           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206                     2    Sanchez-Castellano v. United States          No. 02-5081
        ELECTRONIC CITATION: 2004 FED App. 0042P (6th Cir.)
                    File Name: 04a0042p.06                                                 _________________
                                                                                                COUNSEL
UNITED STATES COURT OF APPEALS
                                                                       ARGUED: Robert C. Brooks, Memphis, Tennessee, for
                  FOR THE SIXTH CIRCUIT                                Appellant. Timothy R. DiScenza, ASSISTANT UNITED
                    _________________                                  STATES ATTORNEY, Memphis, Tennessee, for Appellee.
                                                                       ON BRIEF: Robert C. Brooks, Memphis, Tennessee, for
 MANUEL SANCHEZ-                 X                                     Appellant. Timothy R. DiScenza, ASSISTANT UNITED
 CASTELLANO,                      -                                    STATES ATTORNEY, Memphis, Tennessee, for Appellee.
         Petitioner-Appellant, -                                         ROGERS, J., delivered the opinion of the court, in which
                                  -  No. 02-5081
                                  -                                    COOK, J., joined. COHN, D. J. (pp. 9-10), delivered a
           v.                      >                                   separate dissenting opinion.
                                  ,
                                  -                                                        _________________
 UNITED STATES OF AMERICA , -
         Respondent-Appellee. -                                                                OPINION
                                  -                                                        _________________
                                 N
      Appeal from the United States District Court                       ROGERS, Circuit Judge. Appellant Manuel Sanchez-
   for the Western District of Tennessee at Memphis.                   Castellano appeals the denial for untimeliness of his motion
      Nos. 99-02510; 91-20047—Julia S. Gibbons,                        to vacate his sentence under 28 U.S.C. § 2255. The issue
                     District Judge.                                   presented in his appeal is whether, for a federal defendant
                                                                       who did not seek a direct appeal, the one-year statute of
                   Argued: December 9, 2003                            limitations for § 2255 cases starts ten days or forty days after
                                                                       entry of the judgment of conviction. The time for filing a
             Decided and Filed: February 9, 2004                       direct appeal is ten days after entry of judgment, but pursuant
                                                                       to Federal Rule of Appellate Procedure 4(b)(4) a federal
  Before: ROGERS and COOK, Circuit Judges; COHN,                       defendant can seek an extension of time—for excusable
                  District Judge.*                                     neglect or good cause—up to the fortieth day after entry of
                                                                       judgment. Sanchez-Castellano maintains that the judgment
                                                                       did not become final until the last possible opportunity to
                                                                       seek review of his sentence had passed. He urges us to find
                                                                       that Rule 4(b)(4) provided an existing avenue for relief after
                                                                       the ten-day filing deadline had passed, and that therefore the
                                                                       judgment in his case did not become final until forty days
                                                                       after it was entered. Because we reject this statutory
    *
     The Honorab le Avern Cohn, United States District Judge for the   interpretation as an unwarranted across-the-board extension
Eastern District of Michigan, sitting by designation.

                                 1
No. 02-5081           Sanchez-Castellano v. United States                3    4       Sanchez-Castellano v. United States               No. 02-5081

of the statute of limitations for § 2255 motions, we affirm the               attorney was unsure as to whether Sanchez-Castellano “was
judgment of the district court.                                               being sentenced correctly under the guidelines.” Sanchez-
                                                                              Castellano’s newly appointed counsel supplemented the
   In February 1991, Sanchez-Castellano was indicted on one                   § 2255 motion, adding a claim that Sanchez-Castellano’s
count of conspiracy to possess 1600 kilograms of cocaine                      sentence violated Apprendi v. New Jersey, 530 U.S. 466
with intent to distribute and one count of possession of 351                  (2000).
kilograms of cocaine with intent to distribute. Sanchez-
Castellano succeeded in evading arrest until January 1995.                      The district court, however, concluded that Sanchez-
He subsequently escaped from custody and eluded law                           Castellano failed to file his § 2255 motion on time. As
enforcement officers for another two years. After he was                      Sanchez-Castellano’s sentence did not seek direct appeal of
returned to custody, Sanchez-Castellano and the Government                    his sentence, the judgment of conviction became final,
reached a plea agreement, pursuant to which he pled guilty to                 according to the district court, on May 26, 1998. The district
the conspiracy count and to one count of escape. The district                 court also noted, however, that Sanchez-Castellano’s motion
court imposed a sentence of 292 months imprisonment and                       “landed in between two possible finality dates created by Fed.
