1999 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

2-2-1999

Kapral v. USA

Precedential or Non-Precedential:

Docket 97-5545

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Recommended Citation

"Kapral v. USA" (1999). 1999 Decisions. Paper 26.

http://digitalcommons.law.villanova.edu/thirdcircuit_1999/26
Filed February 2, 1999 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

NO. 97-5545 

MICHAEL KAPRAL, 

 Appellant 

v. 

UNITED STATES OF AMERICA 

On Appeal From the United States District Court 

For the District of New Jersey 

(D.C. Civ. No. 97-cv-2290) 

District Judge: Hon. Alfred M. Wolin 

Submitted Pursuant to Third Circuit LAR 34.1 

June 25, 1998 

Before: GREENBERG, ALITO and McKEE Circuit Judges. 

(Filed February 2, 1999) 

 Marcia G. Shein, Esq. 

 National Legal Services, Inc. 

 52 Executive Park South 

 Suite 5203 

 Atlanta, GA 30329 

 Attorney for Appellant 
 George S. Leone, Esq. 

 Office of United States Attorney 

 970 Broad Street 

 Room 700 

 Newark, NJ 07102 

 Attorney for Appellee 

OPINION OF THE COURT 

McKee, Circuit Judge. 

We are asked to decide when a criminal conviction 

becomes "final" within the meaning of the limitations 

provision of 28 U.S.C. S 2255. The district court ruled that 

the period of limitations begins to run when a defendant 

can no longer take a direct appeal as of right. For the 

reasons that follow, we rule that a conviction does not 

become "final" under S 2255 until expiration of the time 

allowed for certiorari review by the Supreme Court.

Appellant Michael Kapral did not file a petition for 

certiorari, but he filed his S 2255 motion within one year of 

the date on which his time to seek certiorari review expired. 

We hold that his filing was timely, and we will reverse and 

remand for proceedings consistent with this opinion. 

I. Background 

Kapral pled guilty to income tax evasion, and conspiracy 

to distribute and to possess with intent to distribute at 

least 700 grams of methamphetamine. He was sentenced to 

120 months of imprisonment and 8 years of supervised 

release on May 25, 1995. We affirmed the judgment of 

conviction on February 13, 1996. Kapral did notfile a 

petition for a writ of certiorari in the United States Supreme 

Court. 

On April 29, 1997, Kapral filed a counseled motion under 

S 2255 in which he claimed that his prior counsel provided 

ineffective assistance and that the resulting plea was 

therefore not a knowing and intelligent one. The district 

court did not reach the merits of Kapral's claims, however, 

 2 
as the court ruled that his motion was untimelyfiled. 

Under S 2255, a motion must be filed within one year of 

"the date on which the judgment of conviction becomes 

final." The district court interpreted that language to mean 

that a defendant must file within one year of the date on 

which this court affirms the defendant's conviction and 

sentence. Since Kapral filed his motion more than one year 

after we affirmed on direct review, the district court 

dismissed his motion with prejudice. We granted Kapral's 

request for a certificate of appealability. See 28 U.S.C. 

S 2253(c)(1)(B). The district court had jurisdiction pursuant 

to 28 U.S.C. S 2255. We have jurisdiction pursuant to 28 

U.S.C. SS 2253(a) and 2255. We review issues of statutory 

interpretation de novo. See, e.g., Stiver v. Meko, 130 F.3d 

574, 577 (3d Cir. 1997). 

II. Discussion 

A. 

Section 2255 provides in relevant part: 

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

 under this section. The limitation period shall run from 

 the latest of-- 

 (1) the date on which the judgment of conviction 

 becomes final; 

 (2) the date on which the impediment to making 

 a motion created by governmental action in 

 violation of the Constitution or laws of the United 

 States is removed, if the movant was prevented 

 from making a motion 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. 

 3 
28 U.S.C. S 2255. 

This provision creates a statute of limitations for federal 

defendants who attempt to collaterally attack their

conviction and/or sentence pursuant to S 2255. See Miller 

v. New Jersey State Dep't of Corrections, 145 F.3d 616, 619 

n.1 (3d Cir. 1998) (holding that the one-year requirement 

for bringing a motion under S 2255 is a statute of 

limitations subject to equitable tolling, not a jurisdictional 

bar). It was enacted as part of the Antiterrorism and 

Effective Death Penalty Act of 1996 ("AEDPA"), which was 

signed into law on April 24, 1996. In Burns v. Morton, 134 

F.3d 109 (3d Cir. 1998), we held that "S 2255 motions filed 

on or before April 23, 1997, may not be dismissed for 

failure to comply with S 2255's one-year period of 

limitation," id. at 112, and we further held that, under the 

principles set forth in Houston v. Lack, 487 U.S. 266 

(1988), a pro se prisoner's S 2255 motion is deemed filed at 

the moment it is delivered to the prison officials for mailing. 

See 134 F.3d at 113. Although Kapral is incarcerated, his 

motion was mailed by counsel and received by the district 

court clerk's office on April 29, 1997, which was after the 

Burns deadline. Accordingly, his motion is subject to the 

terms of S 2255's one-year limitation period. 1 

_________________________________________________________________ 

1. Kapral contends that the district court should have deemed his 

motion timely filed on April 22, 1997, which is the date counsel 

deposited the motion in the mail. Kapral advances several arguments in 

support of this position, all of which we reject as meritless, although 

one 

warrants further discussion. Kapral claims that an employee of the 

district court clerk's office told his counsel that "the date that would 

be 

used for purposes of determining the filing of[a] Federal habeas corpus 

petition[ ] would be the date that it was mailed in the United States 

Postal Service using adequate postage." Appellant's Br. at 34. Kapral 

argues that counsel "reasonably relied" on that information and that, 

under principles of equity, his motion should be deemed filed on the date 

it was mailed. The record reflects that Kapral's counsel is an experienced 

practitioner who should have known or verified the elementary rules that 

govern the filing of a S 2255 motion. We reject, therefore, the suggestion 

that counsel's alleged reliance on misinformation from the clerk's office 

was reasonable. Cf. Kraft, Inc. v. United States , 85 F.3d 602, 609 (Fed. 

Cir. 1996); Gabriel v. United States, 30 F.3d 75, 77 (7th Cir. 1994). A 

counseled S 2255 motion will be deemed "filed," at the earliest, on the 

date it is received by the district court clerk's office. See Rule 3(b), 

Rules 

 4 
Thus, we are called upon to decide when a "judgment of 

conviction becomes final" within the meaning ofS 2255, 

which is an issue of first impression for this Court. The 

district court held that finality occurs when a court of 

appeals affirms the judgment of conviction on direct review 

even if the defendant subsequently files a timely petition 

with the Supreme Court for certiorari review. The district 

court reasoned that certiorari is discretionary and granted 

in relatively few cases, and noted that "challenges by state 

and federal prisoners to their convictions and 

confinement[ ] are granted review only .45% of the time." 

Kapral v. United States, 973 F. Supp 495, 498 n.6 (D.N.J. 

1997) (internal quotation marks and citation omitted). The 

district court then drew a distinction between an appeal as 

of right and a discretionary appeal. Since the latter was so 

infrequently granted, the district court reasoned that a 

defendant's conviction was final when the defendant no 

longer had a right (as opposed to a hope) of further review. 

