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-3284Gale 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.


1
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


2
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


3
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.

4
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'").


5
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.

6
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.


7
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.


8
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 court enters the judgment of conviction on the docket.


9
In sum, we agree with the Third Circuit that


10
[t]he omission of § 2244's clarifying language from the mention of  "final" in § 2255 is not sufficient to cause us to conclude that  Congress intended a different concept of finality for state and federal  defendants. . . .  [T]hat concept includes the period in which a  defendant can seek discretionary review.  Prior to the expiration of  the time for certiorari review, a conviction is simply not "final" under  either provision.


11
Kapral, 166 F.3d at 575.  We agree that there is simply no indication that  Congress intended to treat state and federal habeas petitioners differently.  See id. at 575.

III.

12
Finally, we find the Supreme Court's definition of "final judgment" in the  context of retroactivity analysis instructive to our interpretation of § 2255.  In Griffith v. Kentucky, 479 U.S. 314, 320-21 (1987), the Court summarized the  history of its retroactivity analysis.  In that context, the Court stated that a  conviction that is "final" means "a case in which a judgment of conviction has  been rendered, the availability of appeal exhausted, and the time for a petition  for certiorari elapsed or a petition for certiorari finally denied."  479 U.S. at 321  n.6 (quotation omitted); see also United States v. Cuch, 79 F.3d 987, 991 n.9  (10th Cir. 1996) (quoting Griffith definition of what is meant by a "final  conviction" in deciding whether new jurisdictional ruling should be applied  retroactively to cases on collateral review).  We have previously applied the Griffith definition of when a judgment of conviction is "final" in a § 2255  context. See United States v. Simmonds, 111 F.3d 737, 744 (10th Cir. 1997) (citing Cuch in holding that the prisoner's conviction was final when the Supreme Court  denied his certiorari petition); see also Bowen v. Roe, 188 F.3d 1157,  1159-60  (9th Cir. 1999) (applying Griffith definition in analyzing when judgment of  conviction is final for purposes of one-year limitation in § 2244(d)(1)).4 Consequently, we apply the Griffith definition in this case to hold that  defendant's judgment of conviction was not final for purposes of the one-year  limitation period in § 2255 until the time during which she could have filed a  petition for writ of certiorari had expired.  This holding is also consistent with our  analysis in Rhine v. Boone, 182 F.3d 1153, 1155-56 (10th Cir. 1999) (comparing  § 2244(d)(2) with § 2244(d)(1)(A), and stating in dicta that we have applied  the Griffith definition to § 2244 and § 2255 in unpublished decisions), cert. denied,  120 S. Ct. 808 (2000).

IV.

13
For the foregoing reasons, we join the holding of the Third Circuit in Kapral and reject the Seventh Circuit's conclusion in Gendron.  We hold  that, for  purposes of § 2255, if a prisoner does not file a petition for writ of certiorari with  the United States Supreme Court after her direct appeal, the one-year limitation  period begins to run when the time for filing a certiorari petition expires.  In this  case, the one-year limitation period began to run on September 19, 1997, ninety  days after this court denied defendant's petition for rehearing.  See Sup. Ct. R.  13.3 (a petition for writ of certiorari to review a judgment must be filed within  ninety days after denial of a timely petition for rehearing, if one is filed). Defendant filed her § 2255 motion on August 31, 1998.  Consequently, her  § 2255  motion was timely.  We REVERSE the district court's judgment and REMAND  this case to the district court for further proceedings consistent with this order  and judgment.



Notes:


1
 After examining the briefs and appellate  record, this panel has determined  unanimously that oral argument would not materially assist the determination  of this appeal.  See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).  The case  is  therefore ordered submitted without oral argument.


2
 We note that, although the district court in  this case followed the reasoning  and result reached by the Seventh Circuit in Gendron, it did not have the benefit  of the Third Circuit's analysis in Kapral at the time it issued its decision.


3
 We do not, however, extend the time for the  possibility that a party could  file a petition for rehearing of a denial of a petition for certiorari.  Applying  Supreme Court Rule 16.3, we conclude in United States v. Willis, 202 F.3d 1279 (10th Cir. Feb. 1, 2000) (a case being issued contemporaneously  with this case) that a judgment of conviction is final when the United States  Supreme Court denies certiorari, notwithstanding the possibility that the  petitioner could seek rehearing of the denial of certiorari, unless, of course, the  Supreme Court actually suspends its denial of certiorari pursuant to Supreme  Court Rule 16.3.


4
 We note that we have also applied the Griffith definition to analysis of  the one-year limitation periods of § 2244 and § 2255 in several unpublished  orders and judgments.  See Coelho v. Romero, No. 98-2282, 1999 WL 430166,  at *1 (10th Cir. June 28, 1999) (§ 2244) (unpublished); Harris v.  Champion,  No. 98-6318, 1999 WL 84476, at *1 (10th Cir. Feb. 22, 1999) (§ 2244)  (unpublished); United States v. Lacey, No. 98-3030, 1998 WL 777067, at *1  (10th Cir. Oct. 27, 1998) (§ 2255) (unpublished); Sierra v. Evans, No.  98-6040,  1998 WL 712578, at *2 (10th Cir. Oct. 13, 1998) (§ 2244) (unpublished); United  States v. Moss, No. 97-6277, 1998 WL 327868, at *1 (10th Cir. June 18, 1998)  (§ 2255) (unpublished).


