*

The Honorable Avern Cohn, United States District Judge for the

Eastern District of Michigan, sitting by designation.

1

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

ELECTRONIC CITATION: 2004 FED App. 0042P (6th Cir.)

File Name: 04a0042p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

MANUEL SANCHEZCASTELLANO,

 Petitioner-Appellant,

v.

UNITED STATES OF AMERICA,

Respondent-Appellee.

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No. 02-5081

Appeal from the United States District Court

for the Western District of Tennessee at Memphis.

Nos. 99-02510; 91-20047—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

ARGUED: Robert C. Brooks, Memphis, Tennessee, for

Appellant. Timothy R. DiScenza, ASSISTANT UNITED

STATES ATTORNEY, Memphis, Tennessee, for Appellee.

ON BRIEF: Robert C. Brooks, Memphis, Tennessee, for

Appellant. Timothy R. DiScenza, ASSISTANT UNITED

STATES ATTORNEY, Memphis, Tennessee, for Appellee.

ROGERS, J., delivered the opinion of the court, in which

COOK, J., joined. COHN, D. J. (pp. 9-10), delivered a

separate dissenting opinion.

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OPINION

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ROGERS, Circuit Judge. Appellant Manuel SanchezCastellano appeals the denial for untimeliness of his motion

to vacate his sentence under 28 U.S.C. § 2255. The issue

presented in his appeal is whether, for a federal defendant

who did not seek a direct appeal, the one-year statute of

limitations for § 2255 cases starts ten days or forty days after

entry of the judgment of conviction. The time for filing a

direct appeal is ten days after entry of judgment, but pursuant

to Federal Rule of Appellate Procedure 4(b)(4) a federal

defendant can seek an extension of time—for excusable

neglect or good cause—up to the fortieth day after entry of

judgment. Sanchez-Castellano maintains that the judgment

did not become final until the last possible opportunity to

seek review of his sentence had passed. He urges us to find

that Rule 4(b)(4) provided an existing avenue for relief after

the ten-day filing deadline had passed, and that therefore the

judgment in his case did not become final until forty days

after it was entered. Because we reject this statutory

interpretation as an unwarranted across-the-board extension
No. 02-5081 Sanchez-Castellano v. United States 3

1

This matter was before Judge Jerome Turner during the guilty plea

and sentencing, but was transferred to Judge Julia Smith Gibbons prior to

adjudication of the §2255 motion.

2

The ten-day period following May 13, 1998, ended on May 23, a

Saturday. The following Monday, May 25, 1998, was a federal holiday.

See Fed. R. App. Proc. 26(a). 

of the statute of limitations for § 2255 motions, we affirm the

judgment of the district court. 

In February 1991, Sanchez-Castellano was indicted on one

count of conspiracy to possess 1600 kilograms of cocaine

with intent to distribute and one count of possession of 351

kilograms of cocaine with intent to distribute. SanchezCastellano succeeded in evading arrest until January 1995.

He subsequently escaped from custody and eluded law

enforcement officers for another two years. After he was

returned to custody, Sanchez-Castellano and the Government

reached a plea agreement, pursuant to which he pled guilty to

the conspiracy count and to one count of escape. The district

court imposed a sentence of 292 months imprisonment and

five years supervised release and entered the judgment on

May 13, 1998.1 Under Fed. R. App. P. 4(b)(1)(A), SanchezCastellano had until May 26, 1998, to file a notice of appeal

with the district court.

2

 Sanchez-Castellano did not appeal,

nor did he move for an extension of time to appeal pursuant

to Fed. R. App. P. 4(b)(4).

Sanchez-Castellano is deemed to have filed his § 2255

motion on June 6, 1999, when he presented it to prison

authorities. See Houston v. Lack, 487 U.S. 266, 270 (1988).

His motion raised three grounds for vacating his sentence.

First, he alleged that his attorney promised to file a direct

appeal but failed to do so. Second, he claimed that his

attorney threatened towithdraw if Sanchez-Castellano did not

plead guilty and that the attorney assured him that he would

only be sentenced to ten to twelve years if he took the plea

agreement. Third, Sanchez-Castellano maintained that his

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

3

The district court held an evidentiary hearing on the § 2255 motion

to determine whether the statute of limitations period should be tolled by

trial counsel’s alleged disregard of instructions to appeal. On the

possibility that the district court would ultimately determine that the

§ 2255 motion was timely (it did not), the court also permitted testimony

on the other issues.

attorney was unsure as to whether Sanchez-Castellano “was

being sentenced correctly under the guidelines.” SanchezCastellano’s newly appointed counsel supplemented the

§ 2255 motion, adding a claim that Sanchez-Castellano’s

sentence violated Apprendi v. New Jersey, 530 U.S. 466

(2000). 

