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. e du/thir dc ir c uit_1999/26Filed 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 AppellantGeorge 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 limitatio ns provision of 28 U.S.C. S 2255. The district court r uled that the period of limitations begins to run when a defe ndant 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 fo r certiorari, but he filed his S 2255 motion within o ne year of

the date on which his time to seek certiorari revie w expired. We hold that his filing was timely, and we will rev erse and remand for proceedings consistent with this opinion

.

I. Background

Kapral pled guilty to income tax evasion, and consp iracy to distribute and to possess with intent to distrib ute at least 700 grams of methamphetamine. He was sentence d to 120 months of imprisonment and 8 years of supervise d release on May 25, 1995. We affirmed the judgment o f conviction on February 13, 1996. Kapral did notfile a petition for a writ of certiorari in the United Sta tes Supreme

Court.

On April 29, 1997, Kapral filed a counseled motion under S 2255 in which he claimed that his prior counsel p rovided ineffective assistance and that the resulting plea was therefore not a knowing and intelligent one. The di strict court did not reach the merits of Kapral's claims, however,

2as the court ruled that his motion was untimelyfile d.

Under S 2255, a motion must be filed within one yea r of "the date on which the judgment of conviction becom es final." The district court interpreted that languag e to mean that a defendant must file within one year of the d ate on

which this court affirms the defendant's conviction and sentence. Since Kapral filed his motion more than o ne year after we affirmed on direct review, the district co urt dismissed his motion with prejudice. We granted Kap ral's request for a certificate of appealability. See 28 U.S.C. S 2253(c)(1)(B). The district court had jurisdictio n 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 sta tutory 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 t o a motion under this section. The limitation period sh all run from

the latest of--

(1) the date on which the judgment of convic tion becomes final;

(2) the date on which the impediment to maki ng a motion created by governmental action in

violation of the Constitution or laws of the United States is removed, if the movant was prevent ed from making a motion by such governmental action;

(3) the date on which the right asserted was initially recognized by the Supreme Court, i f that right has been newly recognized by the Supre me Court and made retroactively applicable to c ases on collateral review; or

(4) the date on which the facts supporting t he claim or claims presented could have been discovered through the exercise of due dilig ence.

328 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 requi rement for bringing a motion under S 2255 is a statute of limitations subject to equitable tolling, not a jur isdictional bar). It was enacted as part of the Antiterrorism a nd Effective Death Penalty Act of 1996 ("AEDPA"), whic h was signed into law on April 24, 1996. In Burns v. Mort on, 134 F.3d 109 (3d Cir. 1998), we held that "S 2255 motio ns filed on or before April 23, 1997, may not be dismissed f or 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. 2 66 (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 incarcerate d, his motion was mailed by counsel and received by the di strict court clerk's office on April 29, 1997, which was a fter 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 h ave deemed his motion timely filed on April 22, 1997, which is the date counsel deposited the motion in the mail. Kapral advances s everal 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] F ederal 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 inf ormation and that, under principles of equity, his motion should be de emed filed on the date it was mailed. The record reflects that Kapral's co unsel is an experienced practitioner who should have known or verified the elementary rules that govern the filing of a S 2255 motion. We reject, th erefore, the suggestion that counsel's alleged reliance on misinformation f rom 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, 7 7 (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 o ffice. See Rule 3(b),

Rules

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

conviction becomes final" within the meaning ofS 22 55, which is an issue of first impression for this Cour t. The district court held that finality occurs when a cou rt of appeals affirms the judgment of conviction on direc t review even if the defendant subsequently files a timely p etition with the Supreme Court for certiorari review. The d istrict 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 omitte d). The

district court then drew a distinction between an a ppeal as of right and a discretionary appeal. Since the latt er was so infrequently granted, the district court reasoned t hat a

defendant's conviction was final when the defendant no longer had a right (as opposed to a hope) of furthe r review.

The district court stated:

The Court [ ] declines to define final judgm ent 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 dis cretion, the Supreme Court rarely grants certiorari in se ntencing cases. In addition, having exercised the app eal of right, the petitioner has had a fair opportunity to present his federal claims in an appellate forum. Theref ore, a judgment perfected by appeal may fairly be d eemed a

___________________________________________________ ______________

Governing S 2255 Proceedings in the United States D istrict Courts; see also Gonzalez v. United States, 2 F. Supp.2d 155, 1 56 (D. Mass. 1998) ("[A] section 2255 petition is filed upon the recei pt 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]."); Uni ted States v. Nguyen, 997 F. Supp. 1281, 1288 (C.D. Cal. 1998) ("[A] S 22 55 motion is deemed filed on the date it is received (and perhaps lodge d) 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 hi s motion was received on that date. Thus, the district court did not err in treating his motion as filed on April 29, 1997.