The district court stated: 

 The Court [ ] declines to define final judgment of 

 conviction based on a prisoner's petitioning the 

 Supreme Court for certiorari. In contrast to the direct 

 appeal of right, petitioning for certiorari constitutes a 

 discretionary appeal. In exercising this discretion, the 

 Supreme Court rarely grants certiorari in sentencing 

 cases. In addition, having exercised the appeal of right, 

 the petitioner has had a fair opportunity to present his 

 federal claims in an appellate forum. Therefore, a 

 judgment perfected by appeal may fairly be deemed a 

_________________________________________________________________ 

Governing S 2255 Proceedings in the United States District Courts; see 

also Gonzalez v. United States, 2 F. Supp.2d 155, 156 (D. Mass. 1998) 

("[A] section 2255 petition is filed upon the receipt of the petition by 

the 

clerk of court and a determination that it complies with Rule[s] 2 and 3 

[of the Rules Governing S 2255 Proceedings]."); United States v. Nguyen, 

997 F. Supp. 1281, 1288 (C.D. Cal. 1998) ("[A] S 2255 motion is deemed 

filed on the date it is received (and perhaps lodged) by the Clerk of the 

Court."). Here, the clerk's office stamped Kapral's motion "received" on 

April 29, 1997, and Kapral does not dispute that his motion was received 

on that date. Thus, the district court did not err in treating his motion 

as filed on April 29, 1997. 

 5 
 final judgment from which the S 2255 statute of 

 limitations begins to run. 

Id. at 498 (footnotes omitted). Thus, the district court based 

its definition of "final judgment" upon the improbability of 

successful discretionary appeal and the fair opportunity for 

review afforded by termination of appeals as of right.2 The 

district court further opined that "an equitable tolling" of 

the limitations period would apply if the Supreme Court 

grants a defendant's petition for certiorari review. See id. at 

499 n.7. 

Kapral argues that a defendant has a right to petition the 

Supreme Court for certiorari review and that the time 

needed to do so cannot be omitted from considerations of 

finality. Accordingly, Kapral contends that theS 2255 clock 

begins to tick only after the 90-day period to file a certiorari 

petition has expired. If a certiorari petition is timely filed, 

he argues, the clock would start to tick when the Supreme 

Court either denies certiorari or affirms the judgment of 

conviction on the merits. Notably, the government agrees 

with Kapral that if a defendant timely seeks certiorari 

review, the judgment of conviction does not becomefinal 

until the Supreme Court denies certiorari or affirms on the 

merits. Appellee's Br. at 18-20. The government urges that 

we affirm, however, on the ground that when a defendant, 

like Kapral, chooses not file a certiorari petition, his 

judgment of conviction becomes final on the date this court 

affirms it on direct review. Id. at 20-24. 

B. 

"We begin with the familiar canon of statutory 

construction that the starting point for interpreting a 

statute is the language of the statute itself." Consumer Prod. 

Safety Comm'n v. GTE Sylvania, Inc., 447 U.S. 102, 108 

(1980). Here, neither "judgment of conviction" nor "final" is 

expressly defined in S 2255. We consider these terms 

seriatim. 

_________________________________________________________________ 

2. The district court was also persuaded by the difference between the 

wording of 28 U.S.C. S 2244(d)(1)(A) and that of S 2255. We will discuss 

that distinction below. 

 6 
In federal criminal practice, "judgment of conviction" 

refers to a formal document, signed by the trial judge and 

entered by the clerk of the district court, that sets forth 

"the plea, verdict or findings, the adjudication, and the 

sentence." FED. R. CRIM. P. 32(d)(1); see also BLACK'S LAW 

DICTIONARY 843 (6th ed. 1990) (quoting Rule 32(b)(1), the 

predecessor to Rule 32(d)(1), in defining "judgment of 

conviction"). Under Rule 32(d)(1), a judgment of conviction 

"includes both the adjudication of guilt and the sentence." 

Deal v. United States, 508 U.S. 129, 131 (1993); see also 

Ball v. United States, 470 U.S. 856, 862 (1985) ("[T]he 

sentence is a necessary component of a `judgment of

conviction.' "). A judgment of conviction is entered only after 

the trial court has completed the sentencing process, see 

Howard v. United States, 135 F.3d 506, 509 (7th Cir. 1998), 

and thus the term is commonly understood to refer to both 

the conviction and sentence. 

Under S 2255, a defendant is permitted to collaterally 

attack both the conviction and sentence. See, e.g.,

McFarland v. Scott, 512 U.S. 849, 859 (1994) ("[C]riminal 

defendants are entitled by federal law to challenge their 

conviction and sentence in habeas corpus proceedings."). 

We have no reason to doubt that Congress used the term 

"judgment of conviction" in S 2255 in accordance with this 

well-settled meaning. Thus, S 2255's limitation period 

begins to run on the date on which the defendant's 

conviction and sentence become "final." 

As is evident from the district court's thoughtful 

discussion, and the position of the parties on appeal, a 

judgment of conviction could become "final" on one of 

several dates. These include: the date on which the

defendant is sentenced or the judgment of conviction is 

entered on the district court docket; the date on which the 

court of appeals affirms the conviction and sentence or the 

time for appeal expires; or the date on which the Supreme 

Court affirms on the merits, denies a timely filed petition 

for certiorari, or the time to seek certiorari review expires. 

We must determine which concept of "finality" Congress 

intended in S 2255. Our inquiry is guided by our awareness 

that Congress enacted S 2255's limitations period to control 

collateral attacks upon judgments obtained in federal 

criminal cases. As the Supreme Court has noted, 

 7 
 [t]he maxim noscitur a sociis, that a word is known by 

 the company it keeps, while not an inescapable rule, is 

 often wisely applied where a word is capable of many 

 meanings in order to avoid the giving of unintended 

 breadth to the Acts of Congress. 

Jarecki v. G.D. Searle & Co., 367 U.S. 303, 307 (1961); see 

also Deal v. United States, 508 U.S. 129, 132 (1993) ("[A] 

fundamental principle of statutory construction (and, 

indeed, of language itself) [is] that the meaning of a word 

cannot be determined in isolation, but must be drawn from 

the context in which it is used."). 

The government submits the following dictionary 

definition of "final" in support of its interpretation of the 

statute: 

 1. pertaining to or coming at the end; last in place, 

 order, or time .... 2. ultimate .... 3 . conclusive or 

 decisive: a final decision. 4. Law. a . precluding further 

 controversy on the questions passed upon: The judicial 

 determination of the Supreme Court is final. b . 

 determining completely the rights of the parties, so 

 that no further decision upon the merits of the issues 

 is necessary: a final judgment or decree .... 

Appellee's Br. at 18 (quoting WEBSTER' S ENCYCLOPEDIC 

UNABRIDGED DICTIONARY OF THE ENGLISH LANGUAGE532 (1989 

ed.)); see also BLACK'S LAW DICTIONARY 629 (6th ed. 1990) 

(defining "final" as "[l]ast; conclusive; decisive; definitive; 

terminated; completed" and defining "final decision or 

judgment" as "[o]ne which leaves nothing open to further 

dispute and which sets at rest cause of action between the 

parties. One which settles rights of parties respecting the 

subject matter of the suit and which concludes them until 

it is reversed or set aside.... Also, a decision from which no 

appeal or writ of error can be taken."). 

