# U nitedStates C ou rt o f App eal s For th e Firs t C ircuit

No. 05-2350 IN RE: WILLIAM SMITH

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Patti B. Saris, U.S. District Judge]

Before Lynch, Lipez and Howard, Circuit Judges.

William Smith, Motion for Certificate of Appealability pro se.

January 18, 2006-2- Per Curiam . W i lliam Smith, who is serving a federalcourt se n t e n c e f o r b e i n g a f e l o n i n p o s s e s s i o n o f a f i r e a r mand ammunition in v iolation of 18 U.S.C. § 922(g)(1), seeks a certificate of appealability of the district court's dismissal of his habeas corpus petition as untimely. The sole issue he seeks to raise on appeal is whether the district court erred in concluding tha t t h e o n e - y e a r s t a t u t e o f l i m i t a t i o n s f o r f i l i n ga h a b e as petition under 28 U.S . C . § 2 2 5 5 started to run when the Supreme Court denied his petition for a writ of certiorari from this court's affirmance of his conviction and sentence on direct appeal. Smith argues that the limitations period did not begin to run until the Supreme Court denied his petition for rehearing of the denial of certiorari and that his section 2255 petition, which was filed within one year after the denial of the petition for rehearing, was therefore timely.

To appeal from a final order in a section 2255 proceeding, the petitioner must obtain a cer t i f i cate of appealability. 28 U.S.C. § 2253(c)(1)(B). To obtain such a certificate where, as here, the district court d i s missed the section 2255 petition on procedural grounds witho u t reaching the merits, the petitioner must show both that "the soundness of the procedural ruling is debatable, and . . . [that] the [underlying] constitutional claim is also colorable." Mateo v. United States, 310 F.3d 39, 40 (2002) (citing Slack v. McD a n i e l , 5 2 9 U.S. 473,Where no petition for certiorari is filed, section 2255's 1 one-year limitation period starts to run when the time for seeking certiorari expires. Clay v. United States, 537 U.S. 522, 532 (2003). -3- 4 8 4

- 8 5 (2000)). Here, petitioner has made no effort to address the merits of his constitutional claims, and the procedural issue is relatively easy to resolve, so we will turn to it first, as the Supreme Court has encouraged lower courts to do. Slack, 529 U.S. at 485. A one-year statute of limitat i o n s applies to petitions under section 2255. 28 U.S.C. § 2255. That period begins to run from the latest of several e v e n ts, only one of which is relevant here--"the date on which the judgment of conviction becomes final." 28 U.S.C. § 2255(1). Although the statute itself does not define when a conviction b e c omes final for this purpose, every circuit that has addressed the issue has co n c luded that a conviction becomes f i n a l--and the one-year period therefore starts to run-- when a petition for certiorari is d e n i ed, Campa-Fabela v. United 1 States, 339 F.3d 993, 994 (8th Cir. 2003) (per curiam); United States v. Hicks, 283 F.3d 380, 387 (D.C. Cir. 2002); United States

v. Segers, 271 F.3d 181, 186 (4th Cir. 2001); Horton v. U n ited States, 244 F.3d 546, 551 (7th Cir. 2001); Washington v. United States, 2 4 3 F . 3d 1299, 1300-01 (11th Cir. 2001) (per curiam); United States v. Thomas, 203 F.3d 350, 356 (5th Cir. 2000); United States v. Willis, 202 F.3d 1279, 1280 (10th Cir. 2000); Kapral v.-4-

United States, 166 F.3d 565, 570 (3rd Cir. 1999), rather than when a petition for rehearing of the denial of certiorari is denied, Giesberg v. Cockrell, 288 F.3d 268, 270-71 (5th Cir. 2002) (per curiam); Segers, 271 F.3d at 184-86. See also Clay, 537 U.S. at 539 n.4 (noting uniformity of the circuits on this issue).

In reaching that co nclusion, our sister circuits have relied on Supreme Court Rule 16.3, which provides that, absent a court order to the contrary, an order denying a petition for certiorari "will not be suspended pending disposition of a petition for rehearing." Based on that rule, they have persuasively reasoned that a conviction becomes final for purposes of triggering the one-year limitations period of section 2255 when certiorari is denied, regardless of whether a petition for rehearing is filed or when such a petition is denied. See Campa-Fabela, 339 F.3d at 994; Segers, 271 F.3d at 184-85; Giesberg, 288 F.3d at 271; Horton, 244 F.3d at 551; Willis, 202 F. 3 d a t 1 2 8 0 . We agree and adopt the rule. Petitioner argues that Supreme Court Rule 4 5, dealing with issuance of mandates by the S u preme Court, dictates the opposite conclusion. In particular, he r e l i e s on Rule 45.2's provision that "[t]he filing of a petition for rehearing stays the mandate until disposition of the petition, unless the court orders otherwise." That rule is inapt. As recognized b y the Fifth Circuit, Rule 45 "refer[s] to the mandate and judgment that issues-5-

after a Supreme Court d ecision on the merits. The denial of certiorari review is governed[, instead,] by Supreme Court Rule 16.3." Thomas, 203 F.3d at 355.

Because the above reasoning and result are not reasonably debatable, we deny the application for a certificate of appealability on the procedural issue without assessing the merits of petitioner's underlying constitutional claims.

The application for a c ertificate of appealability is denied, and the appeal is terminated.