                                             Filed:   November 16, 2001

                    UNITED STATES COURT OF APPEALS

                        FOR THE FOURTH CIRCUIT


                             No. 00-7427
                       (CR-96-72, CA-00-265-1)



United States of America,

                                                 Plaintiff - Appellee,

           versus


James Calvin Segers,

                                                Defendant - Appellant.



                              O R D E R



     The court amends its opinion filed November 5, 2001, as

follows:

     On the cover sheet, section 3, line 2 -- the line is corrected

to read “for the Middle District of North Carolina, at Winston-

Salem.”

                                          For the Court - By Direction




                                          /s/ Patricia S. Connor
                                                   Clerk
PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                             No. 00-7427

JAMES CALVIN SEGERS,
Defendant-Appellant.

Appeal from the United States District Court
for the Middle District of North Carolina, at Winston-Salem.
William L. Osteen, District Judge.
(CR-96-72, CA-00-265-1)

Argued: September 25, 2001

Decided: November 5, 2001

Before MOTZ and KING, Circuit Judges, and
HAMILTON, Senior Circuit Judge.

_________________________________________________________________

Certificate of appealability denied and appeal dismissed by published
opinion. Judge King wrote the opinion, in which Judge Motz and
Senior Judge Hamilton joined.

_________________________________________________________________

COUNSEL

ARGUED: James Phillip Griffin, Jr., NORTH CAROLINA PRIS-
ONER LEGAL SERVICES, INC., Raleigh, North Carolina, for
Appellant. Michael Francis Joseph, Assistant United States Attorney,
Greensboro, North Carolina, for Appellee. ON BRIEF: Benjamin H.
White, Jr., United States Attorney, Greensboro, North Carolina, for
Appellee.
OPINION

KING, Circuit Judge:

Appellant James Calvin Segers challenges the district court's dis-
missal of his 28 U.S.C. § 2255 motion as untimely. Segers contends
that his § 2255 motion was timely filed, asserting that the applicable
one-year period of limitation did not commence to run until January
25, 1999, when the Supreme Court denied his petition for rehearing
of the denial of his petition for certiorari. As explained below, we dis-
agree with Segers, and we conclude that the Court's denial of
Segers's petition for a writ of certiorari triggered the one-year period
of limitation in § 2255 ¶6 (1), thus rendering his § 2255 motion
untimely. We therefore decline to issue a certificate of appealability
and we dismiss his appeal.

I.

Following a jury trial in the Middle District of North Carolina,
Segers was convicted, on October 3, 1996, of conspiracy to possess
with intent to distribute cocaine, in violation of 21 U.S.C. § 846, and
of attempting to possess with intent to distribute cocaine, in violation
of 21 U.S.C. § 841. He was then sentenced to 262 months' imprison-
ment, to be followed by eight years of supervised release. On July 20,
1998, we affirmed Segers's conviction by unpublished per curiam
opinion. United States v. Segers, 153 F.3d 724 (4th Cir. 1998). On
November 16, 1998, the Supreme Court denied his petition for a writ
of certiorari, Segers v. United States, 525 U.S. 1008 (1998), and on
January 25, 1999, it denied Segers's petition for rehearing of the
denial of certiorari. Segers v. United States, 525 U.S. 1129 (1999).

On January 20, 2000, more than one year after the Court's denial
of Segers's petition for certiorari, but less than one year after its
denial of his request for rehearing, Segers filed the pro se § 2255
motion underlying this appeal. The Government promptly moved to
dismiss his § 2255 motion as untimely, asserting that it was barred by
the one-year period of limitation established in § 2255 ¶6 (1).1
                                                               1 The
_________________________________________________________________

1 The period of limitation is set forth in the unnumbered sixth para-
graph of § 2255 and, in pertinent part, provides as follows:

                  2
Government maintained that the period of limitation began to run on
November 16, 1998, when the Court denied Segers's petition for cer-
tiorari, thus rendering his § 2255 motion, filed more than one year
later on January 20, 2000, untimely. Upon the recommendation of the
magistrate judge, the district court, on August 7, 2000, dismissed the
§ 2255 motion as untimely and declined to award Segers a certificate
of appealability. Segers v. United States, Order, No. 1:00CV265
(M.D.N.C. Aug. 7, 2000).

On appeal, Segers contends that his § 2255 motion was in fact
timely filed, maintaining that the one-year period of limitation did not
commence to run until January 25, 1999, when his petition for rehear-
ing of the denial of certiorari was denied by the Supreme Court. On
September 25, 2000, Segers filed a timely notice of appeal of the dis-
trict court's ruling, and again requested issuance of a certificate of
appealability. We possess jurisdiction over his appeal pursuant to 28
U.S.C. § 2253(a).

