                                                                                                                           Opinions of the United
1999 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-2-1999

Kapral v. USA
Precedential or Non-Precedential:

Docket 97-5545




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Filed February 2, 1999

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

NO. 97-5545

MICHAEL KAPRAL,

       Appellant

v.

UNITED STATES OF AMERICA

On Appeal From the United States District Court
For the District of New Jersey
(D.C. Civ. No. 97-cv-2290)
District Judge: Hon. Alfred M. Wolin

Submitted Pursuant to Third Circuit LAR 34.1
June 25, 1998

Before: GREENBERG, ALITO and McKEE Circuit Judges.

(Filed February 2, 1999)

       Marcia G. Shein, Esq.
       National Legal Services, Inc.
       52 Executive Park South
       Suite 5203
       Atlanta, GA 30329

       Attorney for Appellant
       George S. Leone, Esq.
       Office of United States Attorney
       970 Broad Street
       Room 700
       Newark, NJ 07102

       Attorney for Appellee

OPINION OF THE COURT

McKee, Circuit Judge.

We are asked to decide when a criminal conviction
becomes "final" within the meaning of the limitations
provision of 28 U.S.C. S 2255. The district court ruled that
the period of limitations begins to run when a defendant
can no longer take a direct appeal as of right. For the
reasons that follow, we rule that a conviction does not
become "final" under S 2255 until expiration of the time
allowed for certiorari review by the Supreme Court.
Appellant Michael Kapral did not file a petition for
certiorari, but he filed his S 2255 motion within one year of
the date on which his time to seek certiorari review expired.
We hold that his filing was timely, and we will reverse and
remand for proceedings consistent with this opinion.

I. Background

Kapral pled guilty to income tax evasion, and conspiracy
to distribute and to possess with intent to distribute at
least 700 grams of methamphetamine. He was sentenced to
120 months of imprisonment and 8 years of supervised
release on May 25, 1995. We affirmed the judgment of
conviction on February 13, 1996. Kapral did notfile a
petition for a writ of certiorari in the United States Supreme
Court.

On April 29, 1997, Kapral filed a counseled motion under
S 2255 in which he claimed that his prior counsel provided
ineffective assistance and that the resulting plea was
therefore not a knowing and intelligent one. The district
court did not reach the merits of Kapral's claims, however,

                               2
as the court ruled that his motion was untimelyfiled.
Under S 2255, a motion must be filed within one year of
"the date on which the judgment of conviction becomes
final." The district court interpreted that language to mean
that a defendant must file within one year of the date on
which this court affirms the defendant's conviction and
sentence. Since Kapral filed his motion more than one year
after we affirmed on direct review, the district court
dismissed his motion with prejudice. We granted Kapral's
request for a certificate of appealability. See 28 U.S.C.
S 2253(c)(1)(B). The district court had jurisdiction pursuant
to 28 U.S.C. S 2255. We have jurisdiction pursuant to 28
U.S.C. SS 2253(a) and 2255. We review issues of statutory
interpretation de novo. See, e.g., Stiver v. Meko, 130 F.3d
574, 577 (3d Cir. 1997).

II. Discussion

A.

Section 2255 provides in relevant part:

        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;

       (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.

                               3
28 U.S.C. S 2255.

This provision creates a statute of limitations for federal
defendants who attempt to collaterally attack their
conviction and/or sentence pursuant to S 2255. See Miller
v. New Jersey State Dep't of Corrections, 145 F.3d 616, 619
n.1 (3d Cir. 1998) (holding that the one-year requirement
for bringing a motion under S 2255 is a statute of
limitations subject to equitable tolling, not a jurisdictional
bar). It was enacted as part of the Antiterrorism and
Effective Death Penalty Act of 1996 ("AEDPA"), which was
signed into law on April 24, 1996. In Burns v. Morton, 134
F.3d 109 (3d Cir. 1998), we held that "S 2255 motions filed
on or before April 23, 1997, may not be dismissed for
failure to comply with S 2255's one-year period of
limitation," id. at 112, and we further held that, under the
principles set forth in Houston v. Lack, 487 U.S. 266
(1988), a pro se prisoner's S 2255 motion is deemed filed at
the moment it is delivered to the prison officials for mailing.
See 134 F.3d at 113. Although Kapral is incarcerated, his
motion was mailed by counsel and received by the district
court clerk's office on April 29, 1997, which was after the
Burns deadline. Accordingly, his motion is subject to the
terms of S 2255's one-year limitation period. 1
_________________________________________________________________

1. Kapral contends that the district court should have deemed his
motion timely filed on April 22, 1997, which is the date counsel
deposited the motion in the mail. Kapral advances several arguments in
support of this position, all of which we reject as meritless, although
one
warrants further discussion. Kapral claims that an employee of the
district court clerk's office told his counsel that "the date that would
be
used for purposes of determining the filing of[a] Federal habeas corpus
petition[ ] would be the date that it was mailed in the United States
Postal Service using adequate postage." Appellant's Br. at 34. Kapral
argues that counsel "reasonably relied" on that information and that,
under principles of equity, his motion should be deemed filed on the date
it was mailed. The record reflects that Kapral's counsel is an experienced
practitioner who should have known or verified the elementary rules that
govern the filing of a S 2255 motion. We reject, therefore, the suggestion
that counsel's alleged reliance on misinformation from the clerk's office
was reasonable. Cf. Kraft, Inc. v. United States , 85 F.3d 602, 609 (Fed.
Cir. 1996); Gabriel v. United States, 30 F.3d 75, 77 (7th Cir. 1994). A
counseled S 2255 motion will be deemed "filed," at the earliest, on the
date it is received by the district court clerk's office. See Rule 3(b),
Rules

                               4
Thus, we are called upon to decide when a "judgment of
conviction becomes final" within the meaning ofS 2255,
which is an issue of first impression for this Court. The
district court held that finality occurs when a court of
appeals affirms the judgment of conviction on direct review
even if the defendant subsequently files a timely petition
with the Supreme Court for certiorari review. The district
court reasoned that certiorari is discretionary and granted
in relatively few cases, and noted that "challenges by state
and federal prisoners to their convictions and
confinement[ ] are granted review only .45% of the time."
Kapral v. United States, 973 F. Supp 495, 498 n.6 (D.N.J.
1997) (internal quotation marks and citation omitted). The
district court then drew a distinction between an appeal as
of right and a discretionary appeal. Since the latter was so
infrequently granted, the district court reasoned that a
defendant's conviction was final when the defendant no
longer had a right (as opposed to a hope) of further review.
The district court stated:

       The Court [ ] declines to define final judgment of
       conviction based on a prisoner's petitioning the
       Supreme Court for certiorari. In contrast to the direct
       appeal of right, petitioning for certiorari constitutes a
       discretionary appeal. In exercising this discretion, the
       Supreme Court rarely grants certiorari in sentencing
       cases. In addition, having exercised the appeal of right,
       the petitioner has had a fair opportunity to present his
       federal claims in an appellate forum. Therefore, a
       judgment perfected by appeal may fairly be deemed a
_________________________________________________________________

Governing S 2255 Proceedings in the United States District Courts; see
also Gonzalez v. United States, 2 F. Supp.2d 155, 156 (D. Mass. 1998)
("[A] section 2255 petition is filed upon the receipt of the petition by
the
clerk of court and a determination that it complies with Rule[s] 2 and 3
[of the Rules Governing S 2255 Proceedings]."); United States v. Nguyen,
997 F. Supp. 1281, 1288 (C.D. Cal. 1998) ("[A] S 2255 motion is deemed
filed on the date it is received (and perhaps lodged) by the Clerk of the
Court."). Here, the clerk's office stamped Kapral's motion "received" on
April 29, 1997, and Kapral does not dispute that his motion was received
on that date. Thus, the district court did not err in treating his motion
as filed on April 29, 1997.

