richard Mills, Judge.
                         ____________
      ARGUED APRIL 7, 2005—DECIDED JULY 29, 2005
                     ____________




  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
2                                                No. 04-1223

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 (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 distrib-
ute, possession of cocaine base with intent to distribute, and
simple possession of cocaine base. Given Robinson’s exten-
sive criminal history, the imposition of a number of en-
hancements 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 con-
cluded 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
No. 04-1223                                                  3

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 recon-
sideration in light of Apprendi v. New Jersey, 530 U.S. 466
(2000). Robinson v. United States, 531 U.S. 1005 (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 con-
cluded 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 brief-
ing 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
4                                                No. 04-1223

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 (citing Caspari v. Bohlen, 510 U.S. 383, 390
(1994); Griffith v. Kentucky, 479 U.S. 314, 321 n.6 (1987);
Barefoot v. Estelle, 463 U.S. 880, 887 (1983); United States
v. Johnson, 457 U.S. 537, 542 n.8 (1982); and Linkletter v.
Walker, 381 U.S. 618, 622 n.5 (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 deci-
sion 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. 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
No. 04-1223                                                  5

attached when the time for filing a certiorari petition
expired. Id. The Court held that in the postconviction con-
text, “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. 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, 125 S. Ct. 2478, 2480 (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; Griffith, 479 U.S. at 321 n.6, 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 rehear-
ing 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 certio-
    rari, 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 re-
    viewed. 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).
6                                                No. 04-1223

  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. CT. R. 44.2 (providing that a petition for
rehearing of an order denying certiorari shall be filed within
25 days after the date of the order of denial).
  We rejected Horton’s argument, holding that because
Supreme Court Rule 16.3 makes the denial of certiorari
effective upon entry on the Court’s docket, the filing of a
petition for rehearing has no effect on the finality of the
conviction. Horton, 244 F.3d at 550. Once certiorari is de-
nied, no federal court needs to take any further action to
dispose of the case. Id. at 550-51. The conviction is therefore
final for purposes of postconviction relief, and the clock
starts to run on the one-year limitations period in § 2255,
“irrespective of the opportunity to petition the Supreme
Court for rehearing.” Id. at 551.
  Robinson acknowledges Horton but asks us to revisit the
holding of that case in light of language in Simpson & Co.
v. Commissioner of Internal Revenue, 321 U.S. 225 (1944)
and Flynn v. United States, 75 S. Ct. 285 (1955). In
Simpson, the Supreme Court was asked to decide whether
it could entertain an out-of-time petition for rehearing a
denial of certiorari in light of a provision in the Internal
No. 04-1223                                                   7

Revenue Code deeming the decisions of the Board of Tax
Appeals (predecessor to the Tax Court) final upon denial of
a petition for certiorari or expiration of 30 days from
issuance of the Supreme Court’s mandate. Simpson, 321
U.S. at 227. The Court held that the tax statute by its terms
prevented the Court from hearing the petitioner’s claim. Id.
at 230. Robinson points to the following language in
Simpson:
    No mandate issues on denial of certiorari, and after
    a final decision the mandate does not issue until ex-
    piration of the 25-day period within which petition for
    rehearing may be filed. If, therefore, we follow the prac-
    tice heretofore observed, by which we regard denials of
    certiorari as qualified until the 25-day period expires,
    we put the denial and the decision on a generally equal
    basis except as Congress has seen fit to give the latter
    an additional thirty days before finality.
Id. at 229-30. Robinson contends that Simpson’s character-
ization of denials of certiorari as “qualified” should, in turn,
qualify Clay’s holding that finality for postconviction pur-
poses attaches when certiorari is denied. Thus, Robinson
argues, a “final” denial of certiorari occurs only after the
period for rehearing has elapsed or, if rehearing is re-
quested, when it is denied.
  To read Simpson as a limitation on Clay would require us
to ignore the Court’s current rules and its unequivocal
pronouncement on the issue of finality in the postconviction
context in Clay itself. The Supreme Court’s rules have
changed since Simpson. Former Rule 34, the predecessor to
Rule 16.3, was silent on whether an order denying certiorari
was suspended pending disposition of a rehearing petition;
as noted above, however, current Rule 16.3 specifically
provides that “[t]he order of denial will not be suspended
pending disposition of a petition for rehearing except by
order of the Court or a Justice.” Thus, under the current
8                                                 No. 04-1223

