FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

November 13, 2007

THOMAS K. KAHN

CLERK

[ PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 07-12130

Non-Argument Calendar

________________________

D. C. Docket Nos. 

06-00284-CV-DHB & 01-00028-CR-DHB

CARL M. DRURY, JR., 

Petitioner-Appellant, 

versus 

UNITED STATES OF AMERICA, 

Respondent-Appellee. 

________________________

Appeal from the United States District Court

for the Southern District of Georgia

_________________________

(November 13, 2007)

Before CARNES, MARCUS and PRYOR, Circuit Judges.

MARCUS, Circuit Judge:

Carl M. Drury, Jr., a federal prisoner proceeding pro se, appeals the

dismissal of his motion to vacate, filed pursuant to 28 U.S.C. § 2255, as barred by
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the one-year statute of limitations of the Antiterrorism and Effective Death Penalty

Act of 1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214 (1996). We granted

a certificate of appealability on the issue of whether the statute of limitations began

to run when the Supreme Court denied Drury’s petition for certiorari or when it

denied his petition for rehearing of the denial of certiorari. 

The Supreme Court denied Drury’s petition for certiorari on October 3,

2005. Drury v. United States, 546 U.S. 813 (2005). If the statute of limitations

began then, Drury had until October 3, 2006 to file his § 2255 motion. The

Supreme Court denied his petition for rehearing on November 28, 2005. Drury v.

United States, 546 U.S. 1055 (2005). Drury, through counsel, filed this § 2255

motion to vacate on November 27, 2006, which was more than one year after the

denial of the petition for certiorari, but less than one year after the denial of his

petition for rehearing. 

We review de novo the district court’s determination that a § 2255 motion to

vacate is time-barred. Jones v. United States, 304 F.3d 1035, 1037 (11th Cir.

2002). The AEDPA imposes a one-year statute of limitations for filing a § 2255

motion to vacate, which begins to run following one of four events, the relevant

trigger in this case being “the date on which the judgment of conviction becomes

final.” 28 U.S.C. § 2255. The Supreme Court has held that “[f]inality attaches
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when this Court affirms a conviction on the merits on direct review or denies a

petition for a writ of certiorari, or when the time for filing a certiorari petition

expires.” Clay v. United States, 537 U.S. 522, 527 (2003). Likewise, we have

held that a conviction becomes final the day the Supreme Court denies a petition

for certiorari or issues a decision on the merits. Washington v. United States, 243

F.3d 1299, 1300-01 (11th Cir. 2001). 

While neither this Court nor the Supreme Court has addressed the impact of

the filing of a petition for rehearing on the one-year statute of limitations under 28

U.S.C. § 2255, Supreme Court Rule 16.3, entitled “Disposition of a Petition for a

Writ of Certiorari,” provides: 

Whenever the Court denies a petition for a writ of certiorari, the Clerk

will prepare, sign, and enter an order to that effect and will notify

forthwith counsel of record and the court whose judgment was sought

to be reviewed. The order of denial will not be suspended pending

disposition of a petition for rehearing except by order of the Court or a

Justice.

Sup. Ct. R. 16.3 (emphasis added). Thus, by its unequivocal language, Rule 16.3

states that a petition for certiorari review is resolved when the Court denies review,

unless the Supreme Court or a Justice intervenes, neither of which occurred at any

point in the process in Drury’s case. 

This conclusion is consistent with the decisions of six of our sister courts to

have considered the issue. See In re Smith, 436 F.3d 9, 10 (1st Cir.) (applying
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Sup. Ct. R. 16.3 and holding 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 petition is

denied “), cert. denied, 127 S. Ct. 284 (2006); Robinson v. United States, 416 F.3d

645, 650 (7th Cir. 2005) (holding that “petition for rehearing the denial of

[petitioner’s] certiorari petition had no effect on the finality of his conviction”);

Campa-Fabela v. Cockrell, 339 F.3d 993, 993 (8th Cir. 2003) (holding that

conviction was final at the denial of petition for writ of certiorari, rather than denial

of petition for rehearing); Giesberg v. Cockrell, 288 F.3d 268, 270 (5th Cir. 2002)

(same); United States v. Segers, 271 F.3d 181, 184 (4th Cir. 2001) (holding that “in

the absence of an order of the Court or a Justice thereof, a petition for rehearing of

the denial of certiorari has no effect”); United States v. Willis, 202 F.3d 1279,

1280-81 (10th Cir. 2000) (holding that, based on Sup. Ct. R. 16.3 and absent

suspension by an order of the Supreme Court of a Justice, a judgment of conviction

is final at the denial of certiorari, “regardless of whether a petition for rehearing

from the denial of certiorari is filed.”).

We now join our sister circuits and, consistent with the Supreme Court’s

decision in Clay, hold that finality attaches when the Supreme Court denies a

habeas petitioner’s petition for certiorari review. Drury’s filing of a motion for
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reconsideration of the Supreme Court’s decision did not affect the disposition of

his case in the Supreme Court, and we see no reason why such a motion would toll

the time for filing a § 2255 motion. Upon the denial of his certiorari petition,

Drury’s conviction was final for purposes of the AEDPA’s limitations period.

Accordingly, we discern no error in the district court’s dismissal of Drury’s § 2255

motion as time-barred. 

AFFIRMED.