United States Court of Appeals

For the First Circuit

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
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Per Curiam. William Smith, who is serving a federalcourt sentence for being a felon in possession of a firearm and

ammunition in violation 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

that the one-year statute of limitations for filing a habeas

petition under 28 U.S.C. § 2255 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 certificate of

appealability. 28 U.S.C. § 2253(c)(1)(B). To obtain such a

certificate where, as here, the district court dismissed the

section 2255 petition on procedural grounds without 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. McDaniel, 529 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).

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484-85 (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 limitations applies to petitions

under section 2255. 28 U.S.C. § 2255. That period begins to run

from the latest of several events, 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 becomes final for this purpose, every circuit

that has addressed the issue has concluded that a conviction

becomes final--and the one-year period therefore starts to run--

when a petition for certiorari is denied, 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. United

States, 244 F.3d 546, 551 (7th Cir. 2001); Washington v. United

States, 243 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.
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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 conclusion, 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.3d at 1280. We agree and adopt the

rule. 

Petitioner argues that Supreme Court Rule 45, dealing

with issuance of mandates by the Supreme Court, dictates the

opposite conclusion. In particular, he relies 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 by the Fifth

Circuit, Rule 45 "refer[s] to the mandate and judgment that issues
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after a Supreme Court decision 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 certificate of appealability is

denied, and the appeal is terminated.