UNITED STATES COURT OF APPEALS TENTH CIRCUIT Byron White United States Courthouse

1823 Stout Street Denver, Colorado 80257 (303) 844-3157 Patrick J. Fisher, Jr. Clerk February 22, 2001

TO: ALL RECIPIENTS OF THE OPINION
RE: 00-6210, Locke v. Saffle Filed on January 31, 2001 Footnote three on page 9 of the court’s slip opinio n is corrected to read as follows: We note that, in his response brief, Mr. Locke argu es “[i]n the alternative” that “conclusion of direct review” as used in § 2244(d)(1)(A) “means the date of the return of the state court of last resort’s mandate from the lower court to the state court of last res ort.” Aple’s Br. at 3. We need not reach this alternative argument, having ruled in Mr. Locke’s favor on his primary argument. A corrected copy of page 9 is attached. Sincerely, Patrick Fisher, Clerk of Court
By: Keith Nelson Deputy Clerk

encl.1 After examining the briefs and appellate record, this panel has determined

unanimously to honor the parties’ request for decis ion on the briefs without oral argument. See Fed. R. App. P. 34(f). The case is therefore subm itted without oral argument. 

## F I L E D United States Court of Appeals Tenth Circuit 

### JAN 31 2001 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

WENDELL LOCKE,

Petitioner-Appellee,

v. No. 00-6210 JAMES SAFFLE,

Respondent-Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA

(D.C. No. 98-CV-1176-C)

W.A. Drew Edmondson, Attorney General of Oklahoma, and Patrick T. Crawley, Assistant Attorney General, Oklahoma City, Oklahoma , for RespondentAppellant. Vance William Armor, Attorney at Law, Oklahoma City , Oklahoma, for Petitioner-Appellee.

Before HENRY , BALDOCK , and LUCERO , Circuit Judges. 1

HENRY , Circuit Judge.-2-

Petitioner-Appellee Wendell Locke, a state prisoner , filed a petition for a writ of habeas corpus on August 24, 1998. The gove rnment responded with a motion to dismiss on the ground that Mr. Locke’s pe tition was time barred pursuant to 28 U.S.C. § 2244(d)(1)(A). After the m otion was denied, the government asked the district court to stay the ord er; it also asked permission to file an immediate appeal. The district court grant ed both requests. The government then sought this court’s permission to f ile an immediate appeal, which was also granted. Consequently, we now consi der the government’s contention that Mr. Locke’s petition was not timelyfiled. We affirm for the reasons set forth below.-3- I. PROCEDURE AND BACKGROUND Mr. Locke was convicted in Oklahoma County Distric t Court of one count of first-degree murder and two counts of use of a v ehicle to facilitate the intentional discharge of a firearm. Mr. Locke subs equently brought an appeal before the Oklahoma Court of Criminal Appeals – the court of last resort in the state – which affirmed the conviction on August 1, 1997. See generally Locke v.
State , 943 P.2d 1090 (Okla. Crim. App. 1997). Mr. Locke did not seek direct review of his case before the United States Supreme Court, nor did he seek postconviction relief in state court. On August 24, 1998, Mr. Locke filed a petition for a writ of habeas corpus in federal court. The government moved to dismiss on the basis that the petition was time barred under § 2244(d)(1)(A), but the district court denied the motion. The district court noted that, in prior cases, this court had addressed the issue of timeliness and that, in those cases, inconsistent results had been reached. See Aplt’s Br., Ex. C, at 2 (district court order, file d Sept. 29, 1999) [hereinafter Dist. Ct. Order]. Among those cases, however, there was only one published opinion, Rhine v. Boone , 182 F.3d 1153 (10th Cir. 1999), and, under Rhine , Mr. Locke’s petition was timely filed.-4- II. DISCUSSION As a preliminary matter, Mr. Locke argues that this interlocutory appeal is improper because the government is seeking “to enlarg[e] its own rights or lessen[] the rights of its adversary absent a cross appeal.” Aple’s Br. at 4. We find this argument to be without merit, and so the only issue remaining is whether Mr. Locke’s petition was timely filed pursuant to § 2244(d)(1)(A). Because the parties do not dispute the facts, we have before us a purely legal question, and thus we review the matter de novo. See Gibson v. Klinger , 232 F.3d 799, --- (10th Cir. 2000). Section 2244(d)(1)(A) provides that [a] 1-year period of limitation shall apply to an application for a writ of habeas corpus . . . . The limitation peri od shall run from the . . . the date on which the judgment became final b y the conclusion of direct review or the expiration of the time for seeking such review

