                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-8-2006

USA v. Wall
Precedential or Non-Precedential: Precedential

Docket No. 04-2280




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006

Recommended Citation
"USA v. Wall" (2006). 2006 Decisions. Paper 534.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/534


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2006 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                                             PRECEDENTIAL

         UNITED STATES COURT OF APPEALS
              FOR THE THIRD CIRCUIT
                   ___________

                   Nos. 04-2280, 05-2019
                       ___________

             UNITED STATES OF AMERICA
                        v.
             PARRIS WALL, JR. a/k/a PETEY

                                Parris Wall, Appellant
                        ___________

      On Appeal from the United States District Court
                 for the District of Delaware
                  (D.C. No. 99-cr-00033-4)
     District Judge: The Honorable Joseph J. Farnan, Jr.
                         ___________

                 ARGUED APRIL 26, 2006

       BEFORE: SCIRICA, Chief Judge, and
  NYGAARD, Circuit Judge., and YOHN,* District Judge.

                   (Filed: August 8, 2006)



*Honorable William H. Yohn, Jr., Senior District Judge for the
United States District Court for the Eastern District of
Pennsylvania, sitting by designation.
                          ___________

David R. Fine, Esq.(Argued)
Kirkpatrick & Lockhart
Nicholson Graham
17 North Second Street, 18th Floor
Harrisburg, PA 17101
       Counsel for Appellant

Richard G. Andrews, Esq.(Argued)
Office of the United States Attorney
1007 Orange Street, Suite 700
Wilmington, DE 19899
       Counsel for Appellee

                          ___________

                  OPINION OF THE COURT
                       ___________

NYGAARD, Circuit Judge.

       This appeal presents a question of appellate procedure.

Specifically, it implicates our practice of permitting petitions for

rehearing en banc to be filed “out of time” and recalling our

mandate so that these petitions may be considered by the full

court. The issues here can be reduced to this inquiry: Does an

                                 2
untimely petition for rehearing en banc become timely when we

permit its filing “out of time,” thus starting the clock anew for

habeas petitions? We conclude that it does, and hence, will

reverse the District Court.

                               I.

       Appellant Parris Wall was convicted of various drug

offenses in the United States District Court for the District of

Delaware.    He was originally sentenced to 180 months’

imprisonment and five years of supervised release. On direct

appeal, we affirmed his conviction, but vacated the term of

supervised release and remanded for re-sentencing. On June 21,

2001, the District Court re-sentenced Wall to three years’

supervised release. Wall appealed again. The Government filed

a Motion for Summary Affirmance which we granted on

September 27, 2001. The Clerk of Court issued our mandate in

the case on October 19, 2001. On December 15, 2001, before

                               3
expiration of the ninety-day time period to file a petition for

certiorari, Wall filed a document entitled “Motion for rehearing

en banc or consideration of direct review” which our clerk’s

office appropriately construed as a motion for leave to file a

petition for rehearing out of time.

       On April 1, 2002, our late colleague, Judge Carol

Mansmann granted the motion to file a petition for rehearing out

of time and ordered that the petition be circulated to the full

court. This was in full accord with our common practice of

showing leniency to an aggrieved party who wants the full court

to rethink a panel’s order and who files a petition within a

reasonable time.1 On April 3, 2002, the Clerk’s Office issued

an order recalling our mandate of October 19, 2001. On April

1.
 We generally consider a motion to file a petition for rehearing
“out of time” reasonable when the request is made within the
ninety day period for filing a petition for writ of certiorari.
Likewise, we generally consider a delay unreasonable when the
motion is made after the ninety-day period has expired.

                                4
22, 2002, the Petition for Rehearing was denied. On July 1,

2002, Wall filed a petition for writ of habeas corpus in the

District Court. After receiving notice required by United States

v. Miller, 197 F.3d 644 (3d Cir. 1999), Wall withdrew his

petition.

       On January 15, 2003, Wall filed a second § 2255

petition.   The Government argued that this petition was

untimely. The District Court agreed and dismissed it.

                               II.