We agree with the government's analysis that, when a 

defendant files a timely petition for certiorari review, the 

defendant's judgment of conviction does not become"final" 

until the Supreme Court acts. Until then it cannot be said 

that the determination of the court of appeals is"final" 

within the context of S 2255, a provision that authorizes the 

commencement of a collateral attack upon a judgment of 

 8 
conviction. It is the action of the Supreme Court in ruling 

on the certiorari petition that brings about closure on direct 

review and elevates the decision of the court of appeals to 

a level of finality that is "the last in place, order or time," 

"precludes further controversy on the questions passed 

upon," and is "a decision from which no appeal or writ of 

error can be taken." 

It is, of course, true that when a court of appeals issues 

its judgment on direct review, the resulting mandate is 

"final" in the sense that it leaves nothing left to be decided 

on the merits. However, the decision of the district court is 

final in the same sense, and no less worthy of being 

considered "conclusive or decisive" by that measure. Both 

judgments are subject to further review, and wefind, 

therefore, that neither is "final" within the meaning of 

S 2255. Section 2255 is a provision that authorizes the 

commencement of a collateral attack upon a judgment of 

conviction. Accordingly, it is clear that "final," as used in 

S 2255, refers to the decision on direct review that 

"precludes further controversy on the questions passed 

upon," the one "from which no appeal or writ of error can 

be taken." We are persuaded that Congress intended this 

concept of finality to control petitions filed under S 2255's 

one-year limitations period. 

As noted, a collateral attack is generally inappropriate if 

the possibility of further direct review remains open: 

 A district court should not entertain a habeas corpus 

 petition while there is an appeal pending in [the court 

 of appeals] or in the Supreme Court. The reason for the 

 rule is that disposition of the appeal may render the 

 [habeas corpus writ] unnecessary. This is true if the 

 appeal is still pending [in the court of appeals] . . . . It 

 is even more appropriate . . . when review of the 

 conviction is pending before the Supreme Court. 

Feldman v Henman, 815 F.2d 1318, 1320-21 (9th Cir. 

1987) (internal quotation marks and citations omitted). This 

is a procedural reality regardless of the probability that the 

Supreme Court will actually grant certiorari. Thus, if a 

defendant files for certiorari review, direct review is 

ongoing, and the commencement of a simultaneousS 2255 

 9 
proceeding would be inappropriate. Accordingly, we hold 

that a judgment of conviction does not become "final" 

within the meaning of S 2255 until the Supreme Court 

affirms the conviction and sentence on the merits or denies 

a timely filed petition for certiorari. Accord United States v. 

Simmonds, 111 F.3d 737, 744 (10th Cir. 1997) ("Mr. 

Simmonds' conviction became `final' after the Supreme 

Court denied certiorari[.]"). 

In addition, if a defendant does not file a certiorari 

petition, the judgment of conviction does not become"final" 

until the time for seeking certiorari review expires. A 

defendant has 90 days from the date on which the court of 

appeals affirms the judgment of conviction tofile a petition 

for a writ of certiorari.3 During that 90-day period, the 

defendant retains the right to seek to overturn the

judgment of the court of appeals in the Supreme Court. 

Only when the time for seeking certiorari review has 

expired is it appropriate for a defendant to commence a 

collateral attack on the conviction and sentence. See United 

States v. Dorsey, 988 F. Supp. 917, 919 n.3 (D. Md. 1998). 

As the district court explained in Dorsey: 

 It makes [little] sense to suggest that a judgment of 

 conviction is "final" for purposes of S 2255 upon 

 completion of direct appeal of right, rather than the 

 conclusion of any petition to the Supreme Court, 

 simply because it is unlikely that the Supreme Court 

 will grant certiorari. If a petitioner should awaitfinal 

 disposition of direct appeal before petitioning for 

 collateral relief, that final disposition should logically 

_________________________________________________________________ 

3. Supreme Court Rule 13 provides in relevant part:

 1. Unless otherwise provided by law, a petition fo r a writ of 

 certiorari to review a judgment in any case, civil or criminal, 

entered 

 by a state court of last resort or a United States court of appeals 

 (including the United States Court of Appeals for the Armed Forces) 

 is timely when it is filed with the Clerk of this Court within 90 

days 

 after entry of the judgment. A petition for a writ of certiorari 

seeking 

 review of a judgment of a lower state court that is subject to 

 discretionary review by the state court of last resort is timely 

when 

 it is filed with the Clerk within 90 days after entry of the order 

 denying discretionary review. 

 10 
 be when no further avenues for direct appeal exist, not 

 when it becomes increasingly unlikely that such direct 

 appeal will continue. 

Id. at 919 (comparing the reasoning in Feldman with the 

district court's analysis here.). 

As noted above, the district court's analysis in the 

present case was greatly influenced by the low probability 

of the Supreme Court actually granting discretionary review 

of the decision of a court of appeals. In addition, the district 

court reasoned that its analysis was fortified by, and 

consistent with, Congress's intent in enacting AEDPA. The 

court stated: 

 The Court's holding comports with the policy

 underlying the Act. In amending 28 U.S.C. S 2255, 

 Congress intended to reduce the abuse of habeas 

 corpus that results from delayed and repetitivefilings 

 . . . while preserving the availability of diligently sought 

 review. . . . Defining the date of final judgment of 

 conviction as the date of the appeals court's decision 

 facilitates the congressional intent underlying the 

 AEDPA. Specifically, it counters habeas corpus abuse 

 by definitively limiting the time in which a prisoner 

 may seek S 2255 review, while simultaneously

 providing ample opportunity for the prisoner to 

 exercise the right to seek relief under S 2255. 

Kapral, 973 F. Supp at 498 (internal quotation marks and 

citations omitted). We find, however, that AEDPA's purpose 

is best furthered by an interpretation of S 2255 that 

recognizes the legal reality that the decision of a court of 

appeals is subject to further review, and therefore not 

"final" within the meaning of S 2255 until direct review has 

been completed. Recognizing that one is allowed 90 days to 

file a petition for certiorari does not mitigate the 

congressional objective of imposing time limits where none 

previously existed.4 

_________________________________________________________________ 

4. See 142 CONG. REC. H3606 (daily ed. Apr. 18, 1996) ("I introduced this 

legislation . . . to impose a statute of limitations on the filing of 

habeas 

corpus petitions.") (statement of Rep. Hyde). 

 11 
In short, although a defendant has no review as of right 

in the Supreme Court after a conviction is affirmed on 

direct review, a defendant does have a right to petition for 

that review. Thus, we think the district court drew too fine 

a line in distinguishing between review as of right and 

discretionary review for purposes of defining"final" under 

S 2255. 

C. 

In Griffith v. Kentucky, 479 U.S. 314, 320 (1987), the 

Supreme Court had to determine if the rule announced in 

Batson v. Kentucky, 476 U.S. 79 (1986) would be applied to 

convictions that had become final prior to Batson being 

decided. The Court held that, under its precedent, the 

answer to that inquiry required a "three-pronged analysis 

. . . both to convictions that were final and to convictions 

pending on direct review" to determine if Batson applied in 

a particular instance. The Court then stated: "By`final' we 

mean a case in which a judgment of conviction has been 

rendered, the availability of appeal exhausted, and the time 

for a petition for certiorari elapsed or a petition for 

certiorari finally denied." Griffith, 479 U.S. at 321 n.6. 