The district court, however, concluded that SanchezCastellano failed to file his § 2255 motion on time. As

Sanchez-Castellano’s sentence did not seek direct appeal of

his sentence, the judgment of conviction became 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 dates created by Fed.

R. App. P. 4(b)”—the ten day period created by Rule 4(b)(1)

and the forty day period created by the addition of an

extension for excusable neglect under Rule 4(b)(4). The

district court resolved this question in favor of the ten days:

“Under a straightforward application of § 2255, defendant’s

original motion is untimely and barred by the statute of

limitations for filing a motion under § 2255.” The district

court also found that there was no basis for an equitable

tolling of the statute of limitations. 

The district court further indicated how it would have

decided the merits of Sanchez-Castellano’s claims, had the

§ 2255 motion been filed on time. On the basis of conflicting

testimony,

3

 the district court found on the preponderance of

the evidence that Sanchez-Castellano did not direct his lawyer

to file an appeal. Also upon consideration of the credibility

of witnesses before it, the district court “found the record

devoid of any proof that [Sanchez-Castellano] was coerced
No. 02-5081 Sanchez-Castellano v. United States 5

4

On this purely legal issue we have found no case law to guide us.

In an unreported decision, the Fourth Circuit held that a § 2255 motion

was untimely even giving defendant the benefit of the ten-day appeal

period plus the thirty-day excusable neglect period in Fed. R. App. P.

4(b). United States v. Walker, No. 99-6847, 1999 U.S.App. LEXIS

22478, at *2 (4th Cir. Aug. 31, 1999). The opinion thus merely

acknowledged the possibility of the forty-day argument. The parties cite

no other cases on point. The district court cited two cases applying a tenday rule where § 2255 would have been late under a forty-day rule as

well. United States v. Noble, No. 97-6354, 1998 U.S. App. LEXIS 18370

(10th Cir. Aug. 10, 1998); United States v. Concepcion, No. 98-2372,

1999 U.S. Dist. LEXIS 5125, at *6 (E.D. Pa. Apr. 19, 1999).

into pleading guilty.” The district court further concluded

that Sanchez-Castellano’s Apprendi claim was without merit

because the sentencing judge had not “determined an amount

of drugs or any other sentencing factor that produced a

sentence beyond the base maximum penalty contemplated by

the offense of conviction”; the sentencing judge moreover had

“not relied on any fact outside the plea agreement to

determine drug quantity at sentencing.” 

The district court denied a certificate of appealability. This

court granted a certificate of appealability on the issue of

whether Sanchez-Castellano’s § 2255 motion was timely filed

within the applicable one-year limitations period.

Although reasonable judges might differ, the language of

§ 2255 appears clearly to require that, for statute of

limitations purposes, an unappealed district court judgment of

conviction becomes “final” ten days after the entry of

judgment, at least where the defendant has not actually sought

an extension of appeal time for good cause or excusable

neglect.4 

The language of § 2255 provides that, except in

circumstances not present or asserted here, the one-year

statute of limitations for § 2255 motions begins to run on “the

date on which the judgment of conviction becomes final.” 28

U.S.C. § 2255. As a general matter, convictions 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 court of

appeals, his judgment of conviction becomes final for § 2255

purposes upon the expiration of the 90-day period in which

the defendant could have petitioned for certiorari to the

Supreme Court, even when no certiorari petition has been

filed. Clay v. United States, 537 U.S. 522, 532 (2003). By

parity of reasoning, when a federal criminal defendant does

not appeal to the court of appeals, the judgment becomes final

upon the expiration of the period in which the defendant

could have appealed to the court of appeals, even when no

notice of appeal was filed. In most cases, that period is ten

days, pursuant to Fed. R. App. P. 4(b)(1). However, in those

cases where “excusable neglect or good cause” is shown, the

district court may extend the appeal time an additional thirty

days. Fed. R. App. P. 4(b)(4). 

There are three ways in which the possibility of a Rule

4(b)(4) extension could affect a determination of finality

under § 2255. First, the ten-day rule could be uniformly

applied, regardless of whether or not a Rule 4(b)(4) motion

has been made or granted. Second, the ten-day rule could be

applied except in those cases in which an extension is sought

and granted within the forty days, in which case an

unappealed judgment of conviction would be final at the

expiration of the extended time. Third, a forty-day rule could

be uniformly applied, regardless of whether or not a Rule

4(b)(4) motion has been made or granted. It is not necessary

to decide between the first and second interpretations in the

instant case. This is because Sanchez-Castellano did not seek

or obtain an extension. In order to rule for SanchezCastellano, we must accept the third interpretation, and that

is what Sanchez-Castellano urges 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 days later than finality actually
No. 02-5081 Sanchez-Castellano v. United States 7