5final 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 improba bility of successful discretionary appeal and the fair opport unity for review afforded by termination of appeals as of rig ht.2 The district court further opined that "an equitable to lling" of the limitations period would apply if the Supreme C ourt grants a defendant's petition for certiorari review . See id. at

499 n.7.

Kapral argues that a defendant has a right to petit ion the Supreme Court for certiorari review and that the ti me needed to do so cannot be omitted from consideratio ns of finality. Accordingly, Kapral contends that theS 22 55 clock begins to tick only after the 90-day period to file a certiorari petition has expired. If a certiorari petition is t imely filed, he argues, the clock would start to tick when the S upreme Court either denies certiorari or affirms the judgm ent of conviction on the merits. Notably, the government a grees with Kapral that if a defendant timely seeks certio rari review, the judgment of conviction does not becomef inal until the Supreme Court denies certiorari or affirm s on the merits. Appellee's Br. at 18-20. The government urg es that we affirm, however, on the ground that when a defen dant, like Kapral, chooses not file a certiorari petition , his judgment of conviction becomes final on the date th is 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 interpreti ng a statute is the language of the statute itself." Con sumer 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 term s seriatim.

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2. The district court was also persuaded by the dif ference between the wording of 28 U.S.C. S 2244(d)(1)(A) and that of S 2255. We will discuss

that distinction below.

6In federal criminal practice, "judgment of convicti on"

refers to a formal document, signed by the trial ju dge and entered by the clerk of the district court, that se ts forth "the plea, verdict or findings, the adjudication, a nd the sentence." FED. R. CRIM. P. 32(d)(1); see also BLAC K'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 co nviction "includes both the adjudication of guilt and the se ntence." Deal v. United States, 508 U.S. 129, 131 (1993); se e 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 entere d only after the trial court has completed the sentencing proces s, see Howard v. United States, 135 F.3d 506, 509 (7th Cir . 1998), and thus the term is commonly understood to refer t o both

the conviction and sentence.

Under S 2255, a defendant is permitted to collatera lly attack both the conviction and sentence. See, e.g., McFarland v. Scott, 512 U.S. 849, 859 (1994) ("[C]r iminal defendants are entitled by federal law to challenge their conviction and sentence in habeas corpus proceeding s."). We have no reason to doubt that Congress used the t erm "judgment of conviction" in S 2255 in accordance wi th this well-settled meaning. Thus, S 2255's limitation per iod 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 appe al, 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 convictio n is entered on the district court docket; the date on w hich the court of appeals affirms the conviction and sentenc e or the time for appeal expires; or the date on which the S upreme Court affirms on the merits, denies a timely filed petition for certiorari, or the time to seek certiorari revi ew expires. We must determine which concept of "finality" Congr ess intended in S 2255. Our inquiry is guided by our aw areness that Congress enacted S 2255's limitations period t o control collateral attacks upon judgments obtained in feder al criminal cases. As the Supreme Court has noted,

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

the company it keeps, while not an inescapab le rule, is often wisely applied where a word is capable of many meanings in order to avoid the giving of uni ntended breadth to the Acts of Congress.

Jarecki v. G.D. Searle & Co., 367 U.S. 303, 307 (19 61); see also Deal v. United States, 508 U.S. 129, 132 (1993 ) ("[A] fundamental principle of statutory construction (an d, indeed, of language itself) [is] that the meaning o f a word cannot be determined in isolation, but must be draw n from the context in which it is used.").

The government submits the following dictionary definition of "final" in support of its interpretat ion of the

statute:

1. pertaining to or coming at the end; last in place, order, or time .... 2. ultimate .... 3 . con clusive or decisive: a final decision. 4. Law. a . prec luding further controversy on the questions passed upon: Th e judicial determination of the Supreme Court is final. b . determining completely the rights of the par ties, 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 ENCYCLOPED IC UNABRIDGED DICTIONARY OF THE ENGLISH LANGUAGE532 (1 989 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 fu rther dispute and which sets at rest cause of action betw een the parties. One which settles rights of parties respec ting the subject matter of the suit and which concludes them until it is reversed or set aside.... Also, a decision fr om 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 re view, 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"f inal" within the context of S 2255, a provision that auth orizes the commencement of a collateral attack upon a judgment of

8conviction. It is the action of the Supreme Court i n ruling

on the certiorari petition that brings about closur e on direct review and elevates the decision of the court of ap peals to a level of finality that is "the last in place, ord er or time," "precludes further controversy on the questions pas sed upon," and is "a decision from which no appeal or w rit of

error can be taken."