II.

We are presented in this appeal with a pure question of statutory
interpretation involving the period of limitation established by Con-
gress in § 2255 ¶6 (1). In this situation, our standard of review is ple-
nary; we review the district court's decision de novo. United States
v. Prescott, 221 F.3d 686, 687 (4th Cir. 2000).

III.

By the plain language of § 2255 ¶6 (1) the one-year period of limi-
tation for the filing of a motion to vacate, set aside, or correct a sen-
_________________________________________________________________

        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; [or]

        . ..

         (4) the date on which the facts supporting the claim or
        claims presented could have been discovered through the
        exercise of due diligence.

28 U.S.C. § 2255 ¶6.

                       3
tence runs from the date on which the prisoner's "judgment of
conviction becomes final." The statute, however, does not specifically
define or further explain how the phrase "the judgment of conviction
becomes final" is to be interpreted and applied, thus giving rise to the
question raised by Segers in this appeal.

Last year, in United States v. Torres, 211 F.3d 836 (4th Cir. 2000),
this court concluded that when a federal prisoner does not petition for
certiorari in the Supreme Court, his judgment of conviction becomes
final under § 2255 ¶6 (1) upon the issuance by a court of appeals of
the mandate contemplated by Rule 41 of the Federal Rules of Appel-
late Procedure.2  2 Writing for the court, Judge Williams explained that
"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." Torres, 211 F.3d at 839. In that instance, Tor-
res had not sought certiorari in the Supreme Court. We accordingly
had no reason to address the potential effect of a petition for certiorari
or, as in this situation, a petition for rehearing of the denial of certio-
rari, on the finality of a judgment of conviction under § 2255 ¶6 (1).

With respect to the question now raised by Segers, the Government
maintains that his contention is incorrect, and it emphasizes that the
provisions of Supreme Court Rule 16.3 are dispositive. That Rule,
entitled "Disposition of a Petition for a Writ of Certiorari," provides
that:
_________________________________________________________________

2 The mandate in a court of appeals is issued "7 days after the time to
file a petition for rehearing expires, or 7 days after entry of an order
denying a timely petition for panel rehearing expires, or 7 days after
entry of an order denying a timely petition for panel rehearing, rehearing
en banc, or motion for stay of mandate, whichever is later." Fed. R. App.
P. 41(b). The filing of a petition for rehearing in a court of appeals auto-
matically stays the mandate until the petition for rehearing is decided.
See Fed. R. App. P. 41(d)(1). As such, when a prisoner files a petition
for rehearing in a court of appeals, its mandate does not issue, and its
decision does not become final, until the petition for rehearing is denied.
Importantly, as explained infra, the filing in the Supreme Court of a peti-
tion for rehearing of the denial of a petition for certiorari has no effect
on the finality of the judgment of conviction.

                   4
        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 peti-
        tion for rehearing except by order of the Court or a Justice.

Sup. Ct. R. 16.3 (emphasis added). As this Rule provides, a petition
for rehearing of the denial of certiorari, unlike a petition for rehearing
in the court of appeals, does not automatically suspend "[t]he order
of denial" of a petition for certiorari. Indeed, in the absence of an
order of the Court or a Justice thereof, a petition for rehearing of the
denial of certiorari has no effect. Thus, as the Government correctly
posits, the denial of Segers's petition for a writ of certiorari consti-
tuted the final disposition of his case in the Supreme Court.

Although we have not previously addressed the question of when,
under § 2255 ¶6 (1), a judgment of conviction becomes final for a
prisoner who has petitioned for certiorari, the issue has been consid-
ered by certain of our sister circuits and they have each interpreted
Supreme Court Rule 16.3 as controlling. The courts of appeals to
address the issue have consistently concluded that a judgment of con-
viction becomes final under § 2255 ¶6 (1) when the Supreme Court
denies certiorari.

The first court of appeals to address this question was the Tenth
Circuit in United States v. Willis, 202 F.3d 1279 (10th Cir. 2000). In
that case, the defendant maintained that his judgment of conviction
did not become final until the time expired for him to petition the
Court for a rehearing of its denial of certiorari. In Willis, Judge Ebel
carefully focused on Supreme Court Rule 16.3, emphasizing the
Rule's last sentence, i.e., "[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." Id. at 1280 (quoting Sup. Ct. R. 16.3). Based on
Rule 16.3, he explained, in terms pertinent here, that:

        absent an actual suspension of an order denying certiorari by
        the Court or a Justice, a judgment of conviction is final for
        purposes of the one-year limitation period in § 2255 when
        the United States Supreme Court denies a petition for writ

                  5
        of certiorari after a direct appeal, regardless of whether a
        petition for rehearing from the denial of certiorari is filed.