. 28 U.S.C. § 2244(d)(1)(A) (emphasis added). Accord ing to the district court, Mr. Locke had until October 29, 1998, to file his petit ion. The district court arrived at this date in the following manner: (1) on August 1 , 1997, the Oklahoma Court of Criminal Appeals, the state court of last resort, a ffirmed Mr. Locke’s conviction; (2) ninety days later – i.e., on October 30, 1997 –Mr. Locke’s time to seek direct review before the United States Supreme Court expired, see U.S. Sup. Ct. R. 13; (3) Mr. Locke’s conviction was thereby final on Oct ober 30, 1997, at least for the-5-

purposes of § 2244(d)(1)(A); and (4) consequently, the one-year limitation period began to run on October 30, 1997. The government argues that, as a matter of law, the district court erred in determining the day by which Mr. Locke’s petition h ad to be filed. More specifically, it argues that the district court imp roperly calculated the date on which Mr. Locke’s conviction was final by including the ninety days during which Mr. Locke could have filed (but did not) a pe tition for a writ of certiorari with the United States Supreme Court. According to the government, Mr. Locke’s conviction was final on August 1, 1997, the day that Mr. Locke had exhausted his state remedies. In short, the government’s contention is that “direct review” as used in § 2244(d)(1)(A) only means revie w within the state court system; review by the United States Supreme Court i s not counted. The government grounds its argument on two premises: ( 1) The Antiterrorism and Effective Death Penalty Act (“AEDPA”) was enacted t o accelerate the habeas process; and (2) AEDPA is focused on the exhaustionof state remedies. We are not persuaded by the government’s argument. We note first that, in Rhine v. Boone , 182 F.3d at 1153, we stated that for purposes of § 2244(d)(1)(A) “the judgment is not final and the one-year limitat ion period for filing for federal post-conviction relief does not begin to run until after the United States Supreme Court has denied review, or, if no petition for certiorari is filed, after the time for2Although Rhine discusses the limitation period with respect to § 2244(d)(1)(A),

which deals with direct review, its actual focus is § 2244(d)(2), which deals with post-conviction or collateral review. See 28 U.S.C. § 2244(d)(2) (“The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent jud gment or claim is pending shall not be counted toward any period of limitation unde r this subsection.”). Notably, § 2244(d)(2) does not take into account the time during which a petition for certiorari to the United States Supreme Court can be filed. See Rhine , 182 F.3d at 1156. That is, if a person has been de nied relief in a state postconviction or other collateral proceeding, and the person then seeks review of that decision before the United States Supreme Court, the limitation period does not toll during the time the person seeks review from the United States Supreme Court. See id. This holding in Rhine on § 2244(d)(2), however, is subject to change. The United States Supreme Court has grante d certiorari to a Second Circuit case to determine whether “other collateral review” under § 2244(d)(2) includes properly filed federal habeas petitions oronly applications for state review. See Walker v. Artuz , 208 F.3d 357, 358 (2d Cir.), cert. granted , 121 S. Ct. 480 (2000). -6- filing a petition for certiorari with the Supreme Court has passed .” Id. at 1155 (emphasis added); see also Habteselassie v. Novak , 209 F.3d 1208, 1209 (10th Cir. 2000) (“Because [the petitioner] did not file a petition for certiorari to the United States Supreme Court, the one-year period of limitation started to run ninety days after October 15, 1996, the date the [s tate court of last resort] denied his petition for certiorari and his state court rev iew was thus completed.”). Of course, this statement in Rhine was technically dicta, the holding of the case dealing with § 2244(d)(2) instead of § 2244(d)(1)(A), 2and therefore we are not bound by it. Still, we find the statement to b e instructive; at the very least, it cannot be ignored, especially in light of Habteselassie , see id. , and further in light-7-