It is, of course, true that when a court of appeals issues its judgment on direct review, the resulting mandat e is "final" in the sense that it leaves nothing left to be decided on the merits. However, the decision of the distric t court is final in the same sense, and no less worthy of bein g considered "conclusive or decisive" by that measure . Both judgments are subject to further review, and wefind

, therefore, that neither is "final" within the meani ng 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 tha t "precludes further controversy on the questions pas sed upon," the one "from which no appeal or writ of err or can be taken." We are persuaded that Congress intended this concept of finality to control petitions filed unde r S 2255's one-year limitations period.

As noted, a collateral attack is generally inapprop riate if the possibility of further direct review remains op en:

A district court should not entertain a habe as corpus petition while there is an appeal pending in [the court of appeals] or in the Supreme Court. The rea son for the rule is that disposition of the appeal may r ender the [habeas corpus writ] unnecessary. This is tr ue if the appeal is still pending [in the court of app eals] . . . . It is even more appropriate . . . when review o f the conviction is pending before the Supreme Cou rt.

Feldman v Henman, 815 F.2d 1318, 1320-21 (9th Cir. 1987) (internal quotation marks and citations omitt ed). This is a procedural reality regardless of the probabili ty that the Supreme Court will actually grant certiorari. Thus, if a defendant files for certiorari review, direct revie w is ongoing, and the commencement of a simultaneousS 22 55

9proceeding would be inappropriate. Accordingly, we hold

that a judgment of conviction does not become "fina l" within the meaning of S 2255 until the Supreme Cour t

affirms the conviction and sentence on the merits o r denies a timely filed petition for certiorari. Accord Unit ed States v. Simmonds, 111 F.3d 737, 744 (10th Cir. 1997) ("Mr. Simmonds' conviction became `final' after the Supre me Court denied certiorari[.]").

In addition, if a defendant does not file a certior ari petition, the judgment of conviction does not becom e"final" until the time for seeking certiorari review expire s. A defendant has 90 days from the date on which the co urt of appeals affirms the judgment of conviction tofile a petition for a writ of certiorari.3 During that 90-day perio d, the defendant retains the right to seek to overturn the judgment of the court of appeals in the Supreme Cou rt. Only when the time for seeking certiorari review ha s expired is it appropriate for a defendant to commen ce a collateral attack on the conviction and sentence. S ee 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 ju dgment 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 Co urt, simply because it is unlikely that the Supre me Court will grant certiorari. If a petitioner shoul d awaitfinal disposition of direct appeal before petition ing for collateral relief, that final disposition sh ould logically

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3. Supreme Court Rule 13 provides in relevant part:

1. Unless otherwise provided by law, a petit ion 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 Appeal s 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 l ast resort is timely

when it is filed with the Clerk within 90 days af ter entry of the order denying discretionary review.

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

when it becomes increasingly unlikely that s uch 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 th e present case was greatly influenced by the low prob ability of the Supreme Court actually granting discretionar y 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 AEDP A. 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 hab eas corpus that results from delayed and repetit ivefilings . . . while preserving the availability of d iligently sought review. . . . Defining the date of final jud gment of conviction as the date of the appeals court' s decision facilitates the congressional intent underly ing the AEDPA. Specifically, it counters habeas corp us 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 22 55.

Kapral, 973 F. Supp at 498 (internal quotation mark s and citations omitted). We find, however, that AEDPA's purpose is best furthered by an interpretation of S 2255 th at 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 r eview has been completed. Recognizing that one is allowed 90 days to file a petition for certiorari does not mitigate th e congressional objective of imposing time limits whe re none previously existed.4

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4. See 142 CONG. REC. H3606 (daily ed. Apr. 18, 199 6) ("I introduced this legislation . . . to impose a statute of limitation s on the filing of

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

11In 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 pet ition 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 announce d in Batson v. Kentucky, 476 U.S. 79 (1986) would be app lied to convictions that had become final prior to Batson b eing decided. The Court held that, under its precedent, the answer to that inquiry required a "three-pronged an alysis

. . . both to convictions that were final and to co nvictions pending on direct review" to determine if Batson ap plied in a particular instance. The Court then stated: "By`f inal' we mean a case in which a judgment of conviction has b een 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 3 21 n.6.

Moreover, in Teague v. Lane, 489 U.S. 288, 310 (198 9), the Court held that federal habeas corpus relief ba sed upon a "new rule" generally is unavailable if the rule w as announced after the defendant's conviction and sent ence became "final." See also Caspari v. Bohlen , 510 U. S. 383, 389 (1994). In the wake of Teague, "[a] threshold i nquiry in every habeas case . . . is whether the court is obl igated to apply the Teague rule to the defendant's claim." Id .; see also Schiro v. Farley, 510 U.S. 222, 228 (1994). Fo r purposes of a Teague analysis, a defendant's judgme nt of conviction becomes final (1) on the date the Suprem e Court denies certiorari, see, e.g., Stringer v. Black, 50 3 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 proceedi ngs to begin to run before a legal event that may give ris e to a

12claim for collateral relief -- i.e., the announceme nt 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 sh ould 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 T eague analysis.

