* Pursuant to 5 TH C IR

. R. 47.5, the court has determined that this opinion

s hould not be published and is not precedent except under the limited

circumstances set forth in 5 TH C IR

. R. 47.5.4.



### IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________

No. 98-10382

_______________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

JERRY DEAN BRIERTON,

Defendant-Appellant.

_________________________

Appeal from the United States District Court

for the Northern District of Texas

(4:98-CV-84-E & 4:88-CR-183-1-E)

_________________________

January 12, 1999

Before DAVIS, SMITH, and WIENER, Circuit Judges.

JERRY E. SMITH, Circuit Judge: *



### Jerry Brierton appeals the dismissal of his 28 U.S.C. § 2255

motion as time-barred, contending the limitations period violates

the Constitution. Finding no error, we affirm.

I.

In the spring of 1989, Brierton pleaded guilty to bank robbery

and was sentenced to 210 months' imprisonment. He mailed a letter2 Pub. L. No. 104-132, 110 Stat. 1214. AEDPA became effective on April 24,

1996.

3 The limitations provision provides:



### (continued...)

2 to the court in November 1989 asking for a reduction of his

sentence, which the district court treated as an unauthorized

motion to reduce and denied.

In January 1998, Brierton filed a § 2255 motion, alleging he

had been denied effective assistance of counsel in 1989 because his

attorney failed to preserve his right to appeal. The government

filed a motion to dismiss, stating that the filing was time-barred

under § 105 of the Anti-Terrorism and Effective Death Penalty Act

of 1996 (“AEDPA”). 2 

### Brierton responded that the period of

limitations establish ed by AEDPA should not apply to him

retroactively. The district court granted the motion to

dismiss the § 2255 motion, agreeing that it was time- barred.

Brierton then filed a notice of appeal and request for certificate

of appealability (“COA”). The district court determined that

Brierton had made a substantial showing of a denial of a

constitutional right and issued a COA on the question whether the

application o f AEDPA's limitations period to Brierton's case

violates the Su spension Clause, an issue the court raised s ua

sponte

.

II.

The AEDPA added a one-year limitations period for filing

§ 2255 motions. 3 

### Brierton does not dispute that the limitations

### (...continued)

A 1-year period of limitation shall apply to a motion under this

section. The limitation period shall run from the latest of SS

(1) the date on which the judgment of conviction becomes

final;

(2) the date on which the impediment to making a motion

crea ted by governmental action in violation of the

Constitution or laws of the United States is removed, if

the movant was prevented from making a motio n by such

governmental action;

(3) the date on which the right asserted was initially

recognized by the Supreme Court, if that right has been

newly recognized by the Supreme Court and made

retroactively applicable to cases on collateral review;

or

(4) the date on which the facts supporting the claim or

claims presented could have been discovered through the

exercise of due diligence.

28 U.S.C. § 2255. We previously have decided that prisoners whose convictions

became final before the effective date had one year from that date in which to

file a § 2255 motion. S ee United States v. Flores

, 135 F.3d 1000, 1002-06 (5th

Cir. 1998), cert. denied

, 1999 U.S. App. LEXIS 45 9 (U.S. Jan. 11, 1999)

(No. 98-7123).

4 “The Privilege of the Writ of Habeas Corpus shall not be s uspended,

unless when in Cases of Rebellion or Invasion the public Safety may require it.”

U.S. C ONST . art. I, § 9, cl. 2.



### 3 period had run. Rather, he argues that application of the

limitations period constitutes a suspension of the writ of habeas

corpus in contravention of the Suspension Clause. 4 

### We disagree.

The limitations period does not violate the Suspension Clause,

because a § 2 255 motion is a motion to vacate, set aside, or

correct a sentenc e but is not a habeas proceeding. S ee

, e.g.

,

United States v. Placente

, 81 F.3d 555, 557 (5th Cir. 1996).

Section 2255 speaks only of motions, not habeas petitions.

The advisory committee note to Rule 1 of the Rules Governing

Section 2255 Proceedings for the United State s District Courts

differentiates betwee n § 2255 motions and petitions for habeas5 Congress ad opted the rules in Pub. L. 94-426, § 1, 90 Stat. 1334

(Sept. 28, 1976).

6 See United States v. Hayman

, 342 U.S. 205, 219 (1952) (noting that “the

sole purpose [of adopting § 2255 motio n s] was to minimize the difficulties

encountered in habeas hearings by affording the same rights in another and more

convenient forum”).

7 See

, e.g.

, In re Epps

, 127 F.3 d 364, 365 (5th Cir. 1997) (discussing

procedure for appeal of “successive petition for habeas corpus relief from a

state prisoner or a successive § 2255 motion from a federal prisoner”); Placente

, 81 F.3d at 558 (“The scope of relief under § 2255 is consistent with that of the

writ of habeas corpus.”); United States v. Tubwell , 37 F.3d 175, 177 (5th Cir.

1994) (“The district court and the Government characterize Tubwell's [motion] as a § 2255 motion. However, Tubwell's motion is more properly construed as a

petition for habeas corpus pursuant to 28 U.S.C. § 2241."). We often carelessly

refer to § 2255 motions as petitions for habeas relief. S ee

, e.g.

, United States

v. Giacomel

, 153 F.3d 257, 257 (5th Cir. 1998) (discussing defendant's “28 U.S.C.

§ 2255 petition for habeas corpus”); Pleasant v. Texas

, 134 F.3d 1256, 1257 (5th

Cir. 1998) (noting petitioner previously “filed a petition for federal habeas

corpus relief pursuant to [] § 2255"); United States v. Rocha

, 109 F.3d 225, 227

(5th Cir. 1997) (ref erring to party's “pro se motion for habeas relief under



### (continued...)

4 relief:

Under these rules the person seeking relief from federal

custody files a motion to vacate, set aside, or correct

sentence, rather than a petition for habeas corpus. This

is consistent with the terminology used in section 2255

and indicates the difference between this r emedy and

federal habeas corpus for a state prisoner. Also, habeas

corpus is available to the person in federal custody if

his “remedy by motion is inadequate or ineffective to

test the legality of his detention.”

Id. (quoting § 2255). 5 

### The note further explains the ramifications

and advantages of addressing sentencing concerns outside the habeas

c ontext. S ee advisory committee notes, § 2255 Rule 1 . Most

notably, rather than being a civil action, as is an action seeking

a writ of habeas corpus, a § 2255 motion is a further step in the

movant's criminal case.

The Supreme Court recognizes that § 2255 motions are distinct

from habeas petitions, even though they seek similar relief. 6 

### Our

jurisprudence also acknowledges the distinction. 7 

### The Suspension

### (...continued)

§ 2255"). They are not habeas petitions just because we occasionally call them

that.



### 5 Clause protects the writ of habeas corpus from suspension. Because

a § 2255 motion is not a habeas proceeding, the limitations period

in § 2255 does not violate that clause.

AFFIRMED.