of United States v. Burch , 202 F.3d 1274 (10th Cir. 2000). In Burch , this court addressed the issue of timeliness under 28 U.S.C. § 2255. Like § 2244, § 2255 is a habeas statute but, while § 2244 applies to priso ners held in state custody, § 2255 applies to prisoners held in federal custody. In discussing the issue of timeliness under § 2255, this court held that, “if a prisoner does not file a petition for a writ of certiorari with the United States Sup reme Court after [his] direct appeal, the one-year limitation period begins to ru n when the time for filing a certiorari petition expires.” Id. at 1279. Since the ninety-day period is included with respect to federal prisoners, we see no reasonnot to do the same with respect to state prisoners, see id. at 1278 (“We agree that there is simply no indicat ion that Congress intended to treat state and federal h abeas petitioners differently.”) – especially since § 2244 contains language that sugg ests the period should be counted and § 2255 does not. Compare 28 U.S.C. § 2244(d)(1)(A) (“The limitation period shall run from . . . the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such
review .”) (emphasis added), with 28 U.S.C. § 2255(1) (“The limitation period shall run from . . . the date on which the judgmentof conviction becomes final.”). Finally, we note that the circuit courts that have explicitly ruled on the issue of timeliness under § 2244(d)(1)(A) are in accord with Rhine ; that is, all have held that “the period of ‘direct review’ in 28 U.S.C. § 2244(d)(1)(A)-8-

includes the period within which a petitioner can f ile a petition for a writ of certiorari from the United States Supreme Court, wh ether or not the petitioner actually files such a petition.” Bowen v. Roe , 188 F.3d 1157, 1158-59 (9th Cir. 1999); see also Bronaugh v. Ohio , No. 99-3886, 2000 WL 1847861, at *2 (6th Cir. Dec. 19, 2000) (“This circuit . . . recently d ecided . . . that, under § 2244(d)(1)(A), the one-year statute of limitations does not begin to run until the time for filing a petition for a writ of certiorari for direct review in the United States Supreme Court has expired.”); Smith v. Bowersox , 159 F.3d 345, 348 (8th Cir. 1998) (“We conclude that the running of the st atute of limitations imposed by § 2244(d)(1)(A) is triggered by either (I) the con clusion of all direct criminal appeals in the state system, followed by either the completion or denial of certiorari proceedings before the United States Sup reme Court; or (ii) if certiorari was not sought, then by the conclusion of all direc t criminal appeals in the state system followed by the expiration of the time allotted for filing a petition for the writ.”). We agree with the reasoning employed by our sister circuits, in particular, that used by the Eighth Circuit in Smith . In Smith , the respondent argued, as the government does here, that a conviction becomes fin al on the day state court review is concluded; in other words, “direct review ” as used in § 2244(d)(1)(A)3 We note that, in his response brief, Mr. Locke ar gues “[i]n the alternative” that

“conclusion of direct review” as used in § 2244(d)( 1)(A) “means the date of the return of the state court of last resort’s mandate from the lower court to the state court of last resort.” Aple’s Br. at 3. We need n ot reach this alternative argument, having ruled in Mr. Locke’s favor on his primary argument.

-9- does not include review by the United States Suprem e Court. The Eighth Circuit rejected the respondent’s argument, stating the fol lowing:

Review of a state criminal conviction by the Suprem e Court of the United States is considered direct review of the conviction. Moreover, there is a well-established body of feder al case law that interprets the phrase ‘final by the conclusion of d irect review’ to include an opportunity to seek certiorari. When Co ngress elects to use terminology that has become commonplace in court decisions in a particular field of law, the rules of statutory c onstruction call for us to define the statute’s terms in harmony with that accepted judicial meaning. Thus, a chance to solicit review of const itutional issues before the United States Supreme Court, after the e nd of state court proceedings, properly falls within the meaning of ‘ final by the conclusion of direct review.’ Smith , 159 F.3d at 348 (citations omitted and emphasis added). 3 To conclude, we hold that Mr. Locke’s petition was timely filed with the district court pursuant to § 2244(d)(1)(A): Under the statute, a petitioner’s conviction is not final and the one-year limitationperiod for filing a federal habeas petition does not begin to run until – follo wing a decision by the state court of last resort – “after the United States Sup reme Court has denied review, or, if no petition for certiorari is filed, after the time for filing a petition for certiorari with the Supreme Court has passed.” Rhine , 182 F.3d at 1155. To the4It is not clear to what extent these unpublished opinions are contrary

because the factual discussion in each is limited. -10- extent that other cases in this circuit may be read to suggest otherwise, 4see, e.g. , Gibson v. Snyder , No. 99-6304, 2000 WL 300212, at *1 n.3 (10th Cir. March 23, 2000) (unpublished opinion); Bridges v. Booher , No. 99-6191, 1999 WL 617723, at *2 (10th Cir. Aug. 16, 1999) (unpublished opinion); Rodriguez v. Klinger , No. 98-6407, 1999 WL 394562, at *1 n.2 (10th Cir. June 16, 1999) (unpublished opinion), those cases are not to be cited. Accordingly, we AFFIRM the decision of the districtcourt.