Furthermore, while Congress has imposed a one-year limitation on the commencement of collateral procee dings, it does not appear that Congress intended to encour age the commencement of collateral proceedings before a def endant 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 dire ct review is ongoing would be "wasteful and pointless if the conviction is reversed by the Supreme Court." Appel lee'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 collater al review, or even dissuade the defendant from seeking collate ral review. For these reasons, and to ensure the orderl y 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 6 38, 638-39 (1st Cir. 1980) (holding that "in the absenc e of `extraordinary circumstances' the `orderly administ ration of criminal justice' precludes a district court from c onsidering a S 2255 motion while review of the direct appeal i s still pending"); United States v. Davis, 604 F.2d 474, 48 4 (7th Cir. 1979) (same); Welsh v. United States, 404 F.2d 333 (5th Cir. 1968) (same); Womack v. United States , 3 95 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 No te (1997) (S 2255 motion "is inappropriate if the mova nt 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

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

a simultaneous collateral proceeding before the Sup reme Court has ruled. This would only impair the orderly administration of criminal proceedings by delaying the

ultimate resolution of both direct and collateral r eview. If, however, the time for petitioning for certiorari re view is allowed to expire before the one-year limitation pe riod begins to run, collateral proceedings rarely will b e 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 bef ore a defendant's judgment of conviction is deemed "final "-- a label that, in a collateral proceeding, carries a p resumption that the defendant "stands fairly and finally convi cted." 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 serv es 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. Appelle e's Br. at 20-21. We find this argument unpersuasive. Wefin d no indication in either the text of AEDPA or its legis lative 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 exp iration of the 90-day period for seeking certiorari review wil l somehow thwart AEDPA's goal of speeding up the collateral r eview 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 defendant s from delaying the commencement of collateral proceedings . We do not believe that the collateral review process w ill be slowed in any meaningful way if defendants are affo rded 90 days to consult with counsel and to consider whethe r it would be appropriate to exercise their right to see k

certiorari review.

In addition, we reject the suggestion that, because

14AEDPA has imposed stringent requirements for seekin g and

obtaining collateral relief, S 2255 must be interpr eted to provide as little time as possible for a defendant to file for collateral relief. The "Great Writ" occupies far to o important a place in our jurisprudence to justify such an ass umption 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 appea ls 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 bri efs in this case, the court held that "federal prisoners who de cide 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 compar ing the language of S 2255 with the language of the new lim itations period for state defendants seeking habeas relief p ursuant to 28 U.S.C. S 2254. Under S 2244(d)(1)(A), which w as also enacted as part of AEDPA, a one-year period of limi tation for state defendants begins to run from "the date o n which the judgment became final by the conclusion of dire ct review or the expiration of the time for seeking su ch 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 highes t court," and noted that "Congress explicitly included the ti me for seeking leave to appeal with a state supreme court even if the petitioner elected not to do so." 154 F.3d at 6 74. The court further noted that "[s]uch additional languag e is lacking in S 2255." Id. The court inferred from thi s difference that "Congress intended to treat the per iod of limitations differently under the two sections," id ., and it concluded that the judgment of a federal defendant who

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

to federal habeas." Davis v. United States, 417 U.S. 3 33, 343 (1974).

15chooses 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 G endron analysis affords adequate weight to the context of collateral proceedings so central to an analysis of finality u nder

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 limitation s provision contained in Chapter 154 of Title 28, whi ch was enacted into law as part of AEDPA. We believe this omission undermines the holding of both of those co urts.

As noted above, the language of 28 U.S.C. S 2244(d) (1) parallels S 2255. The former provision sets forth t he limitation period for persons held in state custody whose collateral challenges are governed by 28 U.S.C.S 22 54. 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 becamefi nal by the conclusion of direct review or the expir ation 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 convic tion becomes "final" upon the "conclusion of direct revi ew or by the expiration of the time for seeking such review, " it may at first appear that the absence of similar modifyi ng language in S 2255 reflects a congressional intent to have the limitations period in the latter begin to run w ithout regard to any additional period that may be consume d by an attempt to win discretionary review from the Sup reme Court. However, neither the statutory scheme nor ju dicial precedent supports that interpretation.

We have not previously had occasion to interpret S 2244(d)(1)(A) in the context presented here. Howe ver, the similarity between that provision and S 2255 requir es that

we consider whether the text of the former furthers our

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

Notably, the district court and the court in Gendro n did just that, opining that the different language of the tw o provisions "warrants individually tailored definiti ons 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 j udgment becomes "final" under S 2244(d)(1)(A), and that tho se cases compel the conclusion that the limitations period u nder S 2255 runs from the date the court of appeals ente rs its judgment if the defendant chooses not to seek certi orari review. Appellee's Br. at 24-25. We disagree.

