                        REVISED APRIL 29, 2002
                    UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT


                                No. 01-20425


                             THOMAS M. GIESBERG,

                                                    Petitioner - Appellant,

                                       v.


                            JANIE COCKRELL,
           Director, Texas Department of Criminal Justice,
                        Institutional Division
                                              Respondent - Appellee,


            Appeal from the United States District Court
                 for the Southern District of Texas


                               April 23, 2002


Before JOLLY, JONES and BARKSDALE, Circuit Judges.

PER CURIAM:

            Thomas M. Giesberg, a Texas inmate convicted of murder,

appeals the district court’s order dismissing his application for

habeas    corpus   relief.       The    district    court     determined   that

Giesberg’s habeas petition was time-barred by the Antiterrorism and

Effective Death Penalty Act of 1996 (“AEDPA”).              This court granted

Giesberg   a   Certificate     of   Appealability    (“COA”)     to   determine

whether    Giesberg’s   petition       for   rehearing   of    the    denial   of

certiorari filed with the Supreme Court tolled AEDPA’s one-year
limitations period. We hold that Giesberg’s petition for rehearing

of the denial of certiorari did not toll the limitations period,

and AFFIRM the order of the district court.

                              BACKGROUND

            On April 28, 1995, a Texas jury found Giesberg guilty of

murder.     Giesberg was sentenced to sixty-five years in prison.

Giesberg’s conviction was affirmed on direct appeal by the First

Court of Appeals of Texas.   Giesberg v. State, 945 S.W.2d 120 (Tex.

App. - Houston [1st Dist.], pet. granted).         The Texas Court of

Criminal Appeals affirmed Giesberg’s conviction on September 30,

1998.     Giesberg v. State, 984 S.W.2d 245 (Tex. Crim. App. 1998).

Giesberg’s petition for a writ of certiorari was denied by the

Supreme Court on February 22, 1999.        Giesberg v. Texas, 525 U.S.

1147, 119 S.Ct. 1044 (1999).   Giesberg filed a timely petition for

rehearing of the denial of certiorari. This petition for rehearing

was denied by the Supreme Court on April 19, 1999.        Giesberg v.

Texas, 526 U.S. 1082, 119 S.Ct. 1490.

            On April 18, 2000, Giesberg filed a petition for a writ

of habeas corpus pursuant to 28 U.S.C. § 2254 in the United States

District Court for the Southern District of Texas.       The State of

Texas moved to dismiss Giesberg’s petition as time-barred by AEDPA,

28 U.S.C. § 2244(d)(1)(A).     The district court, relying on this

court’s decision in United States v. Thomas, 203 F.3d 350 (5th Cir.

2001), determined that Giesberg’s state conviction was rendered



                                  2
final    on    the     date   the    Supreme     Court   denied    certiorari.

Accordingly,     the    district    court   dismissed    Giesberg’s    petition

because it was filed more than one year after his conviction was

final.     See 28 U.S.C. § 2244(d).              The district court denied

Giesberg’s request for a COA.

              This court granted Giesberg a COA to determine whether

AEDPA’s one-year limitations period was tolled by the petition for

rehearing of the denial of certiorari timely filed by Giesberg in

the Supreme Court.1

                                    DISCUSSION

              An order dismissing a habeas application as time-barred

by AEDPA is subject to de novo review.            Johnson v. Cain, 215 F.3d

489, 494 (5th Cir. 2000).          Giesberg’s habeas petition, governed by

the provisions of AEDPA, had to be filed within one year of “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).        Giesberg argues that his conviction was

not final until the Supreme Court denied his petition for rehearing

of the denial of certiorari.             The State of Texas argues that

Giesberg’s conviction was final on the date the Supreme Court

denied Giesberg’s petition for writ of certiorari.


      1
            A COA should be granted on a procedural issue under AEDPA when the
petitioner shows, “at least, that jurists of reason would find it debatable
whether the petition states a valid claim of the denial of a constitutional right
and that jurists of reason would find it debatable whether the district court was
correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484-85
(2000). Both parts of this test must be fulfilled before a COA should be issued.

