* The Honorab le Avern Cohn, United States Distri ct Judge for the

Eastern District

of Michigan, sit

ting by designation.
1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Six

th Circuit Rul e 206

ELECTRO NIC CIT

ATION: 2004 FED App . 0042P (6th C ir.) File Name: 04a00 42p.06



### UNITED STATES COURT OF APPEALS

FOR THE SIXT H CIR CUIT

_________________
M ANUE L S ANCHEZ

C ASTEL LANO , Petitione r-Appell ant,

v.

U NITED S TAT ES OF A MERICA , Respondent-Appellee. X

- - - -
> , - - - - N No. 02-5081

Appeal from the United States District Court for the We stern Dis trict of T ennesse e at Memphis. Nos. 99-0 2510; 91-2 0047—Julia S. Gibbons,

District Judge. Argued: December 9, 2003 Decided and Filed: February 9, 2004 Before: ROGERS and COOK, Circuit Judges; COHN,

District Judge. * 2 Sanchez-Castellano v. United States No. 02-5081

_________________ COUNSEL

ARGUE D: Robert C. Brooks, Memphis, Tennessee, for App ellan t. Timothy R. DiScenza, ASSISTANT UNITED STATES ATT ORNEY, Me mphis, Tennessee, for Appellee. ON BRIE F: Robert C. Brooks, Memphis, Tennessee, for Appellan t. Timot hy R. DiScenza, ASSI STANT UNITED STATES ATTORNEY, Memphis, Tennessee, for Appellee.
ROGERS, J., delivered the opinion of the court, in w h ich COOK, J., joined. COHN, D. J. (pp. 9-10), delivered a separate dissenting opinion.

_________________ OPINION

_________________ ROGERS , Circuit Jud

ge. Appe llant

Manuel Sa

nche zCastellano appeals the denial for untimeliness of his motion to vacate his sentence under 28 U.S.C. § 2255. The issue presented in his appe al is whet

her, for a feder al d efendant who did not seek a direct appeal, the one-yea rstatute of limitations for

§ 2255 ca ses start s ten days or for ty day s after entr y of th e judgm ent of

convi ction . The t ime fo r fili ng a direct appeal is ten day

s after e ntry of judgm ent, but pursuant to Federal Rule of Appellate Procedure 4(b )(4) a federal defendant can see k an extens ion of time

—for excu sable neglect or good cause—up to the fortieth day after en tr y o f judg ment

. Sanchez-Castellano maintains that the judgment did not become f

ina l until the l ast possib le opport unity to seek review of his sentence had passed. He ur g es us to find that Rule 4(b)(4) provided an existing avenue for relief after the ten-day f

iling deadline had

passed, and

that therefore the judgment in his case did not

be co me fi na l u nt il fo rt y da ys afte r it was ent

ered. B ecause

we reje ct this sta

tu tor y interpretation

as an unwarranted

acr oss-the-board extensionNo. 02-5081 Sanchez-Castellano v. United States 3

1 This matt er was before Judge Jerome T urner during the guil ty pl ea and sentencing, but was transf erred to Judge Julia Sm ith Gib bon s prio r to adjudication of the §2255 motion.

2 The ten-da y perio d follo wing M ay 13 , 199 8, end ed o n M ay 23 , a Satur day. The following M ond ay, M ay 25 , 199 8, was a fede ral holid ay. See Fed . R. Ap p. P roc. 2 6(a)

. of the statute of limitations for § 2255 motions, we affirm the judgment of the district court.

InFebruary

1991, Sanchez-Castellano was indicted on one count of con spira cy to poss ess 16 00 ki logr ams of cocaine with intent to distribute and o ne c ount of possession of 351 kilogra ms of cocaine with intent to distribut e . SanchezCastellano succeeded in evading arr est until January 1995. He subsequently esca

ped f ro m custody and eluded law enforcement

officers for another two y ears. After he was returned to cu st od y, Sanchez-Castellano and the Government reached a plea a greement, purs

uant to which he pled gu

ilty to the conspiracy

count and to one count of escape. The district court imposed a sentence of 292 months impri s onment and fi ve ye ars supe

rvised r elease and ente red the j udgmen

t o n May 13, 1998. 1 Under

Fed. R. App . P. 4(

b)(1 )(A) , Sanc

hezCastella no had unt

il May 26, 1998, t

o file a notice of appeal with the distri ct court

. 2 Sanchez- Castella no did not a

ppeal,
nor did he move for an extension of time to appeal pursuant to Fed. R. App. P. 4(b)(4).