five years supervised release and entered the judgment on                     R. App. P. 4(b)”—the ten day period created by Rule 4(b)(1)
May 13, 1998.1 Under Fed. R. App. P. 4(b)(1)(A), Sanchez-                     and the forty day period created by the addition of an
Castellano had until May 26, 1998, to file a notice of appeal                 extension for excusable neglect under Rule 4(b)(4). The
with the district court.2 Sanchez-Castellano did not appeal,                  district court resolved this question in favor of the ten days:
nor did he move for an extension of time to appeal pursuant                   “Under a straightforward application of § 2255, defendant’s
to Fed. R. App. P. 4(b)(4).                                                   original motion is untimely and barred by the statute of
                                                                              limitations for filing a motion under § 2255.” The district
   Sanchez-Castellano is deemed to have filed his § 2255                      court also found that there was no basis for an equitable
motion on June 6, 1999, when he presented it to prison                        tolling of the statute of limitations.
authorities. See Houston v. Lack, 487 U.S. 266, 270 (1988).
His motion raised three grounds for vacating his sentence.                       The district court further indicated how it would have
First, he alleged that his attorney promised to file a direct                 decided the merits of Sanchez-Castellano’s claims, had the
appeal but failed to do so. Second, he claimed that his                       § 2255 motion been filed on time. On the basis of conflicting
attorney threatened to withdraw if Sanchez-Castellano did not                 testimony,3 the district court found on the preponderance of
plead guilty and that the attorney assured him that he would                  the evidence that Sanchez-Castellano did not direct his lawyer
only be sentenced to ten to twelve years if he took the plea                  to file an appeal. Also upon consideration of the credibility
agreement. Third, Sanchez-Castellano maintained that his                      of witnesses before it, the district court “found the record
                                                                              devoid of any proof that [Sanchez-Castellano] was coerced
    1
      This matter was before Judge Jerome T urner during the guilty plea
and sentencing, but was transferred to Judge Julia Sm ith Gib bons prior to       3
                                                                                    The district co urt held an evidentiary hearing on the § 2255 motion
adjudication of the §2255 motion.                                             to determine whether the statute of limitations period should be tolled by
    2
                                                                              trial counsel’s alleged disregard of instructions to appeal. On the
     The ten-day perio d following M ay 13, 199 8, end ed on M ay 23, a       possibility that the district court would ultimately determine that the
Saturday. The following Monday, M ay 25, 199 8, was a federal holid ay.       § 2255 motion was timely (it did not), the court also permitted testimony
See Fed. R. Ap p. Proc. 2 6(a).                                               on the other issues.
No. 02-5081           Sanchez-Castellano v. United States                5    6     Sanchez-Castellano v. United States          No. 02-5081

into pleading guilty.” The district court further concluded                   final upon conclusion of direct review. See United States v.
that Sanchez-Castellano’s Apprendi claim was without merit                    Cottage, 307 F.3d 494, 498 (6th Cir. 2002). When a federal
because the sentencing judge had not “determined an amount                    criminal defendant takes a direct appeal to the court of
of drugs or any other sentencing factor that produced a                       appeals, his judgment of conviction becomes final for § 2255
sentence beyond the base maximum penalty contemplated by                      purposes upon the expiration of the 90-day period in which
the offense of conviction”; the sentencing judge moreover had                 the defendant could have petitioned for certiorari to the
“not relied on any fact outside the plea agreement to                         Supreme Court, even when no certiorari petition has been
determine drug quantity at sentencing.”                                       filed. Clay v. United States, 537 U.S. 522, 532 (2003). By
                                                                              parity of reasoning, when a federal criminal defendant does
  The district court denied a certificate of appealability. This              not appeal to the court of appeals, the judgment becomes final
court granted a certificate of appealability on the issue of                  upon the expiration of the period in which the defendant
whether Sanchez-Castellano’s § 2255 motion was timely filed                   could have appealed to the court of appeals, even when no
within the applicable one-year limitations period.                            notice of appeal was filed. In most cases, that period is ten
                                                                              days, pursuant to Fed. R. App. P. 4(b)(1). However, in those
  Although reasonable judges might differ, the language of                    cases where “excusable neglect or good cause” is shown, the
§ 2255 appears clearly to require that, for statute of                        district court may extend the appeal time an additional thirty
limitations purposes, an unappealed district court judgment of                days. Fed. R. App. P. 4(b)(4).
