                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                               ________________

                                  No. 98-1153
                               ________________

Eric A. Moore,                           *
                                         *
            Appellant,                   *
                                         *      Appeal from the United States
      v.                                 *      District Court for the
                                         *      Western District of Missouri.
United States of America,                *
                                         *
            Appellee.                    *

                               ________________

                         Submitted: November 16, 1998
                             Filed: April 16, 1999
                              ________________

Before McMILLIAN, FLOYD R. GIBSON, and HANSEN, Circuit Judges.
                        ________________

HANSEN, Circuit Judge.

      Eric A. Moore appeals the district court’s dismissal of his 28 U.S.C.A. § 2255
(West Supp. 1998) motion as untimely. Based on our recent en banc decision in
Nichols v. Bowersox, Nos. 97-3639, 97-3640, 1999 WL ____ (8th Cir. Apr. 13, 1999)
(en banc), we reverse.

                                         I.
       Moore was convicted in 1990 of using a firearm in connection with a drug
trafficking offense, in violation of 18 U.S.C. § 924(c), and sentenced to 60 months'
imprisonment, to be served consecutively to a 360-month sentence imposed for the
underlying drug trafficking convictions. He filed a pro se § 2255 motion seeking to
dismiss the § 924(c) conviction in light of Bailey v. United States, 516 U.S. 137
(1995). The evidence is conflicting as to when Moore placed his motion to the
district court in the prison mail system, but he obtained a receipt from the United
States Postal Service dated April 24, 1997. Thus, Moore’s motion was placed in the
prison mail system at the latest on April 24, 1997. The district court found the motion
untimely under § 2255’s one-year time limit because the district court clerk’s office
did not receive Moore’s motion until April 25, 1997, after the time limit had expired.
See Moore v. United States, No. 97-0801-CV-W-8-P, at 4 (W.D. Mo. Oct. 20, 1997).
Moore appeals, arguing that the prison mailbox rule should apply to his § 2255
motion. Under that rule, Moore’s motion would be deemed filed when he placed it
in the prison mail system. The government concedes the merits of the Bailey issue.
(See Appellee’s Br. at 9.) If Moore's § 2255 motion was timely filed, Moore is
entitled to relief and will not have to serve the additional consecutive five years of
confinement for the concededly invalid § 924(c) conviction.

                                          II.

      We review de novo a district court’s dismissal of a § 2255 motion. See
Swedzinski v. United States, 160 F.3d 498, 500 (8th Cir. 1998). Section 2255 contains
a one-year time limit for filing motions under that section.1 This provision became


      1
       Section 2255 provides in pertinent part:

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

                                          2
 effective April 24, 1996, with the enactment of the Antiterrorism and Effective Death
 Penalty Act of 1996 (AEDPA), Pub. L. 104-132, Title I, § 105, 110 Stat. 1220. Federal
 defendants whose convictions became final before the enactment of the AEDPA have
 been given a one-year grace period from its effective date to file their § 2255 motions.
 See Paige v. United States, No. 98-1271, 1999 WL 147982, at *1 (8th Cir. Mar. 3,
 1999). Though the circuits are in agreement that the bright line rule of one year is an
 appropriate grace period for filing either a § 2254 petition or a § 2255 motion, they are
 split regarding the specific date that the one-year grace period ends--either April 23 or
 April 24, 1997. See Nichols v. Bowersox, Nos. 97-3639, 97-3640, slip op. at 9-10,
 1999 WL ____, at * __ (collecting cases).

      The two circuits that have chosen April 24, 1997, as the final date of the AEDPA
grace period are the only two that have specifically addressed how to calculate the
ending date of the time period. See Flanagan v. Johnson, 154 F.3d 196, 200-02 (5th Cir.
1998) (§ 2254 case); Mickens v. United States, 148 F.3d 145, 148 (2d Cir. 1998) (§
2255 case). Both circuits relied on Fed. R. Civ. P. 6(a),2 which provides that "[i]n


        (1) the date on which the judgment of conviction becomes final;
         (2) the date on which the impediment to making a motion created by
       governmental action in violation of the Constitution or laws of the
       United States is removed, if the movant was prevented from making a
       motion by such governmental action;
        (3) the date on which the right asserted was initially recognized by the
       Supreme Court, if that right has been newly recognized by the Supreme
       Court and made retroactively applicable to cases on collateral review;
       or
        (4) the date on which the facts supporting the claim or claims presented
       could have been discovered through the exercise of due diligence.

       The Federal Rules of Civil Procedure apply to cases under § 2254 and § 2255
       2


 because they are civil actions. See Fed. R. Civ. P. 81(a)(2); Rule 11, Rules

                                            3
computing any period of time prescribed or allowed . . . by any applicable statute, the
day of the act, event, or default from which the designated period of time begins to run
shall not be included." The Second and Fifth Circuits concluded that the effective date
of the AEDPA, April 24, 1996, is thus not included in calculating the one-year grace
period, which therefore ends on April 24, 1997, rather than April 23, 1997. See
Flanagan, 154 F.3d at 202; Mickens, 148 F.3d at 148.