Sanchez-Castellano is deeme d to have filed his § 2255 motion on June 6, 1999, when he presented it to prison authoriti es. See Houston v. Lack , 487 U.S. 266, 270 (1988). His motion raised three g rounds for vacating his sentence. First, he alleged that his attorney promised to file a direct appeal but fai le d to do so. Se cond, he claimed t

hat his attorney threatened to wi thdraw if Sanchez-Castellano did not plea d gui lty a

nd that the

attorne y a ssured hi

m that he would only be sentenced to ten to twelve y ears if h e tookthe plea agreemen t. T hird, Sanc

hez-Caste llano main

tained that his 4 Sanchez-Castellano v. United States No. 02-5081

3 The district co urt held an evi denti ary hear ing on th e § 2255 moti on to determine whet

her t he st atut e of l imi tat ions peri od shoul d be tol led by tri al couns el’ s al lege d dis regar d of instruct ions to appeal. On the pos sibility that t

he distri ct court would ult imately deter mine that t

he § 2255 motion was timely (it did not), the court als o permitted testi mony on the other issues. attorney was u nsur e as to whether Sanchez-Castellano “was beingsentenced correctly under the gui delines.”

SanchezCa stel lano’s newly appointed c ounsel supplemented the § 2255 motion, adding a claim that Sanchez-Castellano’s sentenc e violated Apprendi v. New Jersey , 530 U.S. 466 (2000).

The district court , how ever , concluded th at Sa nche zCastellano failed to

file his § 2 255 motion on tim e. As Sanchez-Castellano’s sentenc e did not se ek direct a ppeal of his sentenc e, the jud

gment of convicti on beca

me final, according to the district court, on May 26, 1998. The district court also noted, however, that Sanchez-Castellano’s motion “landed in between two possible finality date s created by Fed. R. App. P. 4(b)”—the ten day period created by

Rule 4(b)(1) and the forty day

period cr eated by the addition of an extension for excu sable neglect under Rule 4(b)(4). The districtcourt resolved this question in favor of t he ten da

ys: “Under a straightforward application of § 2255, def endant’s original motion is untimely and barred by t he statute of limitations for filing a motion under § 2255.” The district court also foun d that ther

e was no b asis for a

n equitab le tolling of the statute of limitations.

The dist r ict court further indicated how it would have dec idedt he merits of Sanchez-Castellano’s claims, had the § 2255 motion been filed on time. On the basis of conflicting te st im on y, 3 the distri c t courtfound on the preponderance of the evid en ce that Sanchez-Castellano did not direct his lawy er to file an a

ppeal. Also upon considera tion of the

credibi lity of witnesse s before

it, the district court “found the record devoid of an y proof that [ Sanchez-C aste llano ] w as coercedNo. 02-5081 Sanchez-Castellano v. United States 5

4 On thi s pur ely

leg al i ssu e we ha ve f

ound no c ase l aw to g uide us

. In an unr epo rted d ecision , the Fo urth C ircuit held t hat a § 2255 moti on
was untime ly even g iving de fenda nt the benefi t of t he ten- day appeal p eri od plus the thirty-day ex cusab le negle ct per iod in F ed. R . A pp. P

. 4(b). Unit ed S tates v. Walke r, No. 99-684 7, 1999 U .S.App. LEX IS 22478, at * 2 (4th

Cir. Aug. 31, 1999)

. Th e op inion thu s mere ly acknowledged the poss ibility of the fo rty-day ar gume nt. Th e par ties cite

no other cases on point. The distri ct court cit ed two cases applying a tenday rul e where § 2255 would have been lat e under a f orty- day rul e a s well. United States v. No ble , No. 97- 6354, 1998 U.S. App. LEXIS 18370 (10 th Cir. A ug. 10 , 199 8); Un it ed S tat es v. Concepci on , No. 98- 2372, 1999 U .S. Dist. LEX IS 5125, at *6 (E.D. Pa. Ap r. 19, 1999). into pleading gui lty .” The district court further concluded that Sanchez- Castella

no’s Apprendiclaim was without me rit because the se ntenc ing ju dge had not “determined an amount of drugs or any

other sentencing fa cto r that produced a sentence bey

ond the ba se maximum penalty contemplate d by the offense of convict ion”; the sentencing judge moreover had “not relied on any f

a ct outside the plea a

greement to determine drug quantity

at sentencing.”

The district court denied a certificate of appeala bility . This court grante d a cert

ificate of appea lability on the issue o f whether Sanchez- Castellano’ s § 2255 motion was timely filed within the applicable one-y ear limitations period.