                               5
       final judgment from which the S 2255 statute of
       limitations begins to run.

Id. at 498 (footnotes omitted). Thus, the district court based
its definition of "final judgment" upon the improbability of
successful discretionary appeal and the fair opportunity for
review afforded by termination of appeals as of right.2 The
district court further opined that "an equitable tolling" of
the limitations period would apply if the Supreme Court
grants a defendant's petition for certiorari review. See id. at
499 n.7.

Kapral argues that a defendant has a right to petition the
Supreme Court for certiorari review and that the time
needed to do so cannot be omitted from considerations of
finality. Accordingly, Kapral contends that theS 2255 clock
begins to tick only after the 90-day period to file a certiorari
petition has expired. If a certiorari petition is timely filed,
he argues, the clock would start to tick when the Supreme
Court either denies certiorari or affirms the judgment of
conviction on the merits. Notably, the government agrees
with Kapral that if a defendant timely seeks certiorari
review, the judgment of conviction does not becomefinal
until the Supreme Court denies certiorari or affirms on the
merits. Appellee's Br. at 18-20. The government urges that
we affirm, however, on the ground that when a defendant,
like Kapral, chooses not file a certiorari petition, his
judgment of conviction becomes final on the date this court
affirms it on direct review. Id. at 20-24.

B.

"We begin with the familiar canon of statutory
construction that the starting point for interpreting a
statute is the language of the statute itself." Consumer Prod.
Safety Comm'n v. GTE Sylvania, Inc., 447 U.S. 102, 108
(1980). Here, neither "judgment of conviction" nor "final" is
expressly defined in S 2255. We consider these terms
seriatim.
_________________________________________________________________

2. The district court was also persuaded by the difference between the
wording of 28 U.S.C. S 2244(d)(1)(A) and that of S 2255. We will discuss
that distinction below.

                               6
In federal criminal practice, "judgment of conviction"
refers to a formal document, signed by the trial judge and
entered by the clerk of the district court, that sets forth
"the plea, verdict or findings, the adjudication, and the
sentence." FED. R. CRIM. P. 32(d)(1); see also BLACK'S LAW
DICTIONARY 843 (6th ed. 1990) (quoting Rule 32(b)(1), the
predecessor to Rule 32(d)(1), in defining "judgment of
conviction"). Under Rule 32(d)(1), a judgment of conviction
"includes both the adjudication of guilt and the sentence."
Deal v. United States, 508 U.S. 129, 131 (1993); see also
Ball v. United States, 470 U.S. 856, 862 (1985) ("[T]he
sentence is a necessary component of a `judgment of
conviction.' "). A judgment of conviction is entered only after
the trial court has completed the sentencing process, see
Howard v. United States, 135 F.3d 506, 509 (7th Cir. 1998),
and thus the term is commonly understood to refer to both
the conviction and sentence.

Under S 2255, a defendant is permitted to collaterally
attack both the conviction and sentence. See, e.g.,
McFarland v. Scott, 512 U.S. 849, 859 (1994) ("[C]riminal
defendants are entitled by federal law to challenge their
conviction and sentence in habeas corpus proceedings.").
We have no reason to doubt that Congress used the term
"judgment of conviction" in S 2255 in accordance with this
well-settled meaning. Thus, S 2255's limitation period
begins to run on the date on which the defendant's
conviction and sentence become "final."

As is evident from the district court's thoughtful
discussion, and the position of the parties on appeal, a
judgment of conviction could become "final" on one of
several dates. These include: the date on which the
defendant is sentenced or the judgment of conviction is
entered on the district court docket; the date on which the
court of appeals affirms the conviction and sentence or the
time for appeal expires; or the date on which the Supreme
Court affirms on the merits, denies a timely filed petition
for certiorari, or the time to seek certiorari review expires.
We must determine which concept of "finality" Congress
intended in S 2255. Our inquiry is guided by our awareness
that Congress enacted S 2255's limitations period to control
collateral attacks upon judgments obtained in federal
criminal cases. As the Supreme Court has noted,

                                7
       [t]he maxim noscitur a sociis, that a word is known by
       the company it keeps, while not an inescapable rule, is
       often wisely applied where a word is capable of many
       meanings in order to avoid the giving of unintended
       breadth to the Acts of Congress.

Jarecki v. G.D. Searle & Co., 367 U.S. 303, 307 (1961); see
also Deal v. United States, 508 U.S. 129, 132 (1993) ("[A]
fundamental principle of statutory construction (and,
indeed, of language itself) [is] that the meaning of a word
cannot be determined in isolation, but must be drawn from
the context in which it is used.").

The government submits the following dictionary
definition of "final" in support of its interpretation of the
statute:

       1. pertaining to or coming at the end; last in place,
       order, or time .... 2. ultimate .... 3 . conclusive or
       decisive: a final decision. 4. Law. a . precluding further
       controversy on the questions passed upon: The judicial
       determination of the Supreme Court is final. b .
       determining completely the rights of the parties, so
       that no further decision upon the merits of the issues
       is necessary: a final judgment or decree ....

Appellee's Br. at 18 (quoting WEBSTER' S ENCYCLOPEDIC
UNABRIDGED DICTIONARY OF THE ENGLISH LANGUAGE532 (1989
ed.)); see also BLACK'S LAW DICTIONARY 629 (6th ed. 1990)
(defining "final" as "[l]ast; conclusive; decisive; definitive;
terminated; completed" and defining "final decision or
judgment" as "[o]ne which leaves nothing open to further
dispute and which sets at rest cause of action between the
parties. One which settles rights of parties respecting the
subject matter of the suit and which concludes them until
it is reversed or set aside.... Also, a decision from which no
appeal or writ of error can be taken.").

We agree with the government's analysis that, when a
defendant files a timely petition for certiorari review, the
defendant's judgment of conviction does not become"final"
until the Supreme Court acts. Until then it cannot be said
that the determination of the court of appeals is"final"
within the context of S 2255, a provision that authorizes the
commencement of a collateral attack upon a judgment of

                               8
conviction. It is the action of the Supreme Court in ruling
on the certiorari petition that brings about closure on direct
review and elevates the decision of the court of appeals to
a level of finality that is "the last in place, order or time,"
"precludes further controversy on the questions passed
upon," and is "a decision from which no appeal or writ of
error can be taken."