In Burns, we were concerned with whetherS 2244's on eyear limitation period could be applied retroactive ly and thereby reduce the period for filing to less than o ne 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 hab eas 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 int ended 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 mo tions . . . under 28 U.S.C. S 2255 must adhere to a one-year pe riod of limitations virtually identical to that ofS 2244 (d)(1)." Id. at 111-12 (emphasis added). That is consistent with ou r decision here.

In Miller, we were asked to decide if the one-year filing requirement of S 2244 is jurisdictional. There, a s tate inmate alleged that he was prevented from meeting t he oneyear deadline because he had been transferred to di fferent

___________________________________________________ ______________

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 A EDPA issue that arises under S 2254 and the same holding would anal ytically be required in a case arising under S 2255, or vice versa, of s o informing the

district
courts.").

17institutions thus hindering his compliance with the oneyear requirement. We stated that if the requirement was jurisdictional, the district court would lack subje ct matter jurisdiction, but if it were intended only as a per iod of limitations, the court must apply the doctrine of e quitable tolling to determine if the period had run. We held that the one-year period was a period of limitations, and re manded 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 simila rity

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 analys is here,

and to the extent that our discussion in either Mil ler or Burns suggests that the definition of "final" in S 2244 and S 2255 differs, our discussion would have been dict a and would not control our current inquiry. See Patel v. Sun Co., Inc., 141 F.3d 447, 462 & n.11 (3d Cir. 1998) (disc ussing 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 Cour t. See Barefoot v. Estelle, 463 U.S. 880, 887 (1983) ("[T] he process of direct review . . ., if a federal question is in volved, includes the right to petition this Court for a wri t 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 al so Bradley v. United States, 410 U.S. 605, 607 (1973) ("At common law, the repeal of a criminal statute abated all prosecu tions which had not reached final disposition in the high est court authorized to review them."); Webb v. Beto , 457 F. 2d 346, 348 (5th Cir. 1972) (per curiam) (refusing "[t]o cl assify a judgment as not final while the case is on appeal t o the highest state court, but final afterwards, even tho ugh on appeal to the United States Supreme Court"). Theref ore, a state court criminal judgment is "final" (for purpo ses of collateral attack) at the conclusion of review in t he United States Supreme Court or when the time for seeking certiorari review expires. Accord Ross v. Artuz , 1 50 F.3d 97,

1898 (2d Cir. 1998) ("Ross's conviction becamefinal [ under

S 2244(d)(1)(A)] when his time to seek direct revie w in the United States Supreme Court by writ of certiorari expired[.]").

The omission of S 2244's clarifying language from t he

mention of "final" in S 2255 is not sufficient to c ause us to conclude that Congress intended a different concept of finality for state and federal defendants. As discu ssed above, that concept includes the period in which a defendant can seek discretionary review. Prior to t he expiration of the time for certiorari review, a con viction is simply not "final" under either provision.

We also see no principled reason to treat state and federal habeas petitioners differently. Congress ha s used the term "final" to describe the type of judgment t hat will trigger the limitations period for both classes of petitioners. Section 2244(d)(1) and 2255's limitations periods w ere enacted as part of AEDPA, and both provisions are f ound in Chapter 153 of Title 28. Therefore, Congress's more lucid definition of "final" in S 2244(d)(1)(A) suggests t hat a judgment likewise becomes "final" within the meanin g of S 2255 only when direct review in the United States Supreme Court has concluded. See Sorenson v. Secret ary of Treasury, 475 U.S. 851, 860 (1986) ("The normal rul e 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 omitt ed); see also Baskin v. United States, 998 F. Supp. 188, 199 (D. Conn. 1998) (relying on the more descriptive langua ge of S 2244 to hold that S 2255's limitations period beg ins to run at "the conclusion of direct review or the expirati on of the time for seeking such review").7

___________________________________________________ ______________

7. Of course, canons of construction are not absolu te and must yield when other indicia of congressional intent suggest a different result. We find that AEDPA' language does not suggest a differ ent result. We are, of course, aware that the difference between the wordi ng 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. S ee generally Lindh v. Murphy, 521 U.S. 320, ___, 117 S. Ct. 2059, 2068 (1 997) ("[I]n a world of silk purses and pigs' ears, [AEDPA] is not a sil k purse of the art of statutory drafting.").