Moreover, in Teague v. Lane, 489 U.S. 288, 310 (1989), 

the Court held that federal habeas corpus relief based upon 

a "new rule" generally is unavailable if the rule was 

announced after the defendant's conviction and sentence 

became "final." See also Caspari v. Bohlen , 510 U.S. 383, 

389 (1994). In the wake of Teague, "[a] threshold inquiry in 

every habeas case . . . is whether the court is obligated to 

apply the Teague rule to the defendant's claim." Id.; see 

also Schiro v. Farley, 510 U.S. 222, 228 (1994). For 

purposes of a Teague analysis, a defendant's judgment of 

conviction becomes final (1) on the date the Supreme Court 

denies certiorari, see, e.g., Stringer v. Black, 503 U.S. 222, 

226 (1991), or (2) on the date the time for filing a timely 

petition for a writ of certiorari expires. See , e.g., Caspari, 

510 U.S. at 384. 

As the amicus contends, it would make little sense for 

S 2255's one-year limitation on collateral proceedings to 

begin to run before a legal event that may give rise to a 

 12 
claim for collateral relief -- i.e., the announcement of a new 

rule-- has occurred. Rather, in the interest of the orderly 

administration of direct and collateral proceedings, the first 

day of the one-year limitations period logically should be 

the last day on which any applicable new rule could be 

decided. We find no reason to believe that Congress

intended to adopt a definition of finality inS 2255 that is 

inconsistent with the concept of finality under a Teague 

analysis. 

Furthermore, while Congress has imposed a one-year 

limitation on the commencement of collateral proceedings, 

it does not appear that Congress intended to encourage the 

commencement of collateral proceedings before a defendant 

has had a full and fair opportunity to litigate his or her 

claims on direct review. Indeed, as the government 

contends, commencing a collateral attack while direct 

review is ongoing would be "wasteful and pointless if the 

conviction is reversed by the Supreme Court." Appellee's Br. 

at 19. The outcome on direct review, even if not in the 

defendant's favor, may also cause the defendant to limit or 

rethink the claims that would be raised on collateral review, 

or even dissuade the defendant from seeking collateral 

review. For these reasons, and to ensure the orderly 

administration of criminal proceedings, defendants have 

long been discouraged from commencing S 2255 

proceedings before the conclusion of direct review. See 

Feldman, supra; United States v. Gordon, 634 F.2d 638, 

638-39 (1st Cir. 1980) (holding that "in the absence of 

`extraordinary circumstances' the `orderly administration of 

criminal justice' precludes a district court from considering 

a S 2255 motion while review of the direct appeal is still 

pending"); United States v. Davis, 604 F.2d 474, 484 (7th 

Cir. 1979) (same); Welsh v. United States, 404 F.2d 333 

(5th Cir. 1968) (same); Womack v. United States , 395 F.2d 

630 (D.C. Cir. 1968) (same); Masters v. Eide, 353 F.2d 517, 

518 (8th Cir. 1965) (same); see also Rule 5, Rules 

Governing S 2255 Proceedings, Advisory Committee Note 

(1997) (S 2255 motion "is inappropriate if the movant is 

simultaneously appealing the decision"). 

If the one-year limitations period were to run from the 

judgment of the court of appeals, the defendant who elects 

 13 
to file a certiorari petition may well be forced to commence 

a simultaneous collateral proceeding before the Supreme 

Court has ruled. This would only impair the orderly

administration of criminal proceedings by delaying the 

ultimate resolution of both direct and collateral review. If, 

however, the time for petitioning for certiorari review is 

allowed to expire before the one-year limitation period 

begins to run, collateral proceedings rarely will be 

commenced while direct review is ongoing. Finally, it is 

beyond dispute that the Supreme Court is the final arbiter 

of whether a matter warrants certiorari review, and it 

should have a chance to make that determination before a 

defendant's judgment of conviction is deemed "final"-- a 

label that, in a collateral proceeding, carries a presumption 

that the defendant "stands fairly and finally convicted." 

United States v. Frady, 456 U.S. 152, 164 (1982). 

The government argues that interpreting S 2255 to 

include the time for seeking certiorari review serves only to 

delay filing a collateral challenge if a defendant does not 

petition for certiorari, and it argues that this is contrary to 

the congressional intent in enacting AEDPA. Appellee's Br. 

at 20-21. We find this argument unpersuasive. Wefind no 

indication in either the text of AEDPA or its legislative 

history that Congress intended that the judgment of the 

court of appeals would trigger the one-year period for a 

defendant who does not file a certiorari petition. Further, 

we reject the suggestion that waiting until the expiration of 

the 90-day period for seeking certiorari review will somehow 

thwart AEDPA's goal of speeding up the collateral review 

process. Prior to AEDPA, a defendant could file aS 2255 

motion "at any time," see, e.g. , United States v. Nahodil, 36 

F.3d 323, 328 (3d Cir. 1994), and the new one-year 

limitations period, which replaced the "at any time" 

language in S 2255, is certain to prevent defendants from 

delaying the commencement of collateral proceedings. We 

do not believe that the collateral review process will be 

slowed in any meaningful way if defendants are afforded 90 

days to consult with counsel and to consider whether it 

would be appropriate to exercise their right to seek 

certiorari review. 

In addition, we reject the suggestion that, because

 14 
AEDPA has imposed stringent requirements for seeking and 

obtaining collateral relief, S 2255 must be interpreted to 

provide as little time as possible for a defendant to file for 

collateral relief. The "Great Writ" occupies far too important 

a place in our jurisprudence to justify such an assumption 

on the basis of the language of AEDPA.5 No one can deny 

that errors sometimes occur during the course of a criminal 

prosecution, or that depriving an individual of his or her 

liberty is not to be taken lightly. 

III. 

Our research discloses but one other court of appeals 

that has addressed the precise issue before us. In Gendron 

v. United States, 154 F.3d 672 (7th Cir. 1998) (per curiam), 

which was decided after the parties filed their briefs in this 

case, the court held that "federal prisoners who decide not 

to seek certiorari with the Supreme Court will have the 

period of limitations begin to run on the date this court 

issues the mandate in their direct criminal appeal." Id. at 

674. The court reached this conclusion after comparing the 

language of S 2255 with the language of the new limitations 

period for state defendants seeking habeas relief pursuant 

to 28 U.S.C. S 2254. Under S 2244(d)(1)(A), which was also 

enacted as part of AEDPA, a one-year period of limitation 

for state defendants begins to 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[.]" 28 U.S.C. S 2244(d)(1)(A). 

The Gendron court assumed that "direct review" in 

S 2244(d)(1)(A) means "review in the state's highest court," 

and noted that "Congress explicitly included the time for 

seeking leave to appeal with a state supreme court even if 

the petitioner elected not to do so." 154 F.3d at 674. The 

court further noted that "[s]uch additional language is 

lacking in S 2255." Id. The court inferred from this 

difference that "Congress intended to treat the period of 

limitations differently under the two sections," id., and it 

concluded that the judgment of a federal defendant who 

_________________________________________________________________ 

5. Section 2255 "afford[s] federal prisoners a remedy identical in scope 

to 

federal habeas." Davis v. United States, 417 U.S. 333, 343 (1974). 

 15 
chooses not to seek certiorari review becomes final when 

the court of appeals issues its mandate. We are 

unpersuaded by this analysis. We do not think the Gendron 

analysis affords adequate weight to the context of collateral 

proceedings so central to an analysis of finality under 

S 2255. 

Moreover, as is discussed in more detail in section V of 

this opinion, neither the court in Gendron nor the district 

court here considered the wording of the limitations 

provision contained in Chapter 154 of Title 28, which was 

enacted into law as part of AEDPA. We believe this 

omission undermines the holding of both of those courts. 