It is, of course, true that when a court of appeals issues
its judgment on direct review, the resulting mandate is
"final" in the sense that it leaves nothing left to be decided
on the merits. However, the decision of the district court is
final in the same sense, and no less worthy of being
considered "conclusive or decisive" by that measure. Both
judgments are subject to further review, and wefind,
therefore, that neither is "final" within the meaning of
S 2255. Section 2255 is a provision that authorizes the
commencement of a collateral attack upon a judgment of
conviction. Accordingly, it is clear that "final," as used in
S 2255, refers to the decision on direct review that
"precludes further controversy on the questions passed
upon," the one "from which no appeal or writ of error can
be taken." We are persuaded that Congress intended this
concept of finality to control petitions filed under S 2255's
one-year limitations period.

As noted, a collateral attack is generally inappropriate if
the possibility of further direct review remains open:

       A district court should not entertain a habeas corpus
       petition while there is an appeal pending in [the court
       of appeals] or in the Supreme Court. The reason for the
       rule is that disposition of the appeal may render the
       [habeas corpus writ] unnecessary. This is true if the
       appeal is still pending [in the court of appeals] . . . . It
       is even more appropriate . . . when review of the
       conviction is pending before the Supreme Court.

Feldman v Henman, 815 F.2d 1318, 1320-21 (9th Cir.
1987) (internal quotation marks and citations omitted). This
is a procedural reality regardless of the probability that the
Supreme Court will actually grant certiorari. Thus, if a
defendant files for certiorari review, direct review is
ongoing, and the commencement of a simultaneousS 2255

                               9
proceeding would be inappropriate. Accordingly, we hold
that a judgment of conviction does not become "final"
within the meaning of S 2255 until the Supreme Court
affirms the conviction and sentence on the merits or denies
a timely filed petition for certiorari. Accord United States v.
Simmonds, 111 F.3d 737, 744 (10th Cir. 1997) ("Mr.
Simmonds' conviction became `final' after the Supreme
Court denied certiorari[.]").

In addition, if a defendant does not file a certiorari
petition, the judgment of conviction does not become"final"
until the time for seeking certiorari review expires. A
defendant has 90 days from the date on which the court of
appeals affirms the judgment of conviction tofile a petition
for a writ of certiorari.3 During that 90-day period, the
defendant retains the right to seek to overturn the
judgment of the court of appeals in the Supreme Court.
Only when the time for seeking certiorari review has
expired is it appropriate for a defendant to commence a
collateral attack on the conviction and sentence. See United
States v. Dorsey, 988 F. Supp. 917, 919 n.3 (D. Md. 1998).
As the district court explained in Dorsey:

       It makes [little] sense to suggest that a judgment of
       conviction is "final" for purposes of S 2255 upon
       completion of direct appeal of right, rather than the
       conclusion of any petition to the Supreme Court,
       simply because it is unlikely that the Supreme Court
       will grant certiorari. If a petitioner should awaitfinal
       disposition of direct appeal before petitioning for
       collateral relief, that final disposition should logically
_________________________________________________________________

3. Supreme Court Rule 13 provides in relevant part:

       1. Unless otherwise provided by law, a petition fo r a writ of
       certiorari to review a judgment in any case, civil or criminal,
entered
       by a state court of last resort or a United States court of appeals
       (including the United States Court of Appeals for the Armed Forces)
       is timely when it is filed with the Clerk of this Court within 90
days
       after entry of the judgment. A petition for a writ of certiorari
seeking
       review of a judgment of a lower state court that is subject to
       discretionary review by the state court of last resort is timely
when
       it is filed with the Clerk within 90 days after entry of the order
       denying discretionary review.

                               10
       be when no further avenues for direct appeal exist, not
       when it becomes increasingly unlikely that such direct
       appeal will continue.

Id. at 919 (comparing the reasoning in Feldman with the
district court's analysis here.).

As noted above, the district court's analysis in the
present case was greatly influenced by the low probability
of the Supreme Court actually granting discretionary review
of the decision of a court of appeals. In addition, the district
court reasoned that its analysis was fortified by, and
consistent with, Congress's intent in enacting AEDPA. The
court stated:

       The Court's holding comports with the policy
       underlying the Act. In amending 28 U.S.C. S 2255,
       Congress intended to reduce the abuse of habeas
       corpus that results from delayed and repetitivefilings
       . . . while preserving the availability of diligently sought
       review. . . . Defining the date of final judgment of
       conviction as the date of the appeals court's decision
       facilitates the congressional intent underlying the
       AEDPA. Specifically, it counters habeas corpus abuse
       by definitively limiting the time in which a prisoner
       may seek S 2255 review, while simultaneously
       providing ample opportunity for the prisoner to
       exercise the right to seek relief under S 2255.

Kapral, 973 F. Supp at 498 (internal quotation marks and
citations omitted). We find, however, that AEDPA's purpose
is best furthered by an interpretation of S 2255 that
recognizes the legal reality that the decision of a court of
appeals is subject to further review, and therefore not
"final" within the meaning of S 2255 until direct review has
been completed. Recognizing that one is allowed 90 days to
file a petition for certiorari does not mitigate the
congressional objective of imposing time limits where none
previously existed.4
_________________________________________________________________

4. See 142 CONG. REC. H3606 (daily ed. Apr. 18, 1996) ("I introduced this
legislation . . . to impose a statute of limitations on the filing of
habeas
corpus petitions.") (statement of Rep. Hyde).

                               11
In short, although a defendant has no review as of right
in the Supreme Court after a conviction is affirmed on
direct review, a defendant does have a right to petition for
that review. Thus, we think the district court drew too fine
a line in distinguishing between review as of right and
discretionary review for purposes of defining"final" under
S 2255.

C.

In Griffith v. Kentucky, 479 U.S. 314, 320 (1987), the
Supreme Court had to determine if the rule announced in
Batson v. Kentucky, 476 U.S. 79 (1986) would be applied to
convictions that had become final prior to Batson being
decided. The Court held that, under its precedent, the
answer to that inquiry required a "three-pronged analysis
. . . both to convictions that were final and to convictions
pending on direct review" to determine if Batson applied in
a particular instance. The Court then stated: "By`final' we
mean a case in which a judgment of conviction has been
rendered, the availability of appeal exhausted, and the time
for a petition for certiorari elapsed or a petition for
certiorari finally denied." Griffith, 479 U.S. at 321 n.6.

Moreover, in Teague v. Lane, 489 U.S. 288, 310 (1989),
the Court held that federal habeas corpus relief based upon
a "new rule" generally is unavailable if the rule was
announced after the defendant's conviction and sentence
became "final." See also Caspari v. Bohlen , 510 U.S. 383,
389 (1994). In the wake of Teague, "[a] threshold inquiry in
every habeas case . . . is whether the court is obligated to
apply the Teague rule to the defendant's claim." Id.; see
also Schiro v. Farley, 510 U.S. 222, 228 (1994). For
purposes of a Teague analysis, a defendant's judgment of
conviction becomes final (1) on the date the Supreme Court
denies certiorari, see, e.g., Stringer v. Black, 503 U.S. 222,
226 (1991), or (2) on the date the time for filing a timely
petition for a writ of certiorari expires. See , e.g., Caspari,
510 U.S. at 384.