       In determining that Wall’s petition for habeas corpus

relief was untimely, the District Court correctly noted that §

2255 requires petitions to be filed within one year after the date

on which the direct appeal from the criminal conviction

becomes final. The District Court reasoned that Wall’s petition

for rehearing was not timely when originally filed and opined

that the ninety-day period in which he could seek certiorari

                                5
began on September 27, 2001, the date we summarily affirmed

his conviction and re-calculated sentence. Using this date as a

beginning reference, the District Court concluded that Wall was

required to have his habeas petition filed no later than December

26, 2002. Hence, it dismissed his habeas petition, which was

filed on January 15, 2003.2

2.
 When the District Court dismissed Wall’s habeas petition, it
noted that we granted a certificate of appealability in United
States v. Bendolph. The District Court noted that:
       Although Bendolph involved circumstances in
       which the Court sua sponte raised the limitations
       period, the Third Circuit has granted a certificate
       of appealability to consider the issue of whether,
       assuming the court had the authority to sua sponte
       raise the limitations period, the defendant’s §
       2255 motion should have been deemed timely in
       light of the Supreme Court having accepted for
       filing his untimely petition for certiorari review.
       Although the circumstances in Bendolph are not
       identical to the circumstances in this case, the
       court believes they are sufficiently analogous to
       justify the granting of a certificate of
       appealability. Accordingly, the court will grant
       defendant a certificate of appealability so that he
                                                    (continued...)

                                6
                               III.

        It is not disputed that following the normal course of

events, Wall’s petition for rehearing en banc was filed out of

time. Fed. R. App. P. 40(1) provides that petitions for rehearing

in civil cases where the United States is a party (as here) must

be filed within 45 days after the entry of judgment. We entered

judgment in his case on September 27, 2001 and he filed a

petition for rehearing on December 15, 2001 – clearly longer

than forty-five days. Nonetheless, as is our traditional practice,

we deemed his petition as a “motion to file petition for rehearing

out of time,” and granted it. As noted, the petition for rehearing

was denied on April 22, 2002.

2.
  (...continued)
         may pursue this issue before the Third Circuit.

The opinion in Bendolph did not address the issue that caused
the District Court in this case to grant a certificate of
appealability. See United States v. Bendolph, 409 F.3d 155, 169
(3d Cir.2005) (en banc).

                                7
         28 U.S.C. § 2255 requires that habeas petitions be filed

within one year after a judgment becomes final. Wall argues

that his appeal was not final until ninety days after we denied his

petition for rehearing, making his appeal final on July 21, 2002.

He argues that since his habeas petition was filed on January 15,

2003, he is well within the one-year statute of limitations. We

agree.

         The Supreme Court’s precedent is clear with respect to

certiorari petitions — the filing of a petition for rehearing stops

the ninety-day clock. Here, however, Wall did not file a petition

for writ of certiorari, but instead filed a petition for writ of

habeas corpus pursuant to 28 U.S.C. § 2255. Because the

procedural posture here with respect to habeas petitions is not

materially different from petitions for writs of certiorari, a look

at Supreme Court practice with respect to timeliness, finality,

and tolling in that context is instructive.

                                 8
       Supreme Court Rule 13.3 requires that a petition seeking

a writ of certiorari must be filed within ninety days of the

“denial of a timely petition for rehearing.” If a defendant does

not file a petition for writ of certiorari, the one-year habeas

clock begins to run ninety days after the court of appeals denies

a petition for rehearing.

       Supreme Court Rule 13.3 provides that:

       The time to file a petition for writ of certiorari
       runs from the date of entry of the judgment or
       order sought to be reviewed, and not from the
       issuance date of the mandate (or its equivalent
       under local practice). But, if a petition for
       rehearing is timely filed in the lower court by any
       party, the time to file the petition for a writ of
       certiorari for all parties (whether or not they
       requested rehearing or joined in the petition for
       rehearing) runs from the date of the denial of the
       petition for rehearing or, if the petition for
       rehearing is granted, the subsequent entry of
       judgment.3

3.
      The Supreme Court revised this rule, effective May 2,
2005. As it now reads, the rule indicates that:
                                                (continued...)