Alth ough reasona

ble judg es might

d if fer, the language

of § 2255 appe ars cle arly to require that, for statute of limitations purposes, an una ppealed district court judgment of
c onvictionbecomes “final” ten day s after the entry

o f judgmen t, at least where the defendant has not actually sought
anextension of appeal time for goo d cause or excusable neglec t. 4

The language of § 2255 provid es that, e xcept in circumstances not present or asserted here, the one-y ear statute of limitations for § 2255 motions begins to runon “the date on which the judgment of conviction becomes final.” 28 U.S .C. § 2 255. As a general matter, c onviction s become 6 Sanchez-Castellano v. United States No. 02-5081

final upon conclusion of direct review. See United States v. Cottage , 307 F.3d 494, 498 (6th Cir. 2002). When a federal criminal defendant takes a direct appeal to the c ourt of appeals , his judgment of conviction becomes final for § 2255 purposes upon the expiration of the 90-day pe riod in which the de fe ndant could have petitioned for certiorari to the Supreme Court, even when no certiorari petition has been file d. C lay v. United States , 537 U.S. 522, 532 (2 003). By parity of reas o ning, when a federal criminal defenda nt does notappeal t

o the cour t of appe als, the judgment becomes final uponthe expiration of the period in wh ich th e defendant could have appealed to the court of appea ls, even when no notice of appea

l was file d. In

mo st cases, that period is ten day s, pursuant

to Fed. R. App. P. 4(b )(1). However, inthose
cases where “ excusable

neglec t or good cause” is shown, the districtcourt may

extend the appeal time an ad ditional th

irty days. Fe d. R. App. P. 4(b)(4).

There are three way

s in which the possibility of a Rul e 4(b)(4) extension c ould aff ect a de terminat io n o f finalit

y under § 2255. Fi

rst, the te n-da y r ule could be unifor

mly applied, regar

dless of whether or not a Rule 4(b)(4) motion has been made or granted. Second, the ten-day r ule could be applied except in those cases in which an extensi on is sought and granted within the forty days, in which c ase an unappealed

judgmen t of convi ction wou

ld be fin al at t

he expiration of the extended t ime. Thir d, a fort y- day rule cou ld b e uniformly

applied, regar

dless of w

hether or not a Rul e 4(b)(4) motion has been made or granted. I t is not necessary to decide between the first and second interpr etations in th e instantcase. T

his is because Sanchez-Castellano did not seek
or obtain an extension. In ord er torule for S anchezCastellano, we must accept the third interpretation, andthat is what Sanc

hez-Caste llano urg es upon us on this appeal. The argument however turns the exception into the rule, and is ultimately unpersuasive.

To adopt the third

interpretation would delay the start of the limitations period until thirty day s later than

finality actuallyNo. 02-5081 Sanchez-Castellano v. United States 7

5 We do not decide t

he ques t ion o f whethe r the jud gme nt again st a defendant who a pplie s for, and receives, a Rule 4(b)(4) extension of the fil ing deadline , but fai ls ul timat ely t o seek a di rect appeal , becomes f inal forty da ys after entr y. occurs in most cas es. This i s not con sistent with the congr essional intent to se t a one-y

ear, as opposed to a thirteen-month, statute of

limitations

. Moreover, there are no equitabl e considerations militating in favor of the forty -day interpretation. Under all three po ssi ble interpretations the determinatio n of w hen the judgment was final is made, for statute of limitations purposes, retrospectively a nd long after the date actually

occurred. We must mer

ely determine which date corres

ponds bes t with the s tatutory langua ge. At l east in the absence of

an actual district

court determination of good
cause or excusable neglect, that date is ten days after

the entry of judgment. 5

Sanchez-Castellano cont ends that, because he had the opportuni ty to seek Rule 4(b)(4) relief, the judg ment ag ainst him should have been

considered pending during the time that he could have, b ut di d not, see k relief . He comp ares this

to the practice of considering a judg ment affirmed

onappeal as pending unt il the time to seek a writ of certiorari in the Supreme Court has expired. Sanchez-Castellano po ints out that a conviction is not final for § 2255 purp oses until the time for seeking certiorari has e xpired, when the defendant does not actually see

k certiorari.