As the amicus contends, it would make little sense for
S 2255's one-year limitation on collateral proceedings to
begin to run before a legal event that may give rise to a

                               12
claim for collateral relief -- i.e., the announcement of a new
rule-- has occurred. Rather, in the interest of the orderly
administration of direct and collateral proceedings, the first
day of the one-year limitations period logically should be
the last day on which any applicable new rule could be
decided. We find no reason to believe that Congress
intended to adopt a definition of finality inS 2255 that is
inconsistent with the concept of finality under a Teague
analysis.

Furthermore, while Congress has imposed a one-year
limitation on the commencement of collateral proceedings,
it does not appear that Congress intended to encourage the
commencement of collateral proceedings before a defendant
has had a full and fair opportunity to litigate his or her
claims on direct review. Indeed, as the government
contends, commencing a collateral attack while direct
review is ongoing would be "wasteful and pointless if the
conviction is reversed by the Supreme Court." Appellee's Br.
at 19. The outcome on direct review, even if not in the
defendant's favor, may also cause the defendant to limit or
rethink the claims that would be raised on collateral review,
or even dissuade the defendant from seeking collateral
review. For these reasons, and to ensure the orderly
administration of criminal proceedings, defendants have
long been discouraged from commencing S 2255
proceedings before the conclusion of direct review. See
Feldman, supra; United States v. Gordon, 634 F.2d 638,
638-39 (1st Cir. 1980) (holding that "in the absence of
`extraordinary circumstances' the `orderly administration of
criminal justice' precludes a district court from considering
a S 2255 motion while review of the direct appeal is still
pending"); United States v. Davis, 604 F.2d 474, 484 (7th
Cir. 1979) (same); Welsh v. United States, 404 F.2d 333
(5th Cir. 1968) (same); Womack v. United States , 395 F.2d
630 (D.C. Cir. 1968) (same); Masters v. Eide, 353 F.2d 517,
518 (8th Cir. 1965) (same); see also Rule 5, Rules
Governing S 2255 Proceedings, Advisory Committee Note
(1997) (S 2255 motion "is inappropriate if the movant is
simultaneously appealing the decision").

If the one-year limitations period were to run from the
judgment of the court of appeals, the defendant who elects

                                13
to file a certiorari petition may well be forced to commence
a simultaneous collateral proceeding before the Supreme
Court has ruled. This would only impair the orderly
administration of criminal proceedings by delaying the
ultimate resolution of both direct and collateral review. If,
however, the time for petitioning for certiorari review is
allowed to expire before the one-year limitation period
begins to run, collateral proceedings rarely will be
commenced while direct review is ongoing. Finally, it is
beyond dispute that the Supreme Court is the final arbiter
of whether a matter warrants certiorari review, and it
should have a chance to make that determination before a
defendant's judgment of conviction is deemed "final"-- a
label that, in a collateral proceeding, carries a presumption
that the defendant "stands fairly and finally convicted."
United States v. Frady, 456 U.S. 152, 164 (1982).

The government argues that interpreting S 2255 to
include the time for seeking certiorari review serves only to
delay filing a collateral challenge if a defendant does not
petition for certiorari, and it argues that this is contrary to
the congressional intent in enacting AEDPA. Appellee's Br.
at 20-21. We find this argument unpersuasive. Wefind no
indication in either the text of AEDPA or its legislative
history that Congress intended that the judgment of the
court of appeals would trigger the one-year period for a
defendant who does not file a certiorari petition. Further,
we reject the suggestion that waiting until the expiration of
the 90-day period for seeking certiorari review will somehow
thwart AEDPA's goal of speeding up the collateral review
process. Prior to AEDPA, a defendant could file aS 2255
motion "at any time," see, e.g. , United States v. Nahodil, 36
F.3d 323, 328 (3d Cir. 1994), and the new one-year
limitations period, which replaced the "at any time"
language in S 2255, is certain to prevent defendants from
delaying the commencement of collateral proceedings. We
do not believe that the collateral review process will be
slowed in any meaningful way if defendants are afforded 90
days to consult with counsel and to consider whether it
would be appropriate to exercise their right to seek
certiorari review.

In addition, we reject the suggestion that, because

                               14
AEDPA has imposed stringent requirements for seeking and
obtaining collateral relief, S 2255 must be interpreted to
provide as little time as possible for a defendant to file for
collateral relief. The "Great Writ" occupies far too important
a place in our jurisprudence to justify such an assumption
on the basis of the language of AEDPA.5 No one can deny
that errors sometimes occur during the course of a criminal
prosecution, or that depriving an individual of his or her
liberty is not to be taken lightly.

III.

Our research discloses but one other court of appeals
that has addressed the precise issue before us. In Gendron
v. United States, 154 F.3d 672 (7th Cir. 1998) (per curiam),
which was decided after the parties filed their briefs in this
case, the court held that "federal prisoners who decide not
to seek certiorari with the Supreme Court will have the
period of limitations begin to run on the date this court
issues the mandate in their direct criminal appeal." Id. at
674. The court reached this conclusion after comparing the
language of S 2255 with the language of the new limitations
period for state defendants seeking habeas relief pursuant
to 28 U.S.C. S 2254. Under S 2244(d)(1)(A), which was also
enacted as part of AEDPA, a one-year period of limitation
for state defendants begins to run from "the date on which
the judgment became final by the conclusion of direct
review or the expiration of the time for seeking such
review[.]" 28 U.S.C. S 2244(d)(1)(A).

The Gendron court assumed that "direct review" in
S 2244(d)(1)(A) means "review in the state's highest court,"
and noted that "Congress explicitly included the time for
seeking leave to appeal with a state supreme court even if
the petitioner elected not to do so." 154 F.3d at 674. The
court further noted that "[s]uch additional language is
lacking in S 2255." Id. The court inferred from this
difference that "Congress intended to treat the period of
limitations differently under the two sections," id., and it
concluded that the judgment of a federal defendant who
_________________________________________________________________

5. Section 2255 "afford[s] federal prisoners a remedy identical in scope
to
federal habeas." Davis v. United States, 417 U.S. 333, 343 (1974).

                               15
chooses not to seek certiorari review becomes final when
the court of appeals issues its mandate. We are
unpersuaded by this analysis. We do not think the Gendron
analysis affords adequate weight to the context of collateral
proceedings so central to an analysis of finality under
S 2255.

Moreover, as is discussed in more detail in section V of
this opinion, neither the court in Gendron nor the district
court here considered the wording of the limitations
provision contained in Chapter 154 of Title 28, which was
enacted into law as part of AEDPA. We believe this
omission undermines the holding of both of those courts.