As noted above, the language of 28 U.S.C. S 2244(d)(1) 

parallels S 2255. The former provision sets forth the 

limitation period for persons held in state custody whose 

collateral challenges are governed by 28 U.S.C.S 2254. 

Section 2244(d)(1) provides in relevant part: 

 A 1-year period of limitation shall apply to an 

 application for a writ of habeas corpus by a person in 

 custody pursuant to the judgment of a State court. The 

 limitation period shall run from the latest of-- 

 (A) the date on which the judgment becamefinal by 

 the conclusion of direct review or the expiration of the 

 time for seeking such review[.] . . . 

28 U.S.C. S 2244(d)(1)(A) (emphasis added). Since S 2244 

specifically states that a state judgment of conviction 

becomes "final" upon the "conclusion of direct review or by 

the expiration of the time for seeking such review," it may 

at first appear that the absence of similar modifying 

language in S 2255 reflects a congressional intent to have 

the limitations period in the latter begin to run without 

regard to any additional period that may be consumed by 

an attempt to win discretionary review from the Supreme 

Court. However, neither the statutory scheme nor judicial 

precedent supports that interpretation. 

We have not previously had occasion to interpret 

S 2244(d)(1)(A) in the context presented here. However, the 

similarity between that provision and S 2255 requires that 

we consider whether the text of the former furthers our 

 16 
inquiry into Congress's intent in drafting the latter.6 

Notably, the district court and the court in Gendron did just 

that, opining that the different language of the two 

provisions "warrants individually tailored definitions of final 

judgment" for state and federal defendants. Kapral 973 F. 

Supp at 499; Gendron, 154 F.3d at 674. 

The government suggests that our recent opinions in

Burns and Miller have settled the issue of when a judgment 

becomes "final" under S 2244(d)(1)(A), and that those cases 

compel the conclusion that the limitations period under 

S 2255 runs from the date the court of appeals enters its 

judgment if the defendant chooses not to seek certiorari 

review. Appellee's Br. at 24-25. We disagree. 

In Burns, we were concerned with whetherS 2244's oneyear limitation period could be applied retroactively and 

thereby reduce the period for filing to less than one year for 

persons whose convictions and sentences had already

become "final" prior to AEDPA's enactment. We held that 

the one-year limitation could not be applied to habeas 

petitions that were filed before AEDPA was enacted. See 

134 F.3d at 111. We did not examine the language of

S 2244 in an attempt to determine when Congress intended 

a state conviction to become final for purposes of starting 

the one-year period in which habeas petitions must be filed. 

To the extent that we did comment upon the text ofS 2244, 

we stated that "federal inmates who wish to file motions . . . 

under 28 U.S.C. S 2255 must adhere to a one-year period 

of limitations virtually identical to that ofS 2244(d)(1)." Id. at 

111-12 (emphasis added). That is consistent with our 

decision here. 

In Miller, we were asked to decide if the one-year filing 

requirement of S 2244 is jurisdictional. There, a state 

inmate alleged that he was prevented from meeting the oneyear deadline because he had been transferred to different 

_________________________________________________________________ 

6. Our usual practice in AEDPA cases also counsels us to use this 

opportunity to interpret S 2244. See Miller, 145 F.3d at 618 n.1 ("[W]e 

have followed the practice, whenever we decide an AEDPA issue that 

arises under S 2254 and the same holding would analytically be required 

in a case arising under S 2255, or vice versa, of so informing the 

district 

courts."). 

 17 
institutions thus hindering his compliance with the oneyear requirement. We stated that if the requirement was 

jurisdictional, the district court would lack subject matter 

jurisdiction, but if it were intended only as a period of 

limitations, the court must apply the doctrine of equitable 

tolling to determine if the period had run. We held that the 

one-year period was a period of limitations, and remanded 

for a consideration of whether the petitioner could establish 

such unfairness as to toll the rigid application of the oneyear period. In so doing, we again noted the similarity 

between S 2244 and S 2255 and held that the latter was 

also subject to the doctrine of equitable tolling. See 145 

F.3d at 618 n.1. That is consistent with our analysis here, 

and to the extent that our discussion in either Miller or 

Burns suggests that the definition of "final" in S 2244 and 

S 2255 differs, our discussion would have been dicta and 

would not control our current inquiry. See Patel v. Sun Co., 

Inc., 141 F.3d 447, 462 & n.11 (3d Cir. 1998) (discussing 

the meaning of "dictum" and the reasons why it need not 

be given any weight). 

While the term "direct review" is not defined in 

S 2244(d)(1)(A), it is axiomatic that direct review of a state 

court criminal judgment includes the right to seek 

certiorari review in the United States Supreme Court. See 

Barefoot v. Estelle, 463 U.S. 880, 887 (1983) ("[T]he process 

of direct review . . ., if a federal question is involved, 

includes the right to petition this Court for a writ of 

certiorari."); Bell v. Maryland, 378 U.S. 226, 232 (1964) ("In 

the present case, the [state court judgment] is not yet final, 

for it is on direct review in this Court."); see also Bradley v. 

United States, 410 U.S. 605, 607 (1973) ("At common law, 

the repeal of a criminal statute abated all prosecutions 

which had not reached final disposition in the highest court 

authorized to review them."); Webb v. Beto , 457 F.2d 346, 

348 (5th Cir. 1972) (per curiam) (refusing "[t]o classify a 

judgment as not final while the case is on appeal to the 

highest state court, but final afterwards, even though on 

appeal to the United States Supreme Court"). Therefore, a 

state court criminal judgment is "final" (for purposes of 

collateral attack) at the conclusion of review in the United 

States Supreme Court or when the time for seeking 

certiorari review expires. Accord Ross v. Artuz , 150 F.3d 97, 

 18 
98 (2d Cir. 1998) ("Ross's conviction becamefinal [under 

S 2244(d)(1)(A)] when his time to seek direct review in the 

United States Supreme Court by writ of certiorari 

expired[.]"). 

The omission of S 2244's clarifying language from the 

mention of "final" in S 2255 is not sufficient to cause us to 

conclude that Congress intended a different concept of 

finality for state and federal defendants. As discussed 

above, that concept includes the period in which a 

defendant can seek discretionary review. Prior to the 

expiration of the time for certiorari review, a conviction is 

simply not "final" under either provision. 

We also see no principled reason to treat state and

federal habeas petitioners differently. Congress has used 

the term "final" to describe the type of judgment that will 

trigger the limitations period for both classes of petitioners. 

Section 2244(d)(1) and 2255's limitations periods were 

enacted as part of AEDPA, and both provisions are found in 

Chapter 153 of Title 28. Therefore, Congress's more lucid 

definition of "final" in S 2244(d)(1)(A) suggests that a 

judgment likewise becomes "final" within the meaning of 

S 2255 only when direct review in the United States

Supreme Court has concluded. See Sorenson v. Secretary of 

Treasury, 475 U.S. 851, 860 (1986) ("The normal rule of 

statutory construction assumes that identical words used 

in different parts of the same act are intended to have the 

same meaning.") (quotation marks and citation omitted); 

see also Baskin v. United States, 998 F. Supp. 188, 199 (D. 