5We do not decide the question of whether the judgment against a

defendant who applies for, and receives, a Rule 4(b)(4) extension of the

filing deadline, but fails ultimately to seek a direct appeal, becomes final

forty days after entry. 

occurs in most cases. This is not consistent with the

congressional intent to set a one-year, as opposed to a

thirteen-month, statute of limitations. Moreover, there are no

equitable considerations militating in favor of the forty-day

interpretation. Under all three possible interpretations the

determination of when the judgment was final is made, for

statute of limitations purposes, retrospectively and long after

the date actually occurred. We must merely determine which

date corresponds best with the statutory language. At least 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 contends that, because he had the

opportunity to seek Rule 4(b)(4) relief, the judgment against

him should have been considered pending during the time that

he could have, but did not, seek relief. He compares this to

the practice of considering a judgment affirmed on appeal as

pending until the time to seek a writ of certiorari in the

Supreme Court has expired. Sanchez-Castellano points out

that a conviction is not final for § 2255 purposes until the

time for seeking certiorari has expired, when the defendant

does not actually seek certiorari. 

The time period for seeking certiorari, however, is more

accurately compared with the standard ten day filing period

for a direct appeal, and not the extension for excusable

neglect. The ten-day period for filing an appeal and the

ninety-day period for filing a certiorari petition are both

periods during which the defendant is permitted to file as of

right. The thirty-day extension period, in contrast, is only

granted upon request to the district court, and then only on a

showing that most litigants presumably cannot make—that

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

6

The dissent maintains that this will not be the case because finality

will come for defendants seeking relief at the time the district court rules

on the motion. Such a rule, however, would benefit those defendants who

fail to seek an extension under Rule 4(b)(4) by giving them the full forty

days while shortchanging those defendants who act diligently.

there has been good cause or excusable neglect. While it

makes sense to toll the limitations period so that a defendant

may file a petition that he is legally entitled to file, it does not

make sense to toll it so that he may seek permission from the

district court to file a late notice for exceptional reasons. 

Moreover, under Sanchez-Castellano’s construction, all

defendants would be entitled to this extended period of time,

regardless of whether the district court found excusable

neglect. Suppose he filed a motion to extend the filing

deadline under Rule 4(b)(4) on May 30, 1998, seventeen days

after the entry of the judgment. Then, three days later, the

district court denied the motion, finding no evidence of good

cause or excusable neglect. If Sanchez-Castellano is correct,

for purposes of the § 2255 limitations period, the judgment in

his case would become final twenty days after his last avenue

of direct review had closed.6 It is unlikely that Congress

intended such an outcome. 

For the foregoing reasons, an unappealed federal criminal

judgment becomes final ten days after it is entered, for

purposes of the § 2255 statute of limitations, at least where

there has 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, District Judge, dissenting. Because I believe that

the statute of limitations should start to run forty days after

the entry of the judgment of conviction, I respectfully dissent.

I am convinced that the better view is to include the thirty-day

excusable neglect period in determining when SanchezCastellano’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 irrelevant in this case.

What is relevant is that an extension of time is available.

Only when the time for seeking an appeal has been exhausted

can the conviction be said to be “final” and the statute of

limitations begin to run. The fact that Sanchez-Castellano did

not file a motion for an extension of time is also irrelevant.

What is also relevant is the fact that an avenue for appeal was

still available to him for forty days after the judgment was

entered. 28 U.S.C. § 2255 simply states that the statute of

limitations begins to run on “the date on which the judgment

of conviction becomes final.” The statute offers no guidance

as to the meaning of “final.” Since the statute is silent, the

choice of a time period is left to the Court. I see no good

reason not to accept Sanchez-Castellano’s view that the fortyday time period is the appropriate one. No purpose is to be

served by limiting the time period to ten days, except to limit

the number of habeas petitions which are considered on the

merits. Under the circumstances here and in like cases, I

believe that “final” should be interpreted to mean when the

opportunity for further review has completely expired. This

does not occur until forty days after the judgment of

conviction is entered. 

Nor do I believe that adopting this approach will, as the

majority suggests, entitle all defendants “to this extended

period of time, regardless of whether the district court found

excusable neglect.” The majority says that if Sanchez10 Sanchez-Castellano v. United States No. 02-5081

Castellano had filed a motion to extend time to file an appeal

under Rule 4(b)(4) seventeen days after the entry of judgment

of conviction and the district court denied it three days later,

then “the judgment would become final twenty days after his

last avenue of direct review had closed.” This is not entirely

correct. The judgment would not be final twenty days after

the last avenue of direct review had closed; rather, it would be

final when the last avenue for direct review had closed, i.e.

when the district court denied the motion. At that point, there

is no longer an available avenue for seeking an appeal. In any

event, this issue is not before us. In this case, SanchezCastellano’s avenue for appeal was foreclosed, and

consequently the judgment of conviction became “final,”

when the forty days expired.