As noted above, the language of 28 U.S.C. S 2244(d)(1)
parallels S 2255. The former provision sets forth the
limitation period for persons held in state custody whose
collateral challenges are governed by 28 U.S.C.S 2254.
Section 2244(d)(1) provides in relevant part:

       A 1-year period of limitation shall apply to an
       application for a writ of habeas corpus by a person in
       custody pursuant to the judgment of a State court. The
       limitation period shall run from the latest of--

        (A) the date on which the judgment becamefinal by
       the conclusion of direct review or the expiration of the
       time for seeking such review[.] . . .

28 U.S.C. S 2244(d)(1)(A) (emphasis added). Since S 2244
specifically states that a state judgment of conviction
becomes "final" upon the "conclusion of direct review or by
the expiration of the time for seeking such review," it may
at first appear that the absence of similar modifying
language in S 2255 reflects a congressional intent to have
the limitations period in the latter begin to run without
regard to any additional period that may be consumed by
an attempt to win discretionary review from the Supreme
Court. However, neither the statutory scheme nor judicial
precedent supports that interpretation.

We have not previously had occasion to interpret
S 2244(d)(1)(A) in the context presented here. However, the
similarity between that provision and S 2255 requires that
we consider whether the text of the former furthers our

                               16
inquiry into Congress's intent in drafting the latter.6
Notably, the district court and the court in Gendron did just
that, opining that the different language of the two
provisions "warrants individually tailored definitions of final
judgment" for state and federal defendants. Kapral 973 F.
Supp at 499; Gendron, 154 F.3d at 674.

The government suggests that our recent opinions in
Burns and Miller have settled the issue of when a judgment
becomes "final" under S 2244(d)(1)(A), and that those cases
compel the conclusion that the limitations period under
S 2255 runs from the date the court of appeals enters its
judgment if the defendant chooses not to seek certiorari
review. Appellee's Br. at 24-25. We disagree.

In Burns, we were concerned with whetherS 2244's one-
year limitation period could be applied retroactively and
thereby reduce the period for filing to less than one year for
persons whose convictions and sentences had already
become "final" prior to AEDPA's enactment. We held that
the one-year limitation could not be applied to habeas
petitions that were filed before AEDPA was enacted. See
134 F.3d at 111. We did not examine the language of
S 2244 in an attempt to determine when Congress intended
a state conviction to become final for purposes of starting
the one-year period in which habeas petitions must be filed.
To the extent that we did comment upon the text ofS 2244,
we stated that "federal inmates who wish to file motions . . .
under 28 U.S.C. S 2255 must adhere to a one-year period
of limitations virtually identical to that ofS 2244(d)(1)." Id. at
111-12 (emphasis added). That is consistent with our
decision here.

In Miller, we were asked to decide if the one-year filing
requirement of S 2244 is jurisdictional. There, a state
inmate alleged that he was prevented from meeting the one-
year deadline because he had been transferred to different
_________________________________________________________________

6. Our usual practice in AEDPA cases also counsels us to use this
opportunity to interpret S 2244. See Miller, 145 F.3d at 618 n.1 ("[W]e
have followed the practice, whenever we decide an AEDPA issue that
arises under S 2254 and the same holding would analytically be required
in a case arising under S 2255, or vice versa, of so informing the
district
courts.").

                               17
institutions thus hindering his compliance with the one-
year requirement. We stated that if the requirement was
jurisdictional, the district court would lack subject matter
jurisdiction, but if it were intended only as a period of
limitations, the court must apply the doctrine of equitable
tolling to determine if the period had run. We held that the
one-year period was a period of limitations, and remanded
for a consideration of whether the petitioner could establish
such unfairness as to toll the rigid application of the one-
year period. In so doing, we again noted the similarity
between S 2244 and S 2255 and held that the latter was
also subject to the doctrine of equitable tolling. See 145
F.3d at 618 n.1. That is consistent with our analysis here,
and to the extent that our discussion in either Miller or
Burns suggests that the definition of "final" in S 2244 and
S 2255 differs, our discussion would have been dicta and
would not control our current inquiry. See Patel v. Sun Co.,
Inc., 141 F.3d 447, 462 & n.11 (3d Cir. 1998) (discussing
the meaning of "dictum" and the reasons why it need not
be given any weight).

While the term "direct review" is not defined in
S 2244(d)(1)(A), it is axiomatic that direct review of a state
court criminal judgment includes the right to seek
certiorari review in the United States Supreme Court. See
Barefoot v. Estelle, 463 U.S. 880, 887 (1983) ("[T]he process
of direct review . . ., if a federal question is involved,
includes the right to petition this Court for a writ of
certiorari."); Bell v. Maryland, 378 U.S. 226, 232 (1964) ("In
the present case, the [state court judgment] is not yet final,
for it is on direct review in this Court."); see also Bradley v.
United States, 410 U.S. 605, 607 (1973) ("At common law,
the repeal of a criminal statute abated all prosecutions
which had not reached final disposition in the highest court
authorized to review them."); Webb v. Beto , 457 F.2d 346,
348 (5th Cir. 1972) (per curiam) (refusing "[t]o classify a
judgment as not final while the case is on appeal to the
highest state court, but final afterwards, even though on
appeal to the United States Supreme Court"). Therefore, a
state court criminal judgment is "final" (for purposes of
collateral attack) at the conclusion of review in the United
States Supreme Court or when the time for seeking
certiorari review expires. Accord Ross v. Artuz , 150 F.3d 97,

                               18
98 (2d Cir. 1998) ("Ross's conviction becamefinal [under
S 2244(d)(1)(A)] when his time to seek direct review in the
United States Supreme Court by writ of certiorari
expired[.]").

The omission of S 2244's clarifying language from the
mention of "final" in S 2255 is not sufficient to cause us to
conclude that Congress intended a different concept of
finality for state and federal defendants. As discussed
above, that concept includes the period in which a
defendant can seek discretionary review. Prior to the
expiration of the time for certiorari review, a conviction is
simply not "final" under either provision.

We also see no principled reason to treat state and
federal habeas petitioners differently. Congress has used
the term "final" to describe the type of judgment that will
trigger the limitations period for both classes of petitioners.
Section 2244(d)(1) and 2255's limitations periods were
enacted as part of AEDPA, and both provisions are found in
Chapter 153 of Title 28. Therefore, Congress's more lucid
definition of "final" in S 2244(d)(1)(A) suggests that a
judgment likewise becomes "final" within the meaning of
S 2255 only when direct review in the United States
Supreme Court has concluded. See Sorenson v. Secretary of
Treasury, 475 U.S. 851, 860 (1986) ("The normal rule of
statutory construction assumes that identical words used
in different parts of the same act are intended to have the
same meaning.") (quotation marks and citation omitted);
see also Baskin v. United States, 998 F. Supp. 188, 199 (D.
Conn. 1998) (relying on the more descriptive language of
S 2244 to hold that S 2255's limitations period begins to run
at "the conclusion of direct review or the expiration of the
time for seeking such review").7
_________________________________________________________________

7. Of course, canons of construction are not absolute and must yield
when other indicia of congressional intent suggest a different result. We
find that AEDPA' language does not suggest a different result. We are, of
course, aware that the difference between the wording of S 2244(d)(1)(A)
and S 2255 could simply be the result of imprecise draftsmanship, and
not at all an expression of congressional intent. See generally Lindh v.
Murphy, 521 U.S. 320, ___, 117 S. Ct. 2059, 2068 (1997) ("[I]n a world
of silk purses and pigs' ears, [AEDPA] is not a silk purse of the art of
statutory drafting.").