Conn. 1998) (relying on the more descriptive language of 

S 2244 to hold that S 2255's limitations period begins to run 

at "the conclusion of direct review or the expiration of the 

time for seeking such review").7 

_________________________________________________________________ 

7. Of course, canons of construction are not absolute and must yield 

when other indicia of congressional intent suggest a different result. We 

find that AEDPA' language does not suggest a different result. We are, of 

course, aware that the difference between the wording of S 2244(d)(1)(A) 

and S 2255 could simply be the result of imprecise draftsmanship, and 

not at all an expression of congressional intent. See generally Lindh v. 

Murphy, 521 U.S. 320, ___, 117 S. Ct. 2059, 2068 (1997) ("[I]n a world 

of silk purses and pigs' ears, [AEDPA] is not a silk purse of the art of 

statutory drafting."). 

 19 
The government argues that "[b]ecause the requirement 

of exhaustion and the interest of comity play no part in 

actions by federal prisoners, the language of S 2244(d)(1) 

accommodating those concerns has no bearing or effect on 

the differently-worded [sic] S 2255." Appellee's Br. at 27. We 

disagree. While the exhaustion requirement generally is 

satisfied if the defendant's claims are fairly presented 

through to the state's highest court for review, see, e.g., 

Burkett v. Love, 89 F.3d 135, 138 (3d Cir. 1996), the 

meaning of "exhaustion" does not further our analysis of 

the proper interpretation of S 2244(d)(1)(A). Section 

2244(d)(1)(A) does not provide that the one-year period 

begins to run on the date the petitioner's claims are 

"exhausted"-- a term that Congress could easily have 

employed in the statute if that is what it meant. Rather, 

S 2244(d)(1)(A) provides that the limitation period begins to 

run at the "conclusion of direct review or the expiration of 

the time for seeking such review." That includes the right to 

review in the United States Supreme Court, and it is settled 

that the "conclusion of direct review" is not synonymous 

with "exhaustion of available state court remedies." See 

Wade v. Mayo, 334 U.S. 672, 681 (1948) (holding that, 

although certiorari review is part of the direct review 

process, an application for certiorari is not required to 

satisfy the exhaustion requirement). 

IV. 

Although we find that the distinction between the 

wording of S 2244(d)(1)(A) and S 2255 is insignificant insofar 

as a definition of "final" is concerned, we do find the 

distinction in the context in which Congress used"final" 

there as opposed to Chapter 154 of Title 28 to be 

significant. As mentioned above, we believe the analysis of 

both the court in Gendron and the district court here is 

undermined by the failure of those courts to consider the 

wording of Chapter 154 when interpreting S 2255. 

Congress enacted a new Chapter 154 of Title 28 as part 

of AEDPA. That Chapter sets forth the procedures that 

govern S 2254 petitions filed by state prisoners serving 

capital sentences in states that meet certain conditions set 

 20 
forth in the statute ("opt-in jurisdictions"). See 28 U.S.C. 

S 2261. Section 2263 provides in relevant part: 

 (a) Any application under this chapter for habeas 

 corpus relief under section 2254 must be filed in the 

 appropriate district court not later than 180 days after 

 final State court affirmance of the conviction and 

 sentence on direct review or the expiration of the time 

 for seeking such review. 

 (b) The time requirements established by subsection 

 (a) shall be tolled-- 

 (1) from the date that a petition for certiorari is 

 filed in the Supreme Court until the date of final 

 disposition of the petition if a State prisonerfiles the 

 petition to secure review by the Supreme Court of 

 the affirmance of a capital sentence on direct review 

 by the court of last resort of the State or otherfinal 

 State court decision on direct review[.]. . . 

28 U.S.C. S 2263(a)-(b)(1). 

Significantly, the limitations period in S 2263 runs from 

"final State court affirmance of the conviction and sentence 

on direct review." Congress's use of "State court" to modify 

the well-settled meaning of direct review (which includes 

the right to seek review in the Supreme Court), provides 

strong support for the conclusion that the limitations 

periods under S 2244 and S2255 - which lack an analogous 

modifier - run from the conclusion of Supreme Court

review. In SS 2244 and 2255, Congress spoke in terms of 

"finality", not in terms of "affirmance." 

Moreover, under S 2263, the limitations period begins to 

run before the defendant files a certiorari petition, as the 

statute expressly provides that the limitations period is 

"tolled" on the date a certiorari petition isfiled. Sections 

2244(d)(1)(A) and 2255, in contrast, do not expressly call 

for a tolling for certiorari proceedings. Tolling is 

unnecessary if the limitations period begins to run only 

after certiorari review has been completed. We believe that 

Congress did not mention tolling in S 2244 orS 2255

because Congress assumed tolling was unnecessary since it 

did not intend the limitations period to begin until after the 

 21 
time for certiorari review expired. Had Congress intended 

the limitations period to begin upon the conclusion of an 

appeal as of right, it would have provided for tolling to allow 

for a petition for certiorari to be acted upon, just as it did 

in Chapter 154. 

V. 

To summarize, we hold that a "judgment of conviction 

becomes final" within the meaning of S 2255 on the later of 

(1) the date on which the Supreme Court affirms the

conviction and sentence on the merits or denies the

defendant's timely filed petition for certiorari, or (2) the date 

on which the defendant's time for filing a timely petition for 

certiorari review expires. If a defendant does not pursue a 

timely direct appeal to the court of appeals, his or her 

conviction and sentence become final, and the statute of 

limitation begins to run, on the date on which the time for 

filing such an appeal expired. 

We affirmed Kapral's conviction and sentence by 

Judgment Order entered on February 13, 1996. Kapral did 

not file a petition for a writ of certiorari. Accordingly, his 

judgment of conviction became final within the meaning of 

S 2255 when his time for filing a petition for a writ of 

certiorari expired. Thus, the one-year period of limitation 

began to run 90 days from February 13, 1996, which was 

Monday, May 13, 1996. Since Kapral's motion wasfiled on 

April 29, 1997, it was timely. 

VI. 

For the foregoing reasons, we will vacate the district 

court's order dismissing Kapral's S 2255 motion, and we 

will remand this matter for further proceedings consistent 

with this opinion. 

 22 
ALITO, Circuit Judge, concurring: 

I join the opinion of the court, but I write separately to 

elaborate on my reasons for disagreeing with the Seventh 

Circuit's decision in Gendron v. United States , 154 F.3d 672 

(7th Cir. 1998), which conflicts with our decision here. Both 

Gendron and this case concern the new deadline for filing 

a motion under 28 U.S.C S 2255. The current version of 

S 2255 imposes a one-year period of limitation and provides 

that this limitation period shall run from the latest of four 

specified dates. One of those dates is "the date on which 

the judgment of conviction becomes final." 28 U.S.C. 

S 2255. This is the language at issue in both Gendron and 

the case now before us. 

If one looks at only the text of S 2255, the phrase "the 

date on which the judgment of conviction becomesfinal" is 

susceptible to two entirely reasonable interpretations. It 

may mean the date on which occurs the last step in the 

process of direct appeal. See The Random House Dictionary 

of the English Language 532 (1967) (defining"final" to 

mean, among other things, "last in place, order, or time"). 

Alternatively, the phrase "the date on which the judgment 

of conviction becomes final" may reasonably be interpreted 

to mean the date on which the conviction is no longer 

subject to reversal by means of the process of direct appeal. 

See id. (defining "final" to mean, among other things, 

"precluding further controversy on the questions passed 

upon"). 

