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

No. 07-1724
KENDRICK D. LATHAM,
                                            Petitioner-Appellant,
                               v.

UNITED STATES OF AMERICA,
                                            Respondent-Appellee.
                        ____________
           Appeal from the United States District Court
               for the Southern District of Illinois.
           No. 04-cv-4086-JPG—J. Phil Gilbert, Judge.
                        ____________
        ARGUED MAY 13, 2008—DECIDED MAY 29, 2008
                        ____________


  Before EASTERBROOK, Chief Judge, and KANNE and TINDER,
Circuit Judges.
  EASTERBROOK, Chief Judge. A federal prisoner may
seek collateral review within one year of “the date on
which the judgment of conviction becomes final”. 28
U.S.C. §2255(f)(1). If a convicted person files, and then
dismisses, an appeal from a conviction, what is the date
of finality? When the appeal is dismissed, or that date
plus 90 days to file a petition for certiorari? See 28 U.S.C.
§1254(1); S. Ct. Rule 13.1. The Supreme Court held in
Clay v. United States, 537 U.S. 522 (2003), that a federal
conviction becomes “final” with the expiration of time to
2                                                No. 07-1724

file a petition for a writ of certiorari (or, if certiorari is
sought and denied, on the date of denial). The district
court concluded that a defendant who dismisses his
appeal is not entitled to seek certiorari, so that the time
runs from the date of dismissal. 2007 U.S. Dist. LEXIS 2897
(S.D. Ill. Jan. 11, 2007).
  Kendrick Latham filed a notice of appeal from his
conviction (for distributing cocaine) on November 14,
2002. His lawyer filed a motion under Fed. R. App. P. 42(b)
to dismiss the appeal, representing that Latham agreed
to this step; the motion was accompanied by Latham’s
written consent. This court’s clerk dismissed the appeal
on May 1, 2003, and the mandate issued immediately.
Within two weeks, however, Latham filed a motion to
reinstate the appeal; he asserted that his lawyer had
misled him about the consequences of dismissal. That
motion was denied by a motions panel on June 9, 2003,
and a motion to reconsider that decision was returned
on June 25, at the direction of the motions judge, because
the rules do not allow successive post-decision motions.
Latham commenced his collateral attack on May 7, 2004,
the district court found. The court held this untimely
because the year had been running since May 1, 2003. A
judge of this court issued a certificate of appealability
after the district judge declined to do so. See Slack v.
McDaniel, 529 U.S. 473, 484–85 (2000) (certificate of
appealability may issue on a substantial procedural
question, if the case also presents a substantial constitu-
tional question).
  Latham’s motion to reinstate the appeal was filed
within the time to seek rehearing, see Fed. R. App. P.
40(a)(1), and though it was not captioned “petition for
rehearing” it sought a change in the judgment. That was
No. 07-1724                                                3

enough to put off “finality” until this court had acted. See
United States v. Dieter, 429 U.S. 6 (1976). The district
judge believed that the issuance of mandate on May 1
prevented Latham from seeking reconsideration, but
the time for rehearing under Rule 40(a)(1)—and for that
matter the time to request certiorari, see S. Ct. Rule
13.3—runs from the date of decision and is unrelated
to the mandate. If the court grants reconsideration, the
mandate can be recalled and the case reinstated. Latham’s
collateral attack was therefore timely.
   What’s more, it would have been timely even had he
not sought the appeal’s reinstatement. The district court
assumed that §1254, which allows the Supreme Court
to review judgments by certiorari, works like 28 U.S.C.
§1291, which deals with appellate review of district
courts’ judgments. Section 1291 allows for review only
by persons aggrieved by final decisions. Prevailing
litigants—that is, those who received from the district
court whatever relief they requested—cannot appeal
under §1291. The district court treated Latham as a pre-
vailing party (he asked for the appeal to be dismissed,
after all) who therefore could not seek review by the
Supreme Court.
  Section 1254, however, allows “any” party, including a
prevailing party, to petition for certiorari. See Eugene
Gressman, Kenneth S. Geller, Stephen M. Shapiro, Timothy
S. Bishop & Edward A. Hartnett, Supreme Court Practice
86–89 (9th ed. 2007). It also allows review whether or not
a court of appeals has issued a final decision. Id. at 81–86.
All that is necessary is that a case be “in” the court of
appeals. A notice of appeal from a final decision puts
the case in the court of appeals. Hohn v. United States,
524 U.S. 236 (1998). That some later event—such as the
4                                             No. 07-1724

issuance of mandate or the denial of a certificate of
appealability—puts the case “out” again does not defeat
the Supreme Court’s authority. It can issue a writ of
certiorari to decide whether the case should have re-
mained in the court of appeals rather than being ejected.
  The United States reminds us that waivers of appeal
are enforceable. See United States v. Wenger, 58 F.3d 280
(7th Cir. 1995). But our practice concerning waivers of
appeal supports Latham rather than the prosecutor. A
defendant who forswears appellate review as part of a
plea bargain remains entitled to file a notice of appeal.
Although that appeal is doomed unless the guilty plea
is involuntary—for we held in Wenger that the plea and
the waiver stand or fall together—the possibility that
the defendant will be able to have the plea vitiated
permits at least the preliminary stages of an appeal. (This
is an application of the principle that every court has
jurisdiction to determine its own jurisdiction.) If we
dismiss the appeal, the defendant is entitled to ask the
Supreme Court to review our judgment by writ of certio-
rari, and Clay will determine the date on which the con-
viction becomes “final”. What is true of a waiver exe-
cuted in the district court is true of a waiver executed in
the court of appeals. Latham was entitled to argue—to
us, and to the Supreme Court—that his appeal should
have been reinstated because his waiver was involun-
tary. So 90 days to seek certiorari is added to May 1,
2003, and the collateral attack is timely.
  The judgment of the district court is reversed, and the
case is remanded for decision on the merits.


                   USCA-02-C-0072—5-29-08