                               19
The government argues that "[b]ecause the requirement
of exhaustion and the interest of comity play no part in
actions by federal prisoners, the language of S 2244(d)(1)
accommodating those concerns has no bearing or effect on
the differently-worded [sic] S 2255." Appellee's Br. at 27. We
disagree. While the exhaustion requirement generally is
satisfied if the defendant's claims are fairly presented
through to the state's highest court for review, see, e.g.,
Burkett v. Love, 89 F.3d 135, 138 (3d Cir. 1996), the
meaning of "exhaustion" does not further our analysis of
the proper interpretation of S 2244(d)(1)(A). Section
2244(d)(1)(A) does not provide that the one-year period
begins to run on the date the petitioner's claims are
"exhausted"-- a term that Congress could easily have
employed in the statute if that is what it meant. Rather,
S 2244(d)(1)(A) provides that the limitation period begins to
run at the "conclusion of direct review or the expiration of
the time for seeking such review." That includes the right to
review in the United States Supreme Court, and it is settled
that the "conclusion of direct review" is not synonymous
with "exhaustion of available state court remedies." See
Wade v. Mayo, 334 U.S. 672, 681 (1948) (holding that,
although certiorari review is part of the direct review
process, an application for certiorari is not required to
satisfy the exhaustion requirement).

IV.

Although we find that the distinction between the
wording of S 2244(d)(1)(A) and S 2255 is insignificant insofar
as a definition of "final" is concerned, we do find the
distinction in the context in which Congress used"final"
there as opposed to Chapter 154 of Title 28 to be
significant. As mentioned above, we believe the analysis of
both the court in Gendron and the district court here is
undermined by the failure of those courts to consider the
wording of Chapter 154 when interpreting S 2255.

Congress enacted a new Chapter 154 of Title 28 as part
of AEDPA. That Chapter sets forth the procedures that
govern S 2254 petitions filed by state prisoners serving
capital sentences in states that meet certain conditions set

                               20
forth in the statute ("opt-in jurisdictions"). See 28 U.S.C.
S 2261. Section 2263 provides in relevant part:

        (a) Any application under this chapter for habeas
       corpus relief under section 2254 must be filed in the
       appropriate district court not later than 180 days after
       final State court affirmance of the conviction and
       sentence on direct review or the expiration of the time
       for seeking such review.

        (b) The time requirements established by subsection
       (a) shall be tolled--

        (1) from the date that a petition for certiorari is
       filed in the Supreme Court until the date of final
       disposition of the petition if a State prisonerfiles the
       petition to secure review by the Supreme Court of
       the affirmance of a capital sentence on direct review
       by the court of last resort of the State or otherfinal
       State court decision on direct review[.]. . .

28 U.S.C. S 2263(a)-(b)(1).

Significantly, the limitations period in S 2263 runs from
"final State court affirmance of the conviction and sentence
on direct review." Congress's use of "State court" to modify
the well-settled meaning of direct review (which includes
the right to seek review in the Supreme Court), provides
strong support for the conclusion that the limitations
periods under S 2244 and S2255 - which lack an analogous
modifier - run from the conclusion of Supreme Court
review. In SS 2244 and 2255, Congress spoke in terms of
"finality", not in terms of "affirmance."

Moreover, under S 2263, the limitations period begins to
run before the defendant files a certiorari petition, as the
statute expressly provides that the limitations period is
"tolled" on the date a certiorari petition isfiled. Sections
2244(d)(1)(A) and 2255, in contrast, do not expressly call
for a tolling for certiorari proceedings. Tolling is
unnecessary if the limitations period begins to run only
after certiorari review has been completed. We believe that
Congress did not mention tolling in S 2244 orS 2255
because Congress assumed tolling was unnecessary since it
did not intend the limitations period to begin until after the

                               21
time for certiorari review expired. Had Congress intended
the limitations period to begin upon the conclusion of an
appeal as of right, it would have provided for tolling to allow
for a petition for certiorari to be acted upon, just as it did
in Chapter 154.

V.

To summarize, we hold that a "judgment of conviction
becomes final" within the meaning of S 2255 on the later of
(1) the date on which the Supreme Court affirms the
conviction and sentence on the merits or denies the
defendant's timely filed petition for certiorari, or (2) the date
on which the defendant's time for filing a timely petition for
certiorari review expires. If a defendant does not pursue a
timely direct appeal to the court of appeals, his or her
conviction and sentence become final, and the statute of
limitation begins to run, on the date on which the time for
filing such an appeal expired.

We affirmed Kapral's conviction and sentence by
Judgment Order entered on February 13, 1996. Kapral did
not file a petition for a writ of certiorari. Accordingly, his
judgment of conviction became final within the meaning of
S 2255 when his time for filing a petition for a writ of
certiorari expired. Thus, the one-year period of limitation
began to run 90 days from February 13, 1996, which was
Monday, May 13, 1996. Since Kapral's motion wasfiled on
April 29, 1997, it was timely.

VI.

For the foregoing reasons, we will vacate the district
court's order dismissing Kapral's S 2255 motion, and we
will remand this matter for further proceedings consistent
with this opinion.

                                22
ALITO, Circuit Judge, concurring:

I join the opinion of the court, but I write separately to
elaborate on my reasons for disagreeing with the Seventh
Circuit's decision in Gendron v. United States , 154 F.3d 672
(7th Cir. 1998), which conflicts with our decision here. Both
Gendron and this case concern the new deadline for filing
a motion under 28 U.S.C S 2255. The current version of
S 2255 imposes a one-year period of limitation and provides
that this limitation period shall run from the latest of four
specified dates. One of those dates is "the date on which
the judgment of conviction becomes final." 28 U.S.C.
S 2255. This is the language at issue in both Gendron and
the case now before us.

If one looks at only the text of S 2255, the phrase "the
date on which the judgment of conviction becomesfinal" is
susceptible to two entirely reasonable interpretations. It
may mean the date on which occurs the last step in the
process of direct appeal. See The Random House Dictionary
of the English Language 532 (1967) (defining"final" to
mean, among other things, "last in place, order, or time").
Alternatively, the phrase "the date on which the judgment
of conviction becomes final" may reasonably be interpreted
to mean the date on which the conviction is no longer
subject to reversal by means of the process of direct appeal.
See id. (defining "final" to mean, among other things,
"precluding further controversy on the questions passed
upon").

