                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 98-2358
                                     ___________

Keith A. Smith,                           *
                                          *
             Appellee,                    *
                                          *
      v.                                  * Appeal from the United States
                                          * District Court for the Western
Michael Bowersox,                         * District of Missouri.
                                          *
             Appellant.                   *
                                     ___________

                               Submitted: September 22, 1998
                                   Filed: October 20, 1998
                                    ___________

Before HANSEN, BRIGHT, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
                            ___________

BRIGHT, Circuit Judge.

       Appellant, Michael S. Bowersox, is the warden of the Missouri State
Penitentiary. He takes this interlocutory appeal from a district court1 scheduling order,
an order which determined the limitations period under 28 U.S.C. § 2244(d)(1)(A) and
gave the petitioner, inmate Keith A. Smith, until November 2, 1998—one year after the
Supreme Court rejected his petition for writ of certiorari—to file an application for writ




      1
        The Honorable Gary A. Fenner, United States District Judge for the Western
District of Missouri.
of habeas corpus. Because the statute of limitations was properly interpreted, we now
affirm.

                                           I.

       The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) changed
the federal law of habeas corpus. Among other alterations, the AEDPA imposed a one-
year statute of limitations on petitions for writ of habeas corpus filed under 28 U.S.C.
§ 2254. This limitations period, found at 28 U.S.C. § 2244(d)(1), states in pertinent
part that:

             (d)(1) 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 became final by
             the conclusion of direct review or the expiration of the time
             for seeking such review; . . . .


       Although both parties to this appeal recognize the applicability of the statute,
they differ in their interpretations of how the time bar should be calculated. Appellant
argues that the phrase "became final by the conclusion of direct review" refers to the
conclusion of state court review only and excludes the prospect of certiorari. Appellee,
in contrast, maintains that the opportunity for Supreme Court review falls within the
meaning of the phrase.

                                           II.

      Petitioner Smith is incarcerated by the State of Missouri, under sentence of
death, for a 1991 double murder. The Supreme Court of Missouri affirmed his
conviction, sentence, and the denial of any post-conviction relief, State v. Smith, 944


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S.W.2d 901, 909 (Mo.1997)(en banc), and refused his request for rehearing on May
27, 1997. The United States Supreme Court denied his petition for writ of certiorari
on November 3, 1997. Smith v. Missouri, 118 S. Ct. 377 (1997).

        Anticipating the need to file an application for federal habeas relief, Smith moved
the federal district court for appointment of counsel. That motion was granted, and,
subsequently, on March 23, 1998, Smith filed a motion for the entry of a scheduling
order requesting that the district court determine the time frame within which he would
be permitted to file his habeas petition. As we have observed, Smith urged the court,
inter alia, to find that the one-year limitations period should run from the date on which
the United States Supreme Court denied his petition for certiorari. In contrast,
Bowersox argued that the statute of limitations began to run much earlier—on the date
that the Missouri Supreme Court issued its mandate.

        The district court entered its order on April 17, 1998. It ruled that, for purposes
of the AEDPA, the judgment against Smith became final when his petition for a writ
of certiorari was denied, and, as a result, that any application for federal habeas corpus
relief in this case must be filed on or before November 2, 1998.

       In response to Bowersox's motion so to do, the district court granted leave for
an interlocutory appeal to this court pursuant to 28 U.S.C. § 1292(b).2

      2
        Both parties to this action, as well as the district court, agree that we have
jurisdiction to hear this case. Although the Court's recent decision in Calderon v.
Ashmus, 118 S. Ct. 1694 (1998), held that the determination of certain limitations
provisions of the AEDPA was not justiciable, we find Ashmus to be distinguishable
from the case at bar because the procedural postures of the two cases are significantly
different. While the petitioner in Ashmus sought an interpretation concerning which
statute of limitations would govern his hypothetical habeas petition through a
declaratory judgment action, the issue is raised in this case as part of a valid scheduling
order issued in an active controversy, one over which the district court has properly
taken cognizance.

                                           -3-
                                            III.

       The terms of the AEDPA do not address the meaning of the phrase "conclusion
of direct review." Warden Bowersox argues that the common understanding of "direct
review", as well as the case law interpreting other aspects of the statute,3 indicates that
the limitations period is launched merely by the conclusion of state court review.

       We reject this view.

       Review of a state criminal conviction by the Supreme Court of the United States
is considered direct review of the conviction. Bell v. Maryland, 378 U.S. 226, 232
(1964). Moreover, there is a well-established body of federal case law that interprets
the phrase "final by the conclusion of direct review" to include an opportunity to seek
certiorari.4 When Congress elects to use terminology that has become commonplace
in court decisions in a particular field of law, the rules of statutory construction call for
us to define the statute's terms in harmony with that accepted judicial meaning. See,
e.g., Evans v. United States, 504 U.S. 255, 259-60 (1992)(citing and quoting
Morissette v. United States, 342 U.S. 246, 263 (1952)). Thus, a chance to solicit
review of constitutional issues before the United States Supreme Court, after the end
of state court proceedings, properly falls within the meaning of "final by the conclusion
of direct review."

       We conclude that the running of the statute of limitations imposed by
§ 2244(d)(1)(A) is triggered by either (i) the conclusion of all direct criminal appeals
in the state system, followed by either the completion or denial of certiorari

       3
    See, Lindh v. Murphy, 117 S. Ct. 2059 (1997)(interpreting sections of the
AEDPA not in question here).
       4
       See, e.g., Teague v Lane, 489 U.S. 289, 295 (1989) and Caspari v. Bohlen, 510
U.S. 383, 390 (1994).

                                            -4-
proceedings before the United States Supreme Court; or (ii) if certiorari was not sought,
then by the conclusion of all direct criminal appeals in the state system followed by the
expiration of the time allotted for filing a petition for the writ.

       Smith sought certiorari promptly and properly following the Missouri court's
determination of his appeal. When the Supreme Court denied his plea for writ of
certiorari on November 3, 1997, the one-year statute of limitations began to run. In this
case, Smith has until midnight, November 2, 1998 to petition for habeas corpus in the
federal courts.

      Accordingly, we affirm the order of the district court.

      A true copy.


             Attest:


                     CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.




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