19The government argues that "[b]ecause the requireme nt

of exhaustion and the interest of comity play no pa rt in actions by federal prisoners, the language of S 224 4(d)(1) accommodating those concerns has no bearing or effe ct on the differently-worded [sic] S 2255." Appellee's Br . at 27. We disagree. While the exhaustion requirement generall y is satisfied if the defendant's claims are fairly pres ented through to the state's highest court for review, se e, e.g., Burkett v. Love, 89 F.3d 135, 138 (3d Cir. 1996), t he meaning of "exhaustion" does not further our analys is of the proper interpretation of S 2244(d)(1)(A). Secti on 2244(d)(1)(A) does not provide that the one-year pe riod begins to run on the date the petitioner's claims a re "exhausted"-- a term that Congress could easily hav e employed in the statute if that is what it meant. R ather, S 2244(d)(1)(A) provides that the limitation period begins to run at the "conclusion of direct review or the expi ration of the time for seeking such review." That includes th e right to review in the United States Supreme Court, and it i s settled that the "conclusion of direct review" is not synon ymous with "exhaustion of available state court remedies. " See Wade v. Mayo, 334 U.S. 672, 681 (1948) (holding tha t, although certiorari review is part of the direct re view process, an application for certiorari is not requi red 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 insignific ant insofar as a definition of "final" is concerned, we do find the distinction in the context in which Congress used"f inal" there as opposed to Chapter 154 of Title 28 to be significant. As mentioned above, we believe the ana lysis of

both the court in Gendron and the district court he re is undermined by the failure of those courts to consid er the wording of Chapter 154 when interpreting S 2255.

Congress enacted a new Chapter 154 of Title 28 as p art of AEDPA. That Chapter sets forth the procedures th at govern S 2254 petitions filed by state prisoners se rving capital sentences in states that meet certain condi tions set

20forth 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 fil ed in the appropriate district court not later than 18 0 days after

final State court affirmance of the convicti on and sentence on direct review or the expiration of the time for seeking such review.

(b) The time requirements established by su bsection

(a) shall be tolled--

(1) from the date that a petition for certi orari is filed in the Supreme Court until the date of final disposition of the petition if a State priso nerfiles the petition to secure review by the Supreme Cou rt of the affirmance of a capital sentence on dire ct 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 run s 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 in cludes the right to seek review in the Supreme Court), pro vides strong support for the conclusion that the limitati ons periods under S 2244 and S2255 - which lack an anal ogous modifier - run from the conclusion of Supreme Court review. In SS 2244 and 2255, Congress spoke in term s of "finality", not in terms of "affirmance."

Moreover, under S 2263, the limitations period begi ns to run before the defendant files a certiorari petitio n, as the statute expressly provides that the limitations per iod is "tolled" on the date a certiorari petition isfiled. Sections 2244(d)(1)(A) and 2255, in contrast, do not express ly call for a tolling for certiorari proceedings. Tolling i s unnecessary if the limitations period begins to run only after certiorari review has been completed. We beli eve that Congress did not mention tolling in S 2244 orS 2255 because Congress assumed tolling was unnecessary si nce it did not intend the limitations period to begin unti l after the

21time for certiorari review expired. Had Congress in tended

the limitations period to begin upon the conclusion of an appeal as of right, it would have provided for toll ing to allow for a petition for certiorari to be acted upon, jus t as it did in Chapter 154.

V.

To summarize, we hold that a "judgment of convictio n 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, o r (2) the date on which the defendant's time for filing a timely p etition for certiorari review expires. If a defendant does not pursue a timely direct appeal to the court of appeals, his o r her conviction and sentence become final, and the statu te 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. Accor dingly, his judgment of conviction became final within the mean ing of S 2255 when his time for filing a petition for a wr it of certiorari expired. Thus, the one-year period of li mitation began to run 90 days from February 13, 1996, which was Monday, May 13, 1996. Since Kapral's motion wasfile d on April 29, 1997, it was timely.

VI.

For the foregoing reasons, we will vacate the distr ict court's order dismissing Kapral's S 2255 motion, an d we will remand this matter for further proceedings con sistent with this opinion.

22ALITO, Circuit Judge, concurring:

I join the opinion of the court, but I write separa tely to elaborate on my reasons for disagreeing with the Se venth Circuit's decision in Gendron v. United States , 15 4 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 late st 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 Gendr on 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 becomesfin al" is susceptible to two entirely reasonable interpretati ons. It may mean the date on which occurs the last step in the process of direct appeal. See The Random House Dict ionary 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 ju dgment of conviction becomes final" may reasonably be inte rpreted to mean the date on which the conviction is no long er subject to reversal by means of the process of dire ct appeal. See id. (defining "final" to mean, among other thin gs, "precluding further controversy on the questions pa ssed upon").