The time period for seeking certiorari, howe ver, is more
accu ratel y compared with the standard ten day filing period for a direct a

ppeal, a nd not the e

xtension for excusab le neglec t. The ten-day

period for filing an appeal and the ninety-day

p er iod for f

iling a c ertiora

ri petition are bot

h periods during which the defendant is permitted to file as of right. The thirty-da

y extension pe

riod, in c ontrast, is only granted upon request to thedistrict court, and then only on a showing that most lit

igants pr esumably cannot make —that 8 Sanchez-Castellano v. United States No. 02-5081

6 The dissent maintains that this will no t be the case b ecau se finality will come for def

endants seekin g reli ef at the t ime the dist

rict court r ules

on the motion. Such a rule, however, would benefit those defendants who fail to seek an ex tensi on under Rule 4 (b)(4 ) by givin g them the full forty days w hile sho rtchan ging tho se de fenda nts who act dilige ntly. there has been

good ca use or exc

usable ne glect. While it makes sense to t

oll the limitations period so thata defendant may file a pe tition that he is leg ally

entitled to file, it does not make sense to toll it so thathe may seek permission from the district court to file a late notice for exceptional reasons.
Moreover, under Sanchez-Castellano’s c onstruct ion, all defenda nts would be entitled to this extended period of time, regar dless of whether

the distri ct court

found excu sable neglec t. Suppose he filed a motion to e xtend the filing deadline under Rule 4(b)(4) on May 30, 1998, seventeen

da ys after t he entry of

the judgment. Then, three day s later, the districtcourt denied the motion, finding no evidence of good
cause or excusable

neglec t. If Sa nchez-Ca stellano i s corre ct, for purposes of

the § 2255 limitations

period, t he judg ment in his case would become final twenty days afte r his last avenue of direct review had closed. 6 It is u nlikely tha t Congre ss intended such an outcome.

For the foregoing reasons, a

n u n appealed federal criminal judgment becomes final ten day s after it is entered, for purposes of the § 2255 statut e of limitations, at least where there ha s been no district court extension of appeal time for good cause or excusable

neglect. The judgment of the district court is AFFIRMED.No. 02-5081 Sanchez-Castellano v. United States 9

______________ DISSENT

______________ COHN, Distri ct Jud ge, dissenting. Because I believe that the statute of

limitations

should sta

rt to run f orty day s a ft er the entry of the jud gment of convicti on, I

respectfully

dissent. Iamconvinced that the better view is to include the thirty- day
excusa ble neg lect

peri od in d

eter mining wh en Sa

nche zCastell ano’ s conviction became final since he did not file a notice of appeal. Whether or not a motion for extension of time would

have been be granted is irreleva nt in this case. Whatis releva

nt is that a

n extension

of time is ava ilabl e

. Only when the time for seeking an appeal has be enexhausted
can the convictionbe said to be “final” and the statute of limitations begin to

run. The fact tha t Sanchez- Castella

no did notfile a motion fo r an extensi on of time i s also irr elevant

. Whatis also relevant is the fact that an avenue for a ppeal was still available to him for forty day s after the judgment was entered. 28 U.S.C. § 2 255 simply states tha

t the statu

te o f limitations begins to run

on “the date on which

the judgment of convictionbecomes final.” The statute offers no guidance
as to the me aning of “f

inal.” Since the statute is silent, the choice of a time p eriod is le ft to the Co urt . I see no good
reason not to accept Sanchez-Castellano’s view that th e f or tyday time period is the appropriate one. No purpose is to be served by l imiting the time per

iod to ten day

s, except t o limit the number of habeas petitions which are co nsi dered on the merits. Under the circumstances here and in like c ases, I beli eve that “final” shoul d be inter preted t o mean when th e opportunity for further

review has complete ly

expired. T

his does not occur until forty day s after the judgment of conviction is entered.

Nor do I b e lieve that adopting this approach will, as the majo rity suggests, entitle all defendants “to this extended period of time, regardless of

whether the district court found excusable neglec t.” The ma

jority say s that if San

chez

10 Sanchez-Castellano v. United States No. 02-5081

Castellano had filed a

motion to exte

nd timeto file an appeal under Rule 4(b)(4) seventeen day s after the entry

of judgment of conviction and the district court denied it th re e d ays later, then“the judgment would become final twenty day s after h

is last avenue of

direct review

had close d.” This is

not entire ly correct

. The judgment would not be final twenty days afte r the last avenue of

direct review had closed; rather, it would be final when the last a

venue for direct r evi ew had closed, i.e

. when the district court denied the motion. At that point, there is no longer

an available avenue for seeking anappeal. In any event, this issue is not before us. In t his case, Sa nche zCastellano’s avenue for appe al wa s foreclosed, and consequentl y

the judgment of conviction became “final,” when the forty

days expired.