     Case: 09-20423 Document: 00511292123 Page: 1 Date Filed: 11/12/2010




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

                                                 FILED
                                                                         November 12, 2010
                                     No. 09-20423
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

RONALD BARRY FORRESTER, also known as Ron Forrester; LESLIE JANET
FORRESTER, also known as Leslie Janet Hocker,

                                                   Defendants-Appellants


                    Appeal from the United States District Court
                         for the Southern District of Texas
                              USDC No. 4:08-CV-3215
                              USDC No. 4:08-CV-3217


Before KING, BENAVIDES, and ELROD, Circuit Judges.
PER CURIAM:*
       Ronald Barry Forrester and Leslie Janet Forrester appeal the district
court’s dismissal of their 28 U.S.C. § 2255 motions as time barred.                     Their
motions challenged their 2003 convictions under 18 U.S.C. § 1001. We granted
them certificates of appealability as to “whether the district court erred in
calculating the date that their § 2255 motions were due given that the Forresters



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
     Case: 09-20423 Document: 00511292123 Page: 2 Date Filed: 11/12/2010

                                   No. 09-20423

contend that they timely filed petitions for panel rehearing of their direct
appeals.”
      Under § 2255(f), a one-year limitations period applies to § 2255 motions.
The limitations period does not begin to run until, at the earliest, “the date on
which the judgment of conviction becomes final.” § 2255(f)(1). The Supreme
Court has held that finality attaches when the Supreme Court “affirms a
conviction on the merits on direct review or denies a petition for a writ of
certiorari, or when the time for filing a certiorari petition expires.” Clay v.
United States, 537 U.S. 522, 527 (2003). Under Supreme Court Rule 13(3), the
90-day period to file a petition for a writ of certiorari from the judgment of a
court of appeals ordinarily runs from the date that the court issues an opinion
announcing the ruling. United States v. Petty, 530 F.3d 361, 365 (5th Cir. 2008).
However, if a petition for rehearing is timely filed in the appeals court by any
party, then the time for all parties to file a certiorari petition runs from the date
of the denial of rehearing. S UP. C T. R. 13(3).
      In this case, we affirmed the Forresters’ convictions on July 17, 2007.
United States v. Forrester, 234 F. App’x 320, 320 (5th Cir. 2007). Less than 14
days later, Ronald Forrester timely filed a petition for panel rehearing on July
30, 2007. See F ED. R. A PP. P. 40(a)(1). We denied his petition on August 14,
2007, and the time period for all parties to seek certiorari did not end until 90
days thereafter on November 13, 2007. See S UP. C T. R. 13(3); see also S UP. C T.
R. 30(1) (excluding the last day of the period if it is a federal holiday). The
Forresters timely filed their § 2255 motions less than one year after that date on
October 28, 2008. See Clay, 537 U.S. at 527.
      Accordingly, we REVERSE the district court’s dismissal of the Forresters’
§ 2255 motions as time barred and REMAND their cases to the district court for
further proceedings.




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