      As noted by the court in Flanagan, “Rule 6(a) is a general statutory rule.” 154
F.3d at 201. The court found that one of the purposes for extending the one-year grace
period to prisoners whose convictions were final before the enactment of the AEDPA
was to give effect to the parties' reliance interests. Because the Fifth Circuit had
consistently applied Rule 6(a) to compute other federal statutory time limits, applying
Rule 6(a) in the § 2254 context furthered those interests. See id. The Second Circuit
applied Rule 6(a) with little discussion. See Mickens, 148 F.3d at 148.

       We have not used Rule 6(a) to calculate statutory time limits as regularly as has
the Fifth Circuit. See, e.g., Mattson v. U.S. West Communications, Inc., 967 F.2d 259,
261-62 (8th Cir. 1992) (refusing to apply Rule 6(a) to the Fair Debt Collection Practices
Act (FDCPA), 15 U.S.C. § 1692-1692o (1994)). We declined to apply Rule 6(a) in
Mattson because the statute of limitations in the FDCPA was jurisdictional, and Fed. R.
Civ. P. 82 prevents the use of the Rules of Civil Procedure to extend the jurisdiction of
district courts. See id. at 260, 262. Thus, before determining whether we should apply
Rule 6(a) to the one-year time limit in § 2255, we must first determine whether that time
limit is jurisdictional.

      This is an issue of first impression in this circuit. However, we are guided by the
thorough analyses of the Third and Ninth Circuits, which held that the one-year time


 Governing § 2254 Cases; Rule 12, Rules Governing § 2255 Cases.

                                           4
limit under § 2244(d)(1) applicable to § 2254 petitions is a statute of limitation rather
than a jurisdictional bar, and thus subject to equitable tolling. See Miller v. New Jersey
State Dep't of Corrections, 145 F.3d 616, 618 (3d Cir. 1998); Calderon v. United States
Dist. Ct., 128 F.3d 1283, 1289 (9th Cir. 1997), overruled on other grounds, 163 F.3d
530, 535 (9th Cir. 1998) (en banc) (approving of prior panel's holding that § 2244(d)(1)
was subject to equitable tolling). The Third Circuit recently extended its holding in
Miller to conclude that the one-year time limit in § 2255 is likewise not jurisdictional.
See Kapral v. United States, 166 F.3d 565, 567 (3d Cir. 1999).

       The Third Circuit considered Congress’s intent, as reflected in the statute's
language, purpose, and legislative history, to determine that the time limit was intended
to be a period of limitations, subject to equitable tolling, rather than a jurisdictional bar.
See Miller, 145 F.3d at 618-19. Courts have used the same factors to make this
distinction in other areas of law. See, e.g., Zipes v. Trans World Airlines, Inc., 455 U.S.
385, 393-94 (1982) (holding that the timely filing of an EEOC charge is not a
jurisdictional prerequisite to bringing a Title VII action where the jurisdictional section
of the statute did not limit jurisdiction to timely filed complaints; the time limit was in
a separate section of the statute; and the sparse legislative history discussed the time
limit as a period of limitations). Cf. Mattson, 967 F.2d at 260 (discussing the time limit
in the FDCPA, which was contained within the jurisdictional section of the statute). The
factors that the Third Circuit used to conclude that the time limit contained in §
2244(d)(1) is not jurisdictional, see Miller, 145 F.3d at 618, lead to the same conclusion
when applied to the time limit in § 2255.

       Section 2255 refers to the time limit as a “period of limitation” and as a
"limitation period." The time limit contained within § 2255 does not purport to limit the
jurisdiction of the district courts. Finally, the time limits contained in § 2255 and §
2244(d)(1) use identical language, indicating that Congress intended to treat them the



                                              5
same. Following the well-reasoned opinions of the Third and Ninth Circuits, we hold
that the one-year time limit for filing § 2255 motions is a statute of limitation and not
a jurisdictional bar. Thus, we are not constrained by the holding in Mattson in applying
Rule 6(a) to the § 2255 grace period.

