188 F.3d 1157 (9th Cir. 1999)
MICHAEL ALLEN BOWEN, Petitioner-Appellant,v.ERNEST ROE, Warden; CALIFORNIA STATE ATTORNEY GENERAL, Respondents-Appellees.
No. 98-56308
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
Submitted August 4, 19991 Pasadena, CaliforniaFiled August 30, 1999

Michael Allen Bowen, Lancaster, California, in Pro Per, for  the petitioner-appellant.
Steven T. Oetting, Deputy Attorney General, San Diego, California, for the respondents-appellees.
Appeal from the United States District Court for the Central District of California;  Robert J. Timlin, District Judge, Presiding.  D.C. No. CV-98-00045-RT-EE.
Before: Cynthia Holcomb Hall, Thomas G. Nelson,  Circuit Judges, and James Ware,2 District Judge.
CYNTHIA HOLCOMB HALL, Circuit Judge:


1
Michael Allen Bowen appeals from the district court's  order dismissing as untimely under 28 U.S.C. S 2244(d)(1)(A)  his 28 U.S.C. S 2254 habeas petition. We have jurisdiction  under 28 U.S.C. S 2253(a), and we reverse and remand.

FACTUAL BACKGROUND

2
Michael Allen Bowen ("Bowen") was convicted in California state court of possession of heroin in state prison and possession of drug paraphernalia--a syringe--in state prison.  Because Bowen had two prior burglary convictions that were  characterized as "strikes" under California Penal Code section  667(b)-(i), the state court sentenced him to two concurrent terms of twenty-five years to life in prison. Bowen appealed  his conviction to the California Court of Appeal, claiming (1)  he had not possessed a useable quantity of heroin, (2) the trial  court failed to sua sponte give CALJIC No. 2.72, (3) the trial  court should have exercised its discretion to strike the prior  convictions, (4) the prior convictions did not qualify as  "strikes," and (5) his sentence was cruel and unusual punishment. The appellate court affirmed Bowen's conviction.  Bowen then filed a petition for review in the California  Supreme Court, raising the same five issues he had raised in  the state court of appeal. On January 22, 1997, the California  Supreme Court denied without prejudice Bowen's petition for  review. Bowen did not file a petition for a writ of certiorari  from the United States Supreme Court.


3
On February 10, 1998, approximately thirteen months after  the California Supreme Court had denied Bowen's petition for  review, Bowen filed a 28 U.S.C. S 2254 habeas petition in the  District Court for the Central District of California. Bowen  raised the same five issues in his federal habeas petition that  he had raised on direct appeal in the state courts. On June 9,  1998, the district court dismissed Bowen's habeas petition as  untimely under the one-year limitations period of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"),  28 U.S.C. S 2244(d)(1)(A) (Supp. 1999), because Bowen had  filed his petition more than one year after January 22, 1997,  the date on which the California Supreme Court denied his  petition for review.


4
On June 26, 1998, Bowen filed a petition for the issuance  of a certificate of probable cause, claiming that his sentence  was cruel and unusual punishment. Bowen, however, did not challenge the district court's dismissal of his habeas petition  as untimely. The district court granted a certificate of appealability, but limited the issue on appeal to whether Bowen's  habeas petition had been timely filed under 28 U.S.C.  S 2244(d)(1)(A).

DISCUSSION

5
The issue certified for appeal effectively asks: When a  habeas petitioner has sought direct review of a judgment of  conviction in the highest state court, but thereafter does not  file a petition for a writ of certiorari from the United States  Supreme Court, does the AEDPA's one-year limitations  period begin to run on (1) the date the state court enters its  judgment or (2) ninety days later, when the period within  which the prisoner can petition for a writ of certiorari from the United States Supreme Court expires3?  We hold that theperiod of "direct review" in 28 U.S.C. S 2244(d)(1)(A)  includes the period within which a petitioner can file a petition for a writ of certiorari from the United States Supreme  Court, whether or not the petitioner actually files such a petition. Therefore, when a petitioner fails to seek a writ of certiorari from the United States Supreme Court, the AEDPA's  one-year limitations period begins to run on the date the  ninety-day period defined by Supreme Court Rule 13 expires.


6
The AEDPA provides for a one-year period of limitation on habeas petitions:


7
(d)(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a per- son in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of -


8
(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 . . . .