                               9
        In Hibbs v. Winn, the Supreme Court further clarified this

rule by commenting that:

        A timely rehearing petition, a court’s appropriate
        decision to entertain an untimely rehearing
        petition, and a petition filed at the court’s
        direction, on its own initiative, . . . share this key
        characteristic: all three raise the question whether

3.
  (...continued)
         The time to file a petition for a writ of certiorari runs
         from the date of entry of the judgment or order sought to
         be reviewed, and not from the issuance date of the
         mandate (or its equivalent under local practice). But if a
         petition for rehearing is timely filed in the lower court by
         any party, or if the lower court appropriately
         entertains an untimely petition for rehearing or sua
         sponte considers rehearing, the time to file the petition
         for a writ of certiorari for all parties (whether or not they
         requested rehearing or joined in the petition for
         rehearing) runs from the date of the denial of rehearing
         or, if rehearing is granted, the subsequent entry of
         judgment.

(emphasis added). This most recent revision to the rule only
reenforces our conclusion that an untimely petition for rehearing
becomes timely when we permit its filing and consideration.
Neither Hibbs v. Winn 542 U.S. 88, 124 S.Ct. 2276, 2284 (2004)
 nor Rule 13.3 discuss when it is appropriate to consider an
untimely petition for rehearing.

                                  10
       the court will modify the judgment and alter the
       parties’ rights.

542 U.S. 88, 96, 124 S. Ct. 2276, 2284 (2004) citing Missouri

v. Jenkins, 495 U.S. 33, 46, 110 S. Ct. 1651, 1664 (1990) (“A

timely petition for rehearing operates to suspend the finality of

the court’s judgment, pending the court’s further determination

whether the judgment should be modified so as to alter its

adjudication of the rights of the parties.”).4

       The Supreme Court has also indicated that, even though

a petition for rehearing was filed late, if a court of appeals grants

permission to file, it becomes timely and the ninety-day clock

for filing petitions for writs of certiorari is reset. See Young v.

Harper, 520 U.S. 143, 117 S.Ct. 1148, 1151 (1997) (Although

petition for rehearing was filed two days late, the Court of


4.
 The District Court did not have the benefit of the clarification
of Rule 13.3 or the Court’s decision in Hibbs when it issued its
decision in this case.

                                 11
Appeals for the Tenth Circuit granted the petitioners leave to file

a late petition for rehearing and suggestion for rehearing en banc

as it had authority to do. See Fed. R. App. P. 40(a). Thus the

Court tolled the running of the ninety-day period for filing a

petition for writ of certiorari.).

       As the Supreme Court has further instructed, “it has been

the consistent practice of the Court to treat petitions for

rehearing timely presented to the Court of Appeals as tolling the

start of the period in which a petition for certiorari must be

sought until rehearing is denied or a new judgment is entered on

rehearing.” Jenkins, 495 U.S. at 43, 110 S.Ct. at 1660.5 Simply

stated, while a petition for rehearing is pending there always


5.
 However, the Supreme Court has held that it is inappropriate to
hear an untimely petition for the purpose of resetting the clock
to file for a writ of certiorari, Missouri v. Jenkins, 495 U.S. at
46, or to evade the requirements of 28 U.S.C. § 2244 for second
or successive petitions. See Calderon v. Thompson, 523 U.S.
538, 118 S. Ct. 1489 (1998).

                                 12
exists the possibility that it will be granted, and there is no final

judgment to review.

       Wall’s procedural position before us is not different.

Here too, once we granted permission for Wall to file his

petition for rehearing late, it became timely. Once we gave him

permission to file his petition out of time and he filed it, our

judgment could not be considered final until we denied his

petition. While his petition for rehearing was pending, there

was no judgment to be challenged either in the Supreme Court

by a petition for a writ of Certiorari, or in an inferior court by

habeas review. Our judgment in Wall’s appeal was not final

until ninety days after we denied his petition for rehearing. We

hold that when we grant permission for an aggrieved party to

file a petition for rehearing out-of-time, the one-year calendar

for filing §2255 petitions starts anew ninety days after the order

denying the petition is filed. Because Wall’s petition was

                                 13
timely, we will reverse and remand the cause to the District

Court with instructions to reinstate his petition, and to review it

on the merits.




                                14