       Prior to enactment of the AEDPA, federal prisoners could collaterally attack their
convictions using § 2255 "at any time." See 28 U.S.C. § 2255 (1994). The AEDPA
changed that right overnight, limiting the time period for filing § 2255 motions to one
year from various triggering events. Federal prisoners whose convictions were final,
and to whom none of the other triggering events applied, were suddenly without
recourse. We recently joined the other circuits that have addressed this question in
holding that a one-year grace period provides a reasonable time period to avoid the
unjust result that would follow the application of the AEDPA's one-year time limit on
preexisting causes of action. See Paige, 1999 WL 147982, at *1; United States v.
Craycraft, 167 F.3d 451, 456 (8th Cir. 1999). Congress enacted the AEDPA in part “to
curb the abuse of the writ of habeas corpus.” See Miller, 145 F.3d at 618 (citing H.R.
Conf. Rep. No. 104-518 at 111 (1996)). We agree with Flanagan that choosing April
24 over April 23 will not hinder this purpose. See Flanagan, 154 F.3d at 201. Further,
Rule 6(a) provides a reasonable basis for determining the appropriate ending date of the
grace period. See Mattson, 967 F.2d at 262 (McMillian, J., dissenting) (noting the wide
acceptance of the "modern doctrine" under which federal statutes of limitations are
calculated pursuant to Rule 6(a)); McDuffee v. United States, 769 F.2d 492, 494 (8th
Cir. 1985) (citing with approval other courts that have applied Rule 6(a) to federal
statutes of limitations).

     A panel of this court recently held that an untimely amendment to a § 2255
motion was time barred and did not relate back to the original timely filed § 2255
motion under Fed. R. Civ. P. 15(c)(2). See Craycraft, 167 F.3d at 456-57. The federal



                                           6
prisoner in that case had filed two amendments, one on April 24, 1997, and another on
May 30, 1997. The panel noted that “[i]t is this second amendment which the
Government asserts is time barred.” Id. at 456. The court went on to “join the majority
of circuits in holding that § 2255’s one-year time limit did not begin to run prior to April
24, 1996.” Id. It is unclear from the opinion whether the panel’s holding, that the
amendment did not relate back to the original motion and thus was untimely, concerns
both amendments or only the second amendment dated May 30, 1997. Because the
panel did not discuss or specify the appropriate ending date of the one-year time limit
as being either April 23 or April 24, 1997, we do not view the opinion as establishing
binding precedent on that issue.

       Following the Second and Fifth Circuits, we now determine that April 24, 1997,
is the final date for filing a motion within § 2255's one-year grace period. Thus, our
disposition of this case is relatively straightforward. Under the prison mailbox rule, a
notice of appeal is deemed timely filed when an inmate deposits the notice in the prison
mail system prior to the expiration of the filing deadline. See Houston v. Lack, 487 U.S.
266, 270 (1988); Fed. R. App. P. 25(a)(2)(C). We have recently held that the prison
mailbox rule applies to § 2254 motions. See Nichols, slip op. at 17-18. We see no
reason to draw a distinction between § 2254 and § 2255 with regard to the applicability
of the prison mailbox rule. Cf. Mickens, 148 F.3d at 148 (finding no reason not to give
federal prisoners the same one-year grace period under the AEDPA as extended to state
prisoners); Burns v. Morton, 134 F.3d 109, 113 (3d Cir. 1998) (applying Houston v.
Lack to pro se § 2255 motions). We now hold that the prison mailbox rule applies to
pro se § 2255 motions. Thus, Moore's § 2255 motion, placed in the prison mail system
no later than April 24, 1997, was timely.

      Our final concern involves Moore's sentence on the underlying drug trafficking
convictions. Moore argues that if we vacate his § 924(c) conviction, the sentence on



                                             7
his underlying drug trafficking convictions should be left untouched. He also asks for
a new trial on the drug trafficking counts. As Moore concedes, this court has already
addressed, and rejected, his constitutional claims. See Gardiner v. United States, 114
F.3d 734, 736 (8th Cir.), cert. denied, 118 S. Ct. 318 (1997); United States v. Harrison,
113 F.3d 135, 138 (8th Cir. 1997). Moore's preconceived concerns of vindictiveness do
not allow us to ignore our prior binding precedent, which we lack the authority to
reconsider. See United States v. Wright, 22 F.3d 787, 788 (8th Cir. 1994). The § 924(c)
conviction precluded the district court from any consideration of the two-level
enhancement for possession of firearms in relation to drug trafficking offenses. See
United States Sentencing Guidelines § 2D1.1(b)(1) and § 3D1.1 comment. (n.1). To
leave the underlying sentence untouched "would result in periods of custody based on
an erroneous application of the Sentencing Guidelines." Gardiner, 114 F.3d at 736. If
the district court on remand finds the two-level enhancement to be appropriate and
resentences Moore accordingly, and if Moore thinks his new sentence is a result of
vindictiveness, he may appeal that issue then. Moore is not entitled to a new trial on the
drug counts.

                                           III.

       For the foregoing reasons, we reverse the district court's dismissal of Moore's §
2255 motion as untimely, and remand the case to the district court for entry of an order
which vacates Moore's conviction and sentence on the § 924(c) count. We also remand
for resentencing on Moore's underlying drug trafficking convictions consistent with this
opinion. That is, we remand for the limited purpose of the district court's consideration
of USSG § 2D1.1(b)(1) with respect to Moore's existing drug trafficking convictions
and sentences.




                                            8
A true copy.

      Attest:

               CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                9