rules, “the denial of certiorari is effective when issued and
it disposes of the case before the Supreme Court.” Horton,
244 F.3d at 551 (citing SUP. CT. R. 16.3; Marcello, 212 F.3d
at 1008). Furthermore, the court was straightforward in its
2003 holding in Clay: “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.” Clay, 537 U.S. at 527. The
Court could have added the 25-day rehearing window to
this formulation, but did not.
  Robinson also extrapolates certain language in Flynn, 75
S. Ct. at 286, to support his argument that denials of
certiorari are “qualified” in nature. Flynn is a 1955 in-
chambers opinion issued by Justice Frankfurter withhold-
ing the Court’s order of denial of certiorari in a criminal
case. Justice Frankfurter granted the defendants’ request
pursuant to then-Rule 25 of the Supreme Court, which
authorized a Justice to direct the Clerk to withhold notifi-
cation of the denial of certiorari. Along the way to granting
the defendants’ request, Justice Frankfurter offered the
following general comment on the availability of rehearing:
    The right to [rehearing] is not to be deemed an empty
    formality as though such petitions will as a matter of
    course be denied. This being so, the denial of a petition
    for certiorari should not be treated as a definitive de-
    termination in this Court, subject to all the conse-
    quences of such an interpretation.
Id. at 286.
  This passage does not assist Robinson. The Flynn defen-
dants were at the Supreme Court requesting a withholding
of the Court’s notification of the denial of certiorari in order
to prevent the revocation of their bail, which was to occur
automatically, pursuant to the district court’s order, upon
affirmance of their convictions by the Court of Appeals.
Justice Frankfurter withheld the order for five days, long
No. 04-1223                                                  9

enough for the defendants to file their motion for rehearing
of the denial of certiorari. He engaged in no consideration of
whether a denial of certiorari is “definitive” for purposes of
conferring finality in the postconviction context; the opinion
therefore cannot be read as having a substantive effect on
the question of finality under § 2255, ¶ 6(1), particularly in
light of the current text of Rule 16.3.
  Our holding in Horton is consistent with that of every
other circuit court that has considered this issue.
United States v. Segers, 271 F.3d 181, 184 (4th Cir. 2001)
(absent the issuance of a suspension order by the Court or
a Justice thereof, the conviction of a prisoner who has peti-
tioned for certiorari becomes final for purposes of the one-
year period of limitations under § 2255, ¶ 6(1) when the
Court denies certiorari, rejecting prisoner’s argument that
period begins only upon expiration of 25-day period for re-
hearing); United States v. Thomas, 203 F.3d 350, 356 (5th
Cir. 2000) (same); United States v. Willis, 202 F.3d 1279,
1280-81 (10th Cir. 2000) (same); see also United States v.
Campa-Fabela, 339 F.3d 993, 994 (8th Cir. 2003) (finding
persuasive the reasoning of the courts that have specifically
addressed the rehearing petition issue in the AEDPA
context, relying on Supreme Court Rule 16.3). We perceive
no compelling reason to overrule Horton and create a split
among the circuits on this quite basic and recurring issue.
  Applying Horton, Robinson’s petition for rehearing the
denial of his certiorari petition had no effect on the finality
of his conviction. Pursuant to Clay, Horton, and Marcello,
Robinson’s conviction became final for purposes of § 2255,
¶ 6(1) on October 1, 2001, when the Supreme Court denied
his petition for certiorari. Robinson filed his § 2255 motion
for postconviction relief on March 14, 2003, more than one
10                                                    No. 04-1223

year after his conviction became final.1 The district court
properly denied it as untimely.
                                                        AFFIRMED.

A true Copy:
       Teste:

                           ________________________________
                           Clerk of the United States Court of
                             Appeals for the Seventh Circuit




1
   Robinson makes a cursory fallback argument that the limita-
tions period should be equitably tolled because he justifiably relied
on the denial of his rehearing petition as the date on which his
conviction became final. This argument is foreclosed by United
States v. Marcello, 212 F.3d 1005, 1010 (7th Cir. 2000). Equitable
tolling is granted sparingly, where extraordinary circumstances
beyond the litigant’s control prevented timely filing; a mistaken
understanding about the deadline for filing is not grounds for
equitable tolling. Id.


                      USCA-02-C-0072—7-29-05