These two interpretations produce the same results in 

those cases in which the defendant exhausts the process of 

direct review, i.e., appeals to the court of appeals and then 

petitions for a writ of certiorari. In those cases, the last step 

in the process of direct appeal occurs at the same time 

when the defendant's conviction becomes immune from

reversal on direct appeal, i.e., when the Supreme Court 

denies certiorari or, if certiorari is granted, when the 

Supreme Court hands down its decision on the merits of 

the case. These two interpretations, however, produce 

different results in those cases, such as this case and 

Gendron, in which the defendant does not exhaust the 

direct-review process. In cases like this one and Gendron, 

the last step in the process of direct appeal occurs when 

 23 
the court of appeals' judgment is entered, but the judgment 

of conviction does not become immune from reversal 

through the process of direct appeal until the time for 

petitioning for certiorari expired -- generally 90 days after 

the entry of the court of appeals' judgment. See Supreme 

Court Rule 13.1. Thus, in those cases in which a defendant 

appeals to the court of appeals but does not seek certiorari, 

the first interpretation will generally give the defendant one 

year from the entry of the court of appeals' judgment to file 

a motion under S 2255, whereas the second interpretation 

will generally give the defendant 15 months from the entry 

of the court of appeals' judgment to file that motion. 

As I have already said, I believe that the text ofS 2255 

may reasonably be interpreted in either of these ways. 

Indeed if I were compelled to choose one interpretation 

based solely on the text of that provision, I wouldfind the 

choice exceedingly hard. Moreover, I think that a 

reasonable legislator could easily choose either 

interpretation. As noted, this choice matters in only those 

cases in which the defendant does not exhaust all of the 

steps of the direct review process, i.e., chiefly in those cases 

in which a defendant does not petition for certiorari. In 

such cases, a legislator could reasonably think that the 

one-year limitation period should begin to run upon the 

entry of the court of appeals' judgment, because all 

defendants, whether or not they petition for certiorari, 

should have one year (and no more) from the end of the 

direct review process to prepare and file a S 2255 motion. 

On the other hand, recognizing that some defendants who 

do not end up petitioning for certiorari nevertheless spend 

some of the time prior to the certiorari deadline considering 

that option, a legislator could reasonably think that such 

defendants should have a full year from that deadline to 

devote to the preparation of a S 2255 motion. Both of these 

policy choices are reasonable, and viewed prospectively the 

difference between them is hardly of much significance. 

As both the Gendron court and our panel recognize, 

however, the relevant language in S 2255 must be 

considered together with 28 U.S.C. S 2244(d)(1), which sets 

a one-year period of limitation for the filing of a federal 

habeas petition by a state prisoner. This provision, like the 

 24 
portion of S 2255 at issue in this case, was enacted as part 

of the Antiterrorism and Effective Death Penalty Act of 1996 

("AEDPA"). Moreover, S 2244(d)(1), like the current version 

of S 2255, provides that the limitation period for a state 

prisoner filing a federal habeas petition begins to run from 

the latest of four specified dates, one of which is "the date 

on which the judgment became final by the conclusion of 

direct review or the expiration of the time for seeking such 

review." 28 U.S.C. S 2244 (d)(1). Accordingly, we must 

decide what to make of the fact that S 2255 refers to "the 

date on which the judgment of conviction becomesfinal," 

whereas S 2241(d)(1) refers to "the date on which the 

judgment became final by the conclusion of direct review or 

the expiration of the time for seeking such review." 

Tackling this problem, the Gendron court invoked a 

canon of interpretation set out in Russello v. United States, 

464 U.S. 16, 23 (1983), viz., that "[w]here Congress 

includes particular language in one section of a statute but 

omits it in another section of the same Act, it is generally 

presumed that Congress acts intentionally and purposely in 

the disparate inclusion or exclusion."1 Noting that Congress 

included the phrase "by the conclusion of direct review or 

the expiration of the time for seeking such review" in 

S 2244(d)(1) but omitted that phrase fromS 2255, the 

Gendron court concluded that the concept of the date on 

which a judgment becomes final must mean something 

different under S 2255 than it does underS 2244(d)(1), and 

the Gendron court then held that under S 2255 a judgment 

becomes final upon the conclusion of direct review.

I would not quarrel with the canon set out in Russello 

even if it were my prerogative to do so, but, I do not agree 

with the Seventh Circuit's use of the canon in Gendron. It 

is important to recognize that this canon does not purport 

to lay down an absolute rule and that, like every other 

canon, it is "simply one indication of meaning; and if there 

are more contrary indications . . . it must yield." Antonin 

Scalia, A Matter of Interpretation 27 (1997). The way in 

_________________________________________________________________ 

1. The Gendron court cited Hohn v. United States, 118 S. Ct. 1969, 1977 

(1998), and McNutt v. Board of Trustees of Univ. of Ill., 141 F.3d 706, 

709 

(7th Cir. 1998), which both quoted Russello. 

 25 
which the canon was employed in Russello illustrates how 

it may properly be used. 

Russello concerned the interpretation of a provision of the 

Racketeer Influenced and Corrupt Organizations"(RICO)" 

statute, 18 U.S.C. S 1963(a)(1), which, at that time, 

authorized the forfeiture of "any interest" that a convicted 

RICO defendant had "acquired . . . in violation of [18 

U.S.C.] S 1962," the provision setting out the activities 

prohibited by the RICO statute. The defendant in Russello 

argued that the term "interest" referred only to an interest 

in the RICO enterprise itself and not to profits or proceeds 

derived from racketeering. In rejecting this argument, the 

Supreme Court began with the ordinary meaning of the 

term "interest" and observed, after quoting several

dictionary definitions, that it was "apparent that the term 

`interest' comprehends all forms of real and personal 

property, including profits and proceeds." 464 U.S. at 21. 

Then, as one of several reasons for rejecting the defendant's 

artificially narrow interpretation of the term"interest," the 

Court invoked the canon upon which the Gendron court 

relied. Noting that 18 U.S.C. S 1963(a)(1) spoke "broadly of 

`any interest . . . acquired,' " while the very next subsection, 

18 U.S.C. S 1963(a)(2), "reache[d] only `any interest' in . . . 

any enterprise which [the defendant] had established[,] 

operated, controlled, conducted, or participated in the 

conduct of, in violation of section 1962,' " the Court 

observed that "[w]here Congress includes particular

language in one section of a statute but omits it in another 

section of the same Act, it is generally presumed that 

Congress acts intentionally and purposely in the disparate 

inclusion or exclusion.' " 464 U.S. at 23 (citation omitted). 

The Court added: 

 We refrain from concluding here that the differing 

 language in the two subsections has the same meaning 

 in each. We would not presume to ascribe this 

 difference to a simple mistake in draftsmanship. 

Id. 

Russello, then, was a case in which the statutory 

language at issue had a plain meaning, an argument was 

made that the statutory language should be interpreted 

 26 
more narrowly than that plain meaning, another provision 

of the same statute used different language to convey that 

narrower meaning, and the Court therefore presumed that 

the provision at issue meant what its language plainly 

stated and did not have the artificially narrow meaning 

explicitly set out in the other, more narrowly crafted 

statutory section. 