These two interpretations produce the same results in those cases in which the defendant exhausts the pro cess of direct review, i.e., appeals to the court of appeal s 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 C ourt denies certiorari or, if certiorari is granted, whe n the Supreme Court hands down its decision on the merits of the case. These two interpretations, however, produ ce different results in those cases, such as this case and Gendron, in which the defendant does not exhaust th e direct-review process. In cases like this one and G endron, the last step in the process of direct appeal occur s when

23the 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 S upreme Court Rule 13.1. Thus, in those cases in which a de fendant appeals to the court of appeals but does not seek c ertiorari, the first interpretation will generally give the de fendant one year from the entry of the court of appeals' judgme nt to file a motion under S 2255, whereas the second interpret ation will generally give the defendant 15 months from th e entry of the court of appeals' judgment to file that moti on.

As I have already said, I believe that the text ofS 2255 may reasonably be interpreted in either of these wa ys. Indeed if I were compelled to choose one interpreta tion based solely on the text of that provision, I would find the choice exceedingly hard. Moreover, I think that a reasonable legislator could easily choose either interpretation. As noted, this choice matters in on ly those

cases in which the defendant does not exhaust all o f the steps of the direct review process, i.e., chiefly i n those cases in which a defendant does not petition for certiora ri. In such cases, a legislator could reasonably think tha t the one-year limitation period should begin to run upon the entry of the court of appeals' judgment, because al l defendants, whether or not they petition for certio rari, 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 neverthele ss spend some of the time prior to the certiorari deadline c onsidering that option, a legislator could reasonably think th at such defendants should have a full year from that deadli ne to devote to the preparation of a S 2255 motion. Both of these policy choices are reasonable, and viewed prospecti vely the difference between them is hardly of much significa nce.

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), wh ich sets a one-year period of limitation for the filing of a federal habeas petition by a state prisoner. This provision , like the

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

of the Antiterrorism and Effective Death Penalty Ac t 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 conclusio n of direct review or the expiration of the time for see king such review." 28 U.S.C. S 2244 (d)(1). Accordingly, we m ust

decide what to make of the fact that S 2255 refers to "the date on which the judgment of conviction becomesfin al," whereas S 2241(d)(1) refers to "the date on which t he judgment became final by the conclusion of direct r eview 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. Unit ed States, 464 U.S. 16, 23 (1983), viz., that "[w]here Congres s includes particular language in one section of a st atute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purpo sely in the disparate inclusion or exclusion."1 Noting tha t Congress included the phrase "by the conclusion of direct re view or the expiration of the time for seeking such review" in S 2244(d)(1) but omitted that phrase fromS 2255, th e Gendron court concluded that the concept of the dat e 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 jud gment becomes final upon the conclusion of direct review.

I would not quarrel with the canon set out in Russe llo even if it were my prerogative to do so, but, I do not agree

with the Seventh Circuit's use of the canon in Gend ron. It is important to recognize that this canon does not purport to lay down an absolute rule and that, like every o ther 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 w ay in

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1. The Gendron court cited Hohn v. United States, 1 18 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.

25which the canon was employed in Russello illustrate s how

it may properly be used.

Russello concerned the interpretation of a provisio n of the Racketeer Influenced and Corrupt Organizations"(RIC O)" statute, 18 U.S.C. S 1963(a)(1), which, at that tim e, 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 acti vities prohibited by the RICO statute. The defendant in Ru ssello 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 argume nt, the Supreme Court began with the ordinary meaning of th e term "interest" and observed, after quoting several dictionary definitions, that it was "apparent that the term `interest' comprehends all forms of real and person al property, including profits and proceeds." 464 U.S. at 21. Then, as one of several reasons for rejecting the d efendant's artificially narrow interpretation of the term"inte rest," the Court invoked the canon upon which the Gendron cou rt relied. Noting that 18 U.S.C. S 1963(a)(1) spoke "b roadly of `any interest . . . acquired,' " while the very nex t subsection, 18 U.S.C. S 1963(a)(2), "reache[d] only `any intere st' in . . . any enterprise which [the defendant] had establishe d[,] operated, controlled, conducted, or participated in the conduct of, in violation of section 1962,' " the Co urt observed that "[w]here Congress includes particular language in one section of a statute but omits it i n another section of the same Act, it is generally presumed t hat Congress acts intentionally and purposely in the di sparate inclusion or exclusion.' " 464 U.S. at 23 (citation omitted).

The Court added:

We refrain from concluding here that the dif fering language in the two subsections has the same meaning in each. We would not presume to ascribe thi s difference to a simple mistake in draftsmans hip.

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 interpre ted

26more narrowly than that plain meaning, another prov ision

of the same statute used different language to conv ey that narrower meaning, and the Court therefore presumed that the provision at issue meant what its language plai nly stated and did not have the artificially narrow mea ning explicitly set out in the other, more narrowly craf ted statutory section.