These two interpretations produce the same results in
those cases in which the defendant exhausts the process of
direct review, i.e., appeals to the court of appeals and then
petitions for a writ of certiorari. In those cases, the last step
in the process of direct appeal occurs at the same time
when the defendant's conviction becomes immune from
reversal on direct appeal, i.e., when the Supreme Court
denies certiorari or, if certiorari is granted, when the
Supreme Court hands down its decision on the merits of
the case. These two interpretations, however, produce
different results in those cases, such as this case and
Gendron, in which the defendant does not exhaust the
direct-review process. In cases like this one and Gendron,
the last step in the process of direct appeal occurs when

                               23
the court of appeals' judgment is entered, but the judgment
of conviction does not become immune from reversal
through the process of direct appeal until the time for
petitioning for certiorari expired -- generally 90 days after
the entry of the court of appeals' judgment. See Supreme
Court Rule 13.1. Thus, in those cases in which a defendant
appeals to the court of appeals but does not seek certiorari,
the first interpretation will generally give the defendant one
year from the entry of the court of appeals' judgment to file
a motion under S 2255, whereas the second interpretation
will generally give the defendant 15 months from the entry
of the court of appeals' judgment to file that motion.

As I have already said, I believe that the text ofS 2255
may reasonably be interpreted in either of these ways.
Indeed if I were compelled to choose one interpretation
based solely on the text of that provision, I wouldfind the
choice exceedingly hard. Moreover, I think that a
reasonable legislator could easily choose either
interpretation. As noted, this choice matters in only those
cases in which the defendant does not exhaust all of the
steps of the direct review process, i.e., chiefly in those cases
in which a defendant does not petition for certiorari. In
such cases, a legislator could reasonably think that the
one-year limitation period should begin to run upon the
entry of the court of appeals' judgment, because all
defendants, whether or not they petition for certiorari,
should have one year (and no more) from the end of the
direct review process to prepare and file a S 2255 motion.
On the other hand, recognizing that some defendants who
do not end up petitioning for certiorari nevertheless spend
some of the time prior to the certiorari deadline considering
that option, a legislator could reasonably think that such
defendants should have a full year from that deadline to
devote to the preparation of a S 2255 motion. Both of these
policy choices are reasonable, and viewed prospectively the
difference between them is hardly of much significance.

As both the Gendron court and our panel recognize,
however, the relevant language in S 2255 must be
considered together with 28 U.S.C. S 2244(d)(1), which sets
a one-year period of limitation for the filing of a federal
habeas petition by a state prisoner. This provision, like the

                               24
portion of S 2255 at issue in this case, was enacted as part
of the Antiterrorism and Effective Death Penalty Act of 1996
("AEDPA"). Moreover, S 2244(d)(1), like the current version
of S 2255, provides that the limitation period for a state
prisoner filing a federal habeas petition begins to run from
the latest of four specified dates, one of which is "the date
on which the judgment became final by the conclusion of
direct review or the expiration of the time for seeking such
review." 28 U.S.C. S 2244 (d)(1). Accordingly, we must
decide what to make of the fact that S 2255 refers to "the
date on which the judgment of conviction becomesfinal,"
whereas S 2241(d)(1) refers to "the date on which the
judgment became final by the conclusion of direct review or
the expiration of the time for seeking such review."

Tackling this problem, the Gendron court invoked a
canon of interpretation set out in Russello v. United States,
464 U.S. 16, 23 (1983), viz., that "[w]here Congress
includes particular language in one section of a statute but
omits it in another section of the same Act, it is generally
presumed that Congress acts intentionally and purposely in
the disparate inclusion or exclusion."1 Noting that Congress
included the phrase "by the conclusion of direct review or
the expiration of the time for seeking such review" in
S 2244(d)(1) but omitted that phrase fromS 2255, the
Gendron court concluded that the concept of the date on
which a judgment becomes final must mean something
different under S 2255 than it does underS 2244(d)(1), and
the Gendron court then held that under S 2255 a judgment
becomes final upon the conclusion of direct review.

I would not quarrel with the canon set out in Russello
even if it were my prerogative to do so, but, I do not agree
with the Seventh Circuit's use of the canon in Gendron. It
is important to recognize that this canon does not purport
to lay down an absolute rule and that, like every other
canon, it is "simply one indication of meaning; and if there
are more contrary indications . . . it must yield." Antonin
Scalia, A Matter of Interpretation 27 (1997). The way in
_________________________________________________________________

1. The Gendron court cited Hohn v. United States, 118 S. Ct. 1969, 1977
(1998), and McNutt v. Board of Trustees of Univ. of Ill., 141 F.3d 706,
709
(7th Cir. 1998), which both quoted Russello.

                               25
which the canon was employed in Russello illustrates how
it may properly be used.

Russello concerned the interpretation of a provision of the
Racketeer Influenced and Corrupt Organizations"(RICO)"
statute, 18 U.S.C. S 1963(a)(1), which, at that time,
authorized the forfeiture of "any interest" that a convicted
RICO defendant had "acquired . . . in violation of [18
U.S.C.] S 1962," the provision setting out the activities
prohibited by the RICO statute. The defendant in Russello
argued that the term "interest" referred only to an interest
in the RICO enterprise itself and not to profits or proceeds
derived from racketeering. In rejecting this argument, the
Supreme Court began with the ordinary meaning of the
term "interest" and observed, after quoting several
dictionary definitions, that it was "apparent that the term
`interest' comprehends all forms of real and personal
property, including profits and proceeds." 464 U.S. at 21.
Then, as one of several reasons for rejecting the defendant's
artificially narrow interpretation of the term"interest," the
Court invoked the canon upon which the Gendron court
relied. Noting that 18 U.S.C. S 1963(a)(1) spoke "broadly of
`any interest . . . acquired,' " while the very next subsection,
18 U.S.C. S 1963(a)(2), "reache[d] only `any interest' in . . .
any enterprise which [the defendant] had established[,]
operated, controlled, conducted, or participated in the
conduct of, in violation of section 1962,' " the Court
observed that "[w]here Congress includes particular
language in one section of a statute but omits it in another
section of the same Act, it is generally presumed that
Congress acts intentionally and purposely in the disparate
inclusion or exclusion.' " 464 U.S. at 23 (citation omitted).
The Court added:

       We refrain from concluding here that the differing
       language in the two subsections has the same meaning
       in each. We would not presume to ascribe this
       difference to a simple mistake in draftsmanship.

Id.

Russello, then, was a case in which the statutory
language at issue had a plain meaning, an argument was
made that the statutory language should be interpreted

                               26
more narrowly than that plain meaning, another provision
of the same statute used different language to convey that
narrower meaning, and the Court therefore presumed that
the provision at issue meant what its language plainly
stated and did not have the artificially narrow meaning
explicitly set out in the other, more narrowly crafted
statutory section.

