           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                           March 5, 2008
                                     No. 06-51534
                                   Summary Calendar                   Charles R. Fulbruge III
                                                                              Clerk

UNITED STATES OF AMERICA

                                                  Plaintiff-Appellee

v.

CHARLES DOUGLAS MESSERVEY

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 5:06-CA-467
                                No. 5:98-CR-00155

Before KING, DAVIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
       Charles Douglas Messervey, federal prisoner # 88505-080, is appealing the
dismissal of his 28 U.S.C. § 2255 motion as time barred. The Government has
filed a motion to remand to the district court for reconsideration in light of the
intervening Supreme Court decision in Burton v. Stewart, 127 S. Ct. 793 (2007).
       Messervey was convicted following a jury trial of five counts of mail fraud
and two counts of money laundering and was sentenced to 220 months in prison
and ordered to pay fines and restitution. Messervey appealed, and the court

       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
                                  No. 06-51534

affirmed his conviction, but vacated the sentence imposed and remanded for
resentencing. Prior to resentencing, the Government applied for a turnover
order seeking to sell property seized from Messervey to cover his indebtedness.
The district court granted the Government’s application and denied Messervey’s
motion for return of his property. On June 2, 2005, Messervey was resentenced
to 125 months in prison, and he filed a timely notice of appeal from his
conviction and sentence and also from the turnover order. We affirmed the
district court’s judgment on May 24, 2006.
      On May 30, 2006, Messervey filed a 28 U.S.C. 2255 motion challenging
only his conviction, not his resentencing. Relying on Rainey v. Secretary for
Department of Corrections, 443 F.3d 1323 (11th Cir. 2006), the district court
dismissed the motion as untimely under the Antiterrorism and Effective Death
Penalty Act (AEDPA), finding that because Messervey had raised claims related
only to his original conviction, the limitations period ran from the date that the
original conviction became final and not from the date that the resentencing
became final.
      Section 2255 provides that the statute of limitations is calculated from “the
date on which the judgment of conviction becomes final.” However, it does not
define when a judgment of conviction becomes final for purposes of the limitation
period. See United States v. Thomas, 203 F.3d 350, 351-52 (5th Cir. 2000). This
court has not previously determined when a conviction becomes final for
limitation purposes under the AEDPA if the conviction is affirmed, but the case
is remanded for resentencing. However, subsequent to the district court’s
dismissal in this case, the Supreme Court provided guidance on this issue in
Burton.
      The issue in Burton was whether the petitioner’s habeas petition should
be dismissed as an unauthorized successive petition pursuant to 28 U.S.C.
§ 2244(b). 127 S. Ct. at 794. Burton was initially convicted and sentenced in
1994. Id. at 795. He was resentenced in 1998. Id. Burton filed his initial

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federal habeas petition while state court review of his sentence was pending, and
it was denied. Id. After his state sentencing challenge was rejected, he filed
another federal habeas petition in 2002, contesting the constitutionality of his
1998 sentence. Id. at 796. The district court denied the petition, but rejected the
State’s assertion that the petition was successive.       Id. The Ninth Circuit
affirmed. Id. However, the Supreme Court determined that the petition should
have been denied as successive. Id.
      The Court addressed the Antiterrorism and Effective Death Penalty Act
(AEDPA) limitations period in response to the petitioner’s argument that if he
had delayed filing his first petition until the state court had completed review
of his sentencing claims following the resentencing, his challenge to his
conviction in federal court may have been barred by the one-year limitation
period.   Id. at 798.   Burton rejected this argument, determining that the
limitation period did not begin to run until both the conviction and sentence
became final by the conclusion of direct review or the expiration of time for
seeking such review. Id. at 798-99.
      In Ferreira v. Sec’y, Dep’t of Corrections, 494 F.3d 1286, (11th Cir. 2007),
the Eleventh Circuit overruled its decision in Rainey and determined that the
one-year statute of limitations period . . . runs from the date the conviction
became final, regardless of when the petitioner’s corrected sentence became
final.” 494 F.3d at 1287-88, 1292-93. Relying on Burton, Ferreira held that the
limitations period begins to run on the date when both the conviction and
sentence the petitioner is serving becomes final. Id. at 1288.
      In light of Burton, we hold that in cases in which a defendant’s conviction
is affirmed on appeal but the case is remanded for resentencing, the defendant’s
conviction becomes final for limitations purposes under the AEDPA when the
both the conviction and sentence become final by the conclusion of direct review
or the expiration of time for seeking such review.


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                                  No. 06-51534

      Because Messervey filed his § 2255 motion within one year of the appeal
from the judgment on his resentencing becoming final, his motion was timely
filed. Therefore, the district court erred in dismissing the motion as time-barred.
The motion of the Government is GRANTED, the district court’s judgment is
VACATED, and the case is REMANDED for the consideration of Messervey’s
claims raised in his § 2255 motion. The Government’s alternative motion for an
extension of time to file a brief is DENIED as moot.




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