conviction becomes “final” ten days after the entry of
judgment, at least where the defendant has not actually sought                   There are three ways in which the possibility of a Rule
an extension of appeal time for good cause or excusable                       4(b)(4) extension could affect a determination of finality
neglect.4                                                                     under § 2255. First, the ten-day rule could be uniformly
                                                                              applied, regardless of whether or not a Rule 4(b)(4) motion
   The language of § 2255 provides that, except in                            has been made or granted. Second, the ten-day rule could be
circumstances not present or asserted here, the one-year                      applied except in those cases in which an extension is sought
statute of limitations for § 2255 motions begins to run on “the               and granted within the forty days, in which case an
date on which the judgment of conviction becomes final.” 28                   unappealed judgment of conviction would be final at the
U.S.C. § 2255. As a general matter, convictions become                        expiration of the extended time. Third, a forty-day rule could
                                                                              be uniformly applied, regardless of whether or not a Rule
                                                                              4(b)(4) motion has been made or granted. It is not necessary
    4
      On this purely legal issue we have found no case law to guide us.       to decide between the first and second interpretations in the
In an unrepo rted d ecision , the Fourth Circuit held that a § 2255 motion    instant case. This is because Sanchez-Castellano did not seek
was untimely even giving de fendant the benefit of the ten-day appeal         or obtain an extension. In order to rule for Sanchez-
period plus the thirty-day excusab le neglect period in F ed. R . App. P .    Castellano, we must accept the third interpretation, and that
4(b). United States v. Walker, No. 99-684 7, 1999 U .S.App. LEX IS
22478, at *2 (4th Cir. Aug. 31, 1999). T he opinion thus mere ly              is what Sanchez-Castellano urges upon us on this appeal. The
acknowledged the possibility of the forty-day argume nt. The parties cite     argument however turns the exception into the rule, and is
no other cases on point. The district court cited two cases applying a ten-   ultimately unpersuasive.
day rule where § 2255 would have been late under a forty-day rule as
well. United States v. Noble, No. 97-6354, 1998 U.S. App. LEXIS 18370           To adopt the third interpretation would delay the start of the
(10th Cir. Aug. 10 , 199 8); Un ited States v. Concepcion, No. 98-2372,
1999 U .S. Dist. LEX IS 5125, at *6 (E.D. Pa. Ap r. 19, 1999).
                                                                              limitations period until thirty days later than finality actually
No. 02-5081           Sanchez-Castellano v. United States                 7    8       Sanchez-Castellano v. United States                 No. 02-5081

occurs in most cases. This is not consistent with the                          there has been good cause or excusable neglect. While it
congressional intent to set a one-year, as opposed to a                        makes sense to toll the limitations period so that a defendant
thirteen-month, statute of limitations. Moreover, there are no                 may file a petition that he is legally entitled to file, it does not
equitable considerations militating in favor of the forty-day                  make sense to toll it so that he may seek permission from the
interpretation. Under all three possible interpretations the                   district court to file a late notice for exceptional reasons.
determination of when the judgment was final is made, for
statute of limitations purposes, retrospectively and long after                  Moreover, under Sanchez-Castellano’s construction, all
the date actually occurred. We must merely determine which                     defendants would be entitled to this extended period of time,
date corresponds best with the statutory language. At least in                 regardless of whether the district court found excusable
the absence of an actual district court determination of good                  neglect. Suppose he filed a motion to extend the filing
cause or excusable neglect, that date is ten days after the entry              deadline under Rule 4(b)(4) on May 30, 1998, seventeen days
of judgment.5                                                                  after the entry of the judgment. Then, three days later, the
                                                                               district court denied the motion, finding no evidence of good
  Sanchez-Castellano contends that, because he had the                         cause or excusable neglect. If Sanchez-Castellano is correct,
opportunity to seek Rule 4(b)(4) relief, the judgment against                  for purposes of the § 2255 limitations period, the judgment in
him should have been considered pending during the time that                   his case would become final twenty days after his last avenue
he could have, but did not, seek relief. He compares this to                   of direct review had closed.6 It is unlikely that Congress
the practice of considering a judgment affirmed on appeal as                   intended such an outcome.