The situation in the present case is quite different in
several important ways. Here, the relevant language in
S 2255, unlike the statutory language at issue in Russello,
does not have a single, obvious meaning. Instead, as I have
said, that language may be interpreted in two entirely
reasonable ways. Moreover, both of these interpretations --
that a judgment of conviction becomes final by"the
conclusion of direct review" and that a judgment of
conviction becomes final by "the expiration of the time for
seeking such review" -- are set out in S 2244(d)(1). Invoking
the Russello canon, the Gendron court says that it is
refusing to read into S 2255 the extra explanatory language
contained in S 2244(d)(1), but actually the Gendron court in
effect reads into S 2255 part of that explanatory language,
viz., the part that says that a judgment of conviction
becomes final "by the conclusion of direct review." 28
U.S.C. S 2244(d)(1).

The Russello canon is based upon a hypothesis of careful
draftsmanship. See 464 U.S. at 23 ("We would not presume
to ascribe this difference to a simple mistake in
draftsmanship.") But the Gendron court's interpretation
produces a result that is inconsistent with that hypothesis.
According to the Gendron court, the hypothetical careful
draftsman responsible for crafting S 2255 used the phrase
"the date on which the judgment of conviction becomes
final" to mean the date on which direct review concludes,
even though a careful draftsman would have realized that
this phrase is susceptible to another, entirely reasonable
interpretation. Moreover, according to the Gendron court,
this hypothetical careful draftsman took this approach even
though he or she included in S 2244(d)(1) language that
expressly conveys this very meaning, i.e., "by the
conclusion of direct review." This simply does not make
sense. A careful draftsman who laid S 2255 andS 2244(d)(1)

                                27
side by side would not have taken such an approach.
Rather, a careful draftsman would have realized that, just
as it was necessary in S 2244(d)(1) to explain what was
meant by the date on which a judgment became final, so it
was equally necessary to provide such an explanation in
S 2255.

For these reasons, it seems unlikely that the disparate
language in SS 2244(d)(1) and 2255 resulted from a careful
drafting decision -- and this is borne out by an
examination of the origins of these provisions. At the
beginning of the 104th Congress, Senator Dole introduced
S.3, "The Violent Crime Control and Law Enforcement
Improvement Act of 1995," which among other things,
proposed to reform federal habeas corpus practice. Like
many prior habeas reform bills introduced during the
preceding decade, Section 508 of S.3 imposed a limitation
period for the filing of S 2255 motions and provided for this
period to run from the latest of four dates, including "the
date on which the judgment of conviction becomesfinal.
See, e.g., S.238, "Reform of Federal Intervention in State
Proceedings Act of 1985," 99th Cong. S 6 (1985). This
language, of course, is precisely the same as that now
contained in S 2255.

Another portion of section 508 provided for S 2244 to be
amended to include a one-year limitation period forfiling a
federal habeas petition, but this proposed amendment--
again following the pattern of prior unsuccessful habeas
reform bills2 -- differed from the analogous language now in
S 2244(d)(1). This proposed amendment provided for the
one-year period to run from the latest of

       "(1) the date on which State remedies are e xhausted;

       "(2) the date on which the impediment to fili ng an
       application created by State action in violation of the
       Constitution or laws of the United States is removed,
       where the applicant was prevented from filing by such
       State action;

       "(3) the date on which the Federal constitution al right
       asserted was initially recognized by the Supreme Court,
_________________________________________________________________

2. See, e.g., id. S 2,

                                28
       where the right has been newly recognized by the
       Court and is made retroactively applicable; or

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

S.3, 104th Cong. S 508 (1995) (emphasis added).

Several months after S.3 was introduced, Senators
Specter and Hatch sponsored S.623, the "Habeas Corpus
Reform Act of 1995," which took a different approach with
respect to the date on which the limitation period should
begin to run for federal habeas claims asserted by state
prisoners. Instead of providing, as S.3 had, for this period
to begin to run from "the date on which State remedies are
exhausted," S.623 provided (as S 2244(d)(1) now does) for
this period begin to run from "the date on which the
judgment became final by the conclusion of direct review or
the expiration of the time for seeking such review." S.623,
104th Cong. S 2 (1995). At the same time, S.623, like
current S 2244(d)(2), provided for the one-year period to be
tolled during the pendency of a properly filed state
application for post-conviction or other collateral review. Id.

Senator Specter's remarks when he introduced S.623
suggest the reason for this new approach. Senator Specter
said that it was "necessary to end the abuse in which
petitioners and their attorneys" then engaged in capital
cases, viz., waiting until a death warrant was signed before
filing a federal habeas petition. 141 Cong. Rec. S4592 (daily
ed. Mar. 24, 1995). Senator Specter also complained about
"the endless delays" caused by the exhaustion requirement.
Id. Based on these remarks, it is reasonable to infer that
the reason for the new approach taken in S.623 was to
force state prisoners, upon the completion of direct review,
promptly to commence either a state post-conviction relief
proceeding (which would toll the limitation period) or a
federal habeas proceeding. Thus, the phrase "the date on
which the judgment became final by the conclusion of
direct review or the expiration of the time for seeking such
review" seems to have been employed to make it clear that
the approach taken in S.3 and prior bills was being
changed. Unfortunately, S.623 did not modify the language

                               29
used in S.3 and previous bills concerning the one-year
period for filing S 2255 motions.

On April 19, 1995, the federal building in Oklahoma City
was bombed, and on April 27, Senator Dole introduced
S.735, the "Comprehensive Terrorism Protection Act of
1995." This bill incorporated the habeas reform provisions
of S.623. See 141 Cong. Rec. S7597 (daily ed. May 26,
1995) (remarks of Sen. Hatch); id. at S7585 (remarks of
Sen. Specter); 141 Cong. Rec. S7803 (daily ed. June 7,
1995) (remarks of Sen. Specter); 142 Cong. Rec. S3472
(daily ed. Apr. 17, 1996) (remarks of Sen. Specter). S.735
passed the Senate and the House with the relevant
amendments to SS 2244(d)(1) and 2255 essentially
untouched.3

Based on the text of SS 2244(d)(1) and 2255 and the
history set out above, I conclude that S 2255's reference to
"the date on which the judgment of conviction becomes
final" and S 2244(d)(1)'s reference to"the date on which the
judgment became final by the conclusion of direct review or
the expiration of the time for seeking such review" mean
the same thing. I reach this conclusion for three chief
reasons: first, the statutory text strongly suggests that the
difference in language did not result from a careful drafting
choice; second, the legislative history suggests that this
difference in language is instead a product of the vagaries
of the legislative process; and third, while I think that a
legislator could reasonably choose to have the one-year
limitation period begin either when direct review ends or
when the opportunity for direct review expires, I think it
would be odd for a legislator to take one approach in cases
involving federal habeas petitions filed by state prisoners
and the other in cases involving S 2255 motions filed by
federal prisoners. Consequently, I believe that a"judgment
of conviction becomes final," within the meaning of S 2255
_________________________________________________________________

3. No house or Senate Report was submitted, and the Conference Report
contained only one brief reference to this provision. See H.R. Rep. No.
104-518, at 111, (1996) reprinted in 1996 U.S.C.C.A.N. 924, 944 ("This
title . . . sets a one year limitation on an application for a habeas writ
. . . .").

                                30
on the date when direct review ends and there is no
opportunity for further direct review.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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