                                        3
              This court has held that a federal conviction becomes

final for purposes of AEDPA’s one-year limitation period when the

Supreme Court denies the petition for writ of certiorari.                         United

States   v.    Thomas,     203   F.3d    350,       356   (5th   Cir.    2000).        The

petitioners in Thomas argued that their convictions were not final

until the expiration of the twenty-five-day period for filing a

petition for rehearing of the denial of certiorari.                           This court

rejected this argument because “[t]he plain text of Supreme Court

Rule 16.3 provides that an order denying certiorari review takes

legal effect and is not suspended pending any application for

rehearing.”      Id.

              Giesberg seeks to distinguish Thomas for two reasons.

First, he argues that Thomas only addressed the provisions of §

2255 applicable to federal prisoners seeking habeas relief, whereas

he is a state prisoner.          Second, Giesberg contends that, unlike the

circumstances of this case, the petitioners in Thomas had not

actually      filed    a   petition     for       reconsideration     for     denial    of

certiorari.

              Giesberg’s first argument is without merit. The one-year

limitation provision applicable to a federal prisoner’s § 2255

motion   for    relief      is   “virtually        identical”    to     the    provision

applicable to a state prisoner’s § 2254 motion.                             Flanagan v.

Johnson, 154 F.3d 196, 200 n.2 (5th Cir. 1998) (citing United

States v. Flores, 135 F.3d 1000, 1002 n.7 (5th Cir. 1998)).



                                              4
Despite    a   minor     difference   in    the   statutory   language     that

determines when the limitation period begins to run for § 2254 and

§ 2255 motions,2 the key to both provisions is the finality of the

underlying judgment. Although Thomas addressed only the provisions

of § 2255(1), its reasoning regarding the finality of a denial of

certiorari is applicable to Giesberg’s state conviction.

            Giesberg next contends that Thomas is distinguishable

because the petitioners in Thomas had not filed petitions for

rehearing of the denial of certiorari.              While this is correct,

nevertheless,        Thomas’s   reasoning    appears   dispositive     against

Giesberg.      Thomas rested its holding on Supreme Court Rule 16.3,

which states:

      Whenever the Court denies a petition for a 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).           The court reasoned that Rule

16.3 makes clear that “an order denying a petition for writ of

certiorari      is    effective    immediately     upon   issuance,      absent

extraordinary intervention by the Supreme Court or a Justice of the



      2
            Section 2244(d)(1)(A), the limitation period applicable to a state
prisoner’s motion for habeas relief, provides that the limitation period begins
running 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.” Section
2255(1), applicable to a federal prisoner’s motion for habeas relief, provides
that the limitations period begins running on “the date on which the judgment of
conviction becomes final.”

                                       5
Supreme Court.”      Thomas, 203 F.3d at 355.           In the present case, no

member of the Supreme Court suspended the denial of Giesberg’s

petition for certiorari; Giesberg’s conviction accordingly was

final on the date certiorari was denied.

               This conclusion accords with the decisions of other

circuits.      See United States v. Segers, 271 F.3d 181, 186 n.4 (4th

Cir. 2001) (explaining that filing of petition for rehearing of

denial    of    certiorari   does    not       affect   finality   of   denial   of

certiorari for purposes of AEDPA’s one-year limitation period);

United States v. Willis, 202 F.3d 1279, 1281 (10th Cir. 2000)

(“After the Supreme Court has denied a petition for writ of

certiorari, neither the filing of a petition for rehearing from the

denial of certiorari, nor the expiration of the time in which such

a petition could be filed delays the commencement of the one-year

limitation period.”).3

                                    CONCLUSION

               For the foregoing reasons, Giesberg’s conviction was

final, for purposes of AEDPA’s one-year limitations period, when

his petition for certiorari was denied by the Supreme Court.                     His

motion for habeas corpus relief was time-barred by § 2244(d)(1)(A).

The judgment dismissing the habeas petition is therefore AFFIRMED.




      3
            Giesberg also asserts equitable tolling based on his delayed receipt
of information inside the prison about the Thomas decision, supra.          This
contention lacks merit. Felder v. Johnson, 204 F.3d 168, 171-72 (5th Cir.),
cert. denied, 531 U.S. 1035 (2000).

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