pending until the time to seek a writ of certiorari in the
Supreme Court has expired. Sanchez-Castellano points out                         For the foregoing reasons, an unappealed federal criminal
that a conviction is not final for § 2255 purposes until the                   judgment becomes final ten days after it is entered, for
time for seeking certiorari has expired, when the defendant                    purposes of the § 2255 statute of limitations, at least where
does not actually seek certiorari.                                             there has been no district court extension of appeal time for
                                                                               good cause or excusable neglect. The judgment of the district
   The time period for seeking certiorari, however, is more                    court is AFFIRMED.
accurately compared with the standard ten day filing period
for a direct appeal, and not the extension for excusable
neglect. The ten-day period for filing an appeal and the
ninety-day period for filing a certiorari petition are both
periods during which the defendant is permitted to file as of
right. The thirty-day extension period, in contrast, is only
granted upon request to the district court, and then only on a
showing that most litigants presumably cannot make—that

                                                                                   6
    5
                                                                                      The dissent maintains that this will not be the case b ecause finality
       W e do not decide the question of whether the jud gment against a       will come for defendants seeking relief at the time the district court rules
defendant who applie s for, and receives, a Rule 4(b)(4) extension of the      on the motion. Such a rule, however, would benefit those defendants who
filing deadline, but fails ultimately to seek a direct appeal, becomes final   fail to seek an extension under Rule 4 (b)(4 ) by giving them the full forty
forty days after entry.                                                        days while shortchanging tho se defendants who act diligently.
No. 02-5081        Sanchez-Castellano v. United States        9    10   Sanchez-Castellano v. United States          No. 02-5081

                      ______________                               Castellano had filed a motion to extend time to file an appeal
                                                                   under Rule 4(b)(4) seventeen days after the entry of judgment
                         DISSENT                                   of conviction and the district court denied it three days later,
                      ______________                               then “the judgment would become final twenty days after his
                                                                   last avenue of direct review had closed.” This is not entirely
   COHN, District Judge, dissenting. Because I believe that        correct. The judgment would not be final twenty days after
the statute of limitations should start to run forty days after    the last avenue of direct review had closed; rather, it would be
the entry of the judgment of conviction, I respectfully dissent.   final when the last avenue for direct review had closed, i.e.
I am convinced that the better view is to include the thirty-day   when the district court denied the motion. At that point, there
excusable neglect period in determining when Sanchez-              is no longer an available avenue for seeking an appeal. In any
Castellano’s conviction became final since he did not file a       event, this issue is not before us. In this case, Sanchez-
notice of appeal. Whether or not a motion for extension of         Castellano’s avenue for appeal was foreclosed, and
time would have been be granted is irrelevant in this case.        consequently the judgment of conviction became “final,”
What is relevant is that an extension of time is available.        when the forty days expired.
Only when the time for seeking an appeal has been exhausted
can the conviction be said to be “final” and the statute of
limitations begin to run. The fact that Sanchez-Castellano did
not file a motion for an extension of time is also irrelevant.
What is also relevant is the fact that an avenue for appeal was
still available to him for forty days after the judgment was
entered. 28 U.S.C. § 2255 simply states that the statute of
limitations begins to run on “the date on which the judgment
of conviction becomes final.” The statute offers no guidance
as to the meaning of “final.” Since the statute is silent, the
choice of a time period is left to the Court. I see no good
reason not to accept Sanchez-Castellano’s view that the forty-
day time period is the appropriate one. No purpose is to be
served by limiting the time period to ten days, except to limit
the number of habeas petitions which are considered on the
merits. Under the circumstances here and in like cases, I
believe that “final” should be interpreted to mean when the
opportunity for further review has completely expired. This
does not occur until forty days after the judgment of
conviction is entered.
  Nor do I believe that adopting this approach will, as the
majority suggests, entitle all defendants “to this extended
period of time, regardless of whether the district court found
excusable neglect.” The majority says that if Sanchez-