9
28 U.S.C. S 2244(d)(1)(A) (Supp. 1999).


10
Section 2244(d)(1)(A) includes within the definition of  finality the period within which a petitioner can seek direct  review of his conviction. See id. When a challenge to a state  court conviction presents a federal question, the Supreme  Court has held that "the process of direct review. . . includes  the right to petition this Court for a writ of certiorari." See  Barefoot v. Estelle, 463 U.S. 880, 887 (1983); cf. Bell v.  Maryland, 378 U.S. 226, 232 (1964) ("In the present case the  judgment is not yet final, for it is on direct review in this  Court."). In his appeal, Bowen has alleged a violation of his  Fourteenth Amendment right to be free from cruel and unusual punishment, a federal question.4  The period within  which Bowen could have sought direct review of his conviction therefore included the ninety-day period within which  Bowen could have filed a petition for a writ of certiorari from  the United States Supreme Court. Consequently, the one-year  limitations period in 28 U.S.C. S 2244(d)(1)(A) began to run  on the date that ninety-day period expired.


11
The result we reach today is consistent with the decisions  of both the Second and Third Circuits, see Kapral v. United  States, 166 F.3d 565, 575 (3d Cir. 1999) ("[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."); Ross v. Artuz, 150 F.3d 97, 98 (2d Cir. 1998)  ("Ross's conviction became final [under S 2244(d)] when his  time to seek direct review in the United States Supreme Court  by writ of certiorari expired . . . ." ), and a number of district  courts that have addressed this same issue, see Souch v.  Harkins, 21 F. Supp. 2d 1083, 1084-85 (D. Ariz. 1998);  Moore v. Hawley, 7 F. Supp. 2d 901, 903 (E.D. Mich. 1998);  United States ex rel. Gonzalez v. DeTella, 6 F. Supp. 2d 780,  781-82 (N.D. Ill. 1998); Cox v. Angelone, 997 F. Supp. 740,  744 (E.D. Va. 1998); Alexander v. Keane, 991 F. Supp. 329,  334 n.2 (S.D.N.Y. 1998); Flowers v. Hanks, 941 F. Supp. 765, 770 (N.D. Ind. 1996).


12
In addition, this result is consistent with decisions of the  United States Supreme Court addressing the issue of the finality of state court convictions in the context of retroactive  application of new rules of law. These cases hold that a conviction is not final until the ninety-day certiorari period has  expired. See Caspari v. Bohlen, 510 U.S. 383, 390 (1994) ("A  state conviction and sentence become final for purposes of  retroactivity analysis when the availability of direct appeal to the state courts has been exhausted and the time for filing a  petition for a writ of certiorari has elapsed or a timely filed  petition has been finally denied."); Griffith v. Kentucky, 479  U.S. 314, 321 n.6 (1987) ("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."); see  also Medeiros v. Shimoda, 889 F.2d 819, 825 n.6 (9th Cir.  1989).


13
Applying our holding to the facts of this case, we find  that Bowen's habeas petition was timely. The California  Supreme Court denied Bowen's petition for direct review on  January 22, 1997. The time within which Bowen could have  filed a petition for certiorari from the United States Supreme  Court expired ninety days after that date, on April 22, 1997.  See Sup. Ct. R. 13. Bowen therefore had until April 22, 1998,  to file his habeas petition. Because Bowen filed his habeas  petition on February 10, 1998, over two months before the  one-year limitations period had run, Bowen's petition was  timely.


14
Based on the foregoing, we reverse the district court's order  dismissing Bowen's petition as untimely and remand this case to the district court for further proceedings consistent with  this opinion.


15
REVERSED AND REMANDED.



Notes:


1
 The panel unanimously finds this case suitable for decision without  oral argument. See Fed. R. App. P. 34(a); 9th Cir. R. 34-4.


2
 The Honorable James Ware, District Judge for the Northern District of  California, sitting by designation.


3
 On appeal, the government concedes the timeliness issue, and instead  argues that Bowen's federal habeas petition should be dismissed because  he failed to exhaust available state court remedies before filing the petition. We leave for the district court to consider on remand whether Bowen  satisfied the exhaustion requirement.


4
 The Eighth Amendment applies to the states through the Fourteenth  Amendment. See Tuilaepa v. California, 512 U.S. 967, 970 (1994).