The situation in the present case is quite different in 

several important ways. Here, the relevant language in 

S 2255, unlike the statutory language at issue in Russello, 

does not have a single, obvious meaning. Instead, as I have 

said, that language may be interpreted in two entirely 

reasonable ways. Moreover, both of these interpretations -- 

that a judgment of conviction becomes final by"the 

conclusion of direct review" and that a judgment of

conviction becomes final by "the expiration of the time for 

seeking such review" -- are set out in S 2244(d)(1). Invoking 

the Russello canon, the Gendron court says that it is 

refusing to read into S 2255 the extra explanatory language 

contained in S 2244(d)(1), but actually the Gendron court in 

effect reads into S 2255 part of that explanatory language, 

viz., the part that says that a judgment of conviction 

becomes final "by the conclusion of direct review." 28 

U.S.C. S 2244(d)(1). 

The Russello canon is based upon a hypothesis of careful 

draftsmanship. See 464 U.S. at 23 ("We would not presume 

to ascribe this difference to a simple mistake in 

draftsmanship.") But the Gendron court's interpretation 

produces a result that is inconsistent with that hypothesis. 

According to the Gendron court, the hypothetical careful 

draftsman responsible for crafting S 2255 used the phrase 

"the date on which the judgment of conviction becomes 

final" to mean the date on which direct review concludes, 

even though a careful draftsman would have realized that 

this phrase is susceptible to another, entirely reasonable 

interpretation. Moreover, according to the Gendron court, 

this hypothetical careful draftsman took this approach even 

though he or she included in S 2244(d)(1) language that 

expressly conveys this very meaning, i.e., "by the 

conclusion of direct review." This simply does not make 

sense. A careful draftsman who laid S 2255 andS 2244(d)(1) 

 27 
side by side would not have taken such an approach.

Rather, a careful draftsman would have realized that, just 

as it was necessary in S 2244(d)(1) to explain what was 

meant by the date on which a judgment became final, so it 

was equally necessary to provide such an explanation in 

S 2255. 

For these reasons, it seems unlikely that the disparate 

language in SS 2244(d)(1) and 2255 resulted from a careful 

drafting decision -- and this is borne out by an 

examination of the origins of these provisions. At the 

beginning of the 104th Congress, Senator Dole introduced 

S.3, "The Violent Crime Control and Law Enforcement

Improvement Act of 1995," which among other things,

proposed to reform federal habeas corpus practice. Like 

many prior habeas reform bills introduced during the 

preceding decade, Section 508 of S.3 imposed a limitation 

period for the filing of S 2255 motions and provided for this 

period to run from the latest of four dates, including "the 

date on which the judgment of conviction becomesfinal. 

See, e.g., S.238, "Reform of Federal Intervention in State 

Proceedings Act of 1985," 99th Cong. S 6 (1985). This 

language, of course, is precisely the same as that now 

contained in S 2255. 

Another portion of section 508 provided for S 2244 to be 

amended to include a one-year limitation period forfiling a 

federal habeas petition, but this proposed amendment-- 

again following the pattern of prior unsuccessful habeas 

reform bills2 -- differed from the analogous language now in 

S 2244(d)(1). This proposed amendment provided for the 

one-year period to run from the latest of 

 "(1) the date on which State remedies are e xhausted; 

 "(2) the date on which the impediment to fili ng an 

 application created by State action in violation of the 

 Constitution or laws of the United States is removed, 

 where the applicant was prevented from filing by such 

 State action; 

 "(3) the date on which the Federal constitution al right 

 asserted was initially recognized by the Supreme Court, 

_________________________________________________________________ 

2. See, e.g., id. S 2, 

 28 
 where the right has been newly recognized by the 

 Court and is made retroactively applicable; or 

 "(4) the date on which the factual predicate of the 

 claim or claims presented could have been discovered 

 through the exercise of due diligence." 

S.3, 104th Cong. S 508 (1995) (emphasis added). 

Several months after S.3 was introduced, Senators 

Specter and Hatch sponsored S.623, the "Habeas Corpus 

Reform Act of 1995," which took a different approach with 

respect to the date on which the limitation period should 

begin to run for federal habeas claims asserted by state 

prisoners. Instead of providing, as S.3 had, for this period 

to begin to run from "the date on which State remedies are 

exhausted," S.623 provided (as S 2244(d)(1) now does) for 

this period begin to 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." S.623, 

104th Cong. S 2 (1995). At the same time, S.623, like 

current S 2244(d)(2), provided for the one-year period to be 

tolled during the pendency of a properly filed state 

application for post-conviction or other collateral review. Id. 

Senator Specter's remarks when he introduced S.623 

suggest the reason for this new approach. Senator Specter 

said that it was "necessary to end the abuse in which 

petitioners and their attorneys" then engaged in capital 

cases, viz., waiting until a death warrant was signed before 

filing a federal habeas petition. 141 Cong. Rec. S4592 (daily 

ed. Mar. 24, 1995). Senator Specter also complained about 

"the endless delays" caused by the exhaustion requirement. 

Id. Based on these remarks, it is reasonable to infer that 

the reason for the new approach taken in S.623 was to 

force state prisoners, upon the completion of direct review, 

promptly to commence either a state post-conviction relief 

proceeding (which would toll the limitation period) or a 

federal habeas proceeding. Thus, the phrase "the date on 

which the judgment became final by the conclusion of 

direct review or the expiration of the time for seeking such 

review" seems to have been employed to make it clear that 

the approach taken in S.3 and prior bills was being

changed. Unfortunately, S.623 did not modify the language 

 29 
used in S.3 and previous bills concerning the one-year 

period for filing S 2255 motions. 

On April 19, 1995, the federal building in Oklahoma City 

was bombed, and on April 27, Senator Dole introduced 

S.735, the "Comprehensive Terrorism Protection Act of 

1995." This bill incorporated the habeas reform provisions 

of S.623. See 141 Cong. Rec. S7597 (daily ed. May 26, 

1995) (remarks of Sen. Hatch); id. at S7585 (remarks of 

Sen. Specter); 141 Cong. Rec. S7803 (daily ed. June 7, 

1995) (remarks of Sen. Specter); 142 Cong. Rec. S3472 

(daily ed. Apr. 17, 1996) (remarks of Sen. Specter). S.735 

passed the Senate and the House with the relevant 

amendments to SS 2244(d)(1) and 2255 essentially 

untouched.3 

Based on the text of SS 2244(d)(1) and 2255 and the

history set out above, I conclude that S 2255's reference to 

"the date on which the judgment of conviction becomes 

final" and S 2244(d)(1)'s reference to"the date on which the 

judgment became final by the conclusion of direct review or 

the expiration of the time for seeking such review" mean 

the same thing. I reach this conclusion for three chief 

reasons: first, the statutory text strongly suggests that the 

difference in language did not result from a careful drafting 

choice; second, the legislative history suggests that this 

difference in language is instead a product of the vagaries 

of the legislative process; and third, while I think that a 

legislator could reasonably choose to have the one-year 

limitation period begin either when direct review ends or 

when the opportunity for direct review expires, I think it 

would be odd for a legislator to take one approach in cases 

involving federal habeas petitions filed by state prisoners 

and the other in cases involving S 2255 motions filed by 

federal prisoners. Consequently, I believe that a"judgment 

of conviction becomes final," within the meaning of S 2255 

_________________________________________________________________ 

3. No house or Senate Report was submitted, and the Conference Report 

contained only one brief reference to this provision. See H.R. Rep. No. 

104-518, at 111, (1996) reprinted in 1996 U.S.C.C.A.N. 924, 944 ("This 

title . . . sets a one year limitation on an application for a habeas writ 

. . . ."). 

 30 
on the date when direct review ends and there is no

opportunity for further direct review. 

A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

 31