Id. at 1280-81.

Thereafter, the Fifth Circuit, in United States v. Thomas, 203 F.3d
350 (5th Cir. 2000), saw fit to issue a certificate of appealability
solely to determine when a federal conviction becomes final for pur-
poses of § 2255 ¶6 (1). In Thomas, the two defendants filed their
§ 2255 motions one year and three days after the Court denied their
petitions for certiorari. In maintaining that their § 2255 motions were
timely, they contended that their judgments of conviction did not
become final until the court of appeals received notice from the
Supreme Court that their petitions for certiorari had been denied.
Alternatively, they claimed that their convictions did not become final
until the twenty-five day period prescribed by Supreme Court Rule 44
(for the filing of a petition for rehearing of the denial of certiorari)
had actually expired. In its Thomas decision, the Fifth Circuit rejected
both of these contentions. Relying on Rule 16.3, it concluded that
when a defendant petitions for certiorari, his judgment of conviction
"becomes final for purposes of the one year limitation period set forth
in § 2255(1) on the date that the Supreme Court denies the defen-
dant's petition for writ of certiorari on direct review." Id. at 356.

More recently, in Horton v. United States, 244 F.3d 546 (7th Cir.
2001), the Seventh Circuit was presented with an appeal of a dis-
missal of a § 2255 motion filed one year and two days after the
Supreme Court denied certiorari. Horton maintained that his § 2255
motion was timely filed because his judgment of conviction did not
become final until expiration of the twenty-five day period within
which he could petition for reconsideration of the denial of certiorari.
The Seventh Circuit, relying on Rule 16.3, rejected Horton's conten-
tion. It held that "a defendant's conviction becomes `final' under
§ 2255 P.6(1) when the Supreme Court denies the defendant's peti-
tion for writ of certiorari (absent a suspension order from the Court
or a Justice), irrespective of the opportunity to petition the Supreme
Court for rehearing." Id. at 551.

We have carefully considered Rule 16.3 and each of these authorities,3
                                                                     3
_________________________________________________________________

3 In addition to the decisions of the Tenth, Fifth, and Seventh Circuits,
the Eleventh Circuit, in a brief per curiam opinion, also recently con-

                   6
and we agree with our sister circuits.44 We accordingly hold that,
absent the issuance of a suspension order by the Court or a Justice
thereof, as contemplated by Rule 16.3, the judgment of conviction of
a prisoner who has petitioned for certiorari becomes final for purposes
of the one-year period of limitation in § 2255¶6 (1) when the
Supreme Court denies certiorari after a prisoner's direct appeal. Pur-
suant thereto, Segers's judgment of conviction became final on
November 16, 1998, when the Court denied his petition for a writ of
certiorari. Because Segers did not file his § 2255 motion until January
20, 2000, more than one year later, his § 2255 motion was untimely
and was properly dismissed.55
_________________________________________________________________

cluded that a prisoner's judgment of conviction becomes final when the
Supreme Court denies his petition for a writ of certiorari. See Washing-
ton v. United States, 243 F.3d 1299, 1300 (11th Cir. 2001).

4 Segers contends that his case is distinct from those addressed by our
sister circuits because, unlike the prisoners in those cases, he actually
filed a petition for rehearing from the denial of certiorari. While this fac-
tual distinction is accurate, we nonetheless view the decisions of our sis-
ter circuits to be of substantial assistance. They make clear that, under
Rule 16.3, the denial of a petition for certiorari renders a prisoner's case
final in the Supreme Court.

5 Segers also contends that the district court erred in dismissing his
§ 2255 motion without giving him the benefit of an extension for discov-
ery under § 2255 ¶6 (4). Pursuant to that sub-paragraph, the one-year
period of limitation also can begin to run on "the date on which the facts
supporting the claim or claims presented could have been discovered
through the exercise of due diligence." Segers claims that he discovered
new facts and procured affidavits that were not available within one year
of the Court's initial denial of certiorari. We agree with the district court
that his contentions are without merit, however, as his affidavits reveal
that he is related to two of the affiants and that the third was present at
the crime scene. By due diligence, Segers should have known of the exis-
tence of his own relatives and of a witness present at the crime scene,
and he has failed to explain why this information was unavailable until
three years after his conviction. As such, even under a most lenient stan-
dard of review, we will not disturb the district court's decision that
Segers failed to properly present a claim under § 2255 ¶6 (4).

                  7
IV.

For the foregoing reasons, we decline to award Segers a certificate
of appealability, and we dismiss his appeal.

CERTIFICATE OF APPEALABILITY DENIED
AND APPEAL DISMISSED

                  8