The situation in the present case is quite differen t in several important ways. Here, the relevant language in S 2255, unlike the statutory language at issue in R ussello, does not have a single, obvious meaning. Instead, a s I have said, that language may be interpreted in two entir ely reasonable ways. Moreover, both of these interpreta tions -- 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 l anguage, viz., the part that says that a judgment of convict ion 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 ca reful draftsmanship. See 464 U.S. at 23 ("We would not pr esume to ascribe this difference to a simple mistake in draftsmanship.") But the Gendron court's interpreta tion produces a result that is inconsistent with that hy pothesis. According to the Gendron court, the hypothetical ca reful draftsman responsible for crafting S 2255 used the phrase "the date on which the judgment of conviction becom es final" to mean the date on which direct review conc ludes, even though a careful draftsman would have realized that this phrase is susceptible to another, entirely rea sonable interpretation. Moreover, according to the Gendron court, this hypothetical careful draftsman took this appro ach 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 224 4(d)(1)

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

Rather, a careful draftsman would have realized tha t, 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 explanatio n in

S 2255.

For these reasons, it seems unlikely that the dispa rate 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 intro duced 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 th e preceding decade, Section 508 of S.3 imposed a limi tation period for the filing of S 2255 motions and provide d for this period to run from the latest of four dates, includ ing "the date on which the judgment of conviction becomesfin al. See, e.g., S.238, "Reform of Federal Intervention i n State Proceedings Act of 1985," 99th Cong. S 6 (1985). Th is 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 for filing a federal habeas petition, but this proposed amendmen t-- again following the pattern of prior unsuccessful h abeas reform bills2 -- differed from the analogous langua ge 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 fil i ng an application created by State action in viola tion of the

Constitution or laws of the United States is removed, where the applicant was prevented from filin g by such State action;

"(3) the date on which the Federal constitut ion al right asserted was initially recognized by the Sup reme Court,

___________________________________________________ ______________

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

28where 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 di scovered 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 Corp us Reform Act of 1995," which took a different approac h 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 th is period to begin to run from "the date on which State remed ies are exhausted," S.623 provided (as S 2244(d)(1) now doe s) for this period begin to run from "the date on which th e judgment became final by the conclusion of direct r eview or the expiration of the time for seeking such review. " S.623, 104th Cong. S 2 (1995). At the same time, S.623, li ke current S 2244(d)(2), provided for the one-year per iod to be tolled during the pendency of a properly filed stat e 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 S pecter said that it was "necessary to end the abuse in whi ch petitioners and their attorneys" then engaged in ca pital cases, viz., waiting until a death warrant was sign ed before filing a federal habeas petition. 141 Cong. Rec. S4 592 (daily ed. Mar. 24, 1995). Senator Specter also complained about "the endless delays" caused by the exhaustion requi rement. Id. Based on these remarks, it is reasonable to inf er that the reason for the new approach taken in S.623 was to force state prisoners, upon the completion of direc t 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 da te on which the judgment became final by the conclusion o f direct review or the expiration of the time for see king such review" seems to have been employed to make it clea r that the approach taken in S.3 and prior bills was being changed. Unfortunately, S.623 did not modify the la nguage

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

period for filing S 2255 motions.

On April 19, 1995, the federal building in Oklahoma City was bombed, and on April 27, Senator Dole introduce d S.735, the "Comprehensive Terrorism Protection Act of 1995." This bill incorporated the habeas reform pro visions of S.623. See 141 Cong. Rec. S7597 (daily ed. May 2 6, 1995) (remarks of Sen. Hatch); id. at S7585 (remark s of Sen. Specter); 141 Cong. Rec. S7803 (daily ed. June 7, 1995) (remarks of Sen. Specter); 142 Cong. Rec. S34 72 (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 ref erence to "the date on which the judgment of conviction becom es final" and S 2244(d)(1)'s reference to"the date on which the judgment became final by the conclusion of direct r eview or the expiration of the time for seeking such review" mean the same thing. I reach this conclusion for three c hief reasons: first, the statutory text strongly suggest s that the difference in language did not result from a carefu l drafting choice; second, the legislative history suggests th at this difference in language is instead a product of the vagaries of the legislative process; and third, while I thin k that a legislator could reasonably choose to have the one- year limitation period begin either when direct review e nds or when the opportunity for direct review expires, I t hink it would be odd for a legislator to take one approach in cases involving federal habeas petitions filed by state p risoners and the other in cases involving S 2255 motions fil ed by federal prisoners. Consequently, I believe that a"j udgment of conviction becomes final," within the meaning of S 2255

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3. No house or Senate Report was submitted, and the Conference Report contained only one brief reference to this provisio n. 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 applic ation for a habeas writ
. . . .").

30on 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