F I L E D

United States Court of Appeals

Tenth Circuit

FEB 1 2000

PATRICK FISHER

Clerk

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ROBERT LEE WILLIS,

Defendant-Appellant.

No. 98-3244

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS

(D.C. No. 98-CV-3239-GTV)

Submitted on the briefs:

Robert Lee Willis, pro se.

Jackie N. Williams, United States Attorney, Robert S. Streepy, Assistant

United States Attorney, Kansas City, Kansas, for Plaintiff-Appellee.

Before BRORBY , EBEL , and LUCERO , Circuit Judges.

EBEL , Circuit Judge.
1 After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

-2-

Defendant was convicted of conspiracy to commit bank larceny and assault

while attempting bank larceny. This court affirmed his conviction on appeal,

and the United States Supreme Court denied his petition for writ of certiorari on

June 27, 1997. Defendant filed a motion to vacate, set aside or correct his

sentence pursuant to 28 U.S.C. § 2255 on July 16, 1998. The district court

denied the motion as untimely.

On appeal, defendant argues that his § 2255 motion was timely, and that,

even if the motion was untimely, he is entitled to equitable tolling of the

limitations period. We granted a certificate of appealability on the issue of when,

for purposes of 28 U.S.C. § 2255(1), a judgment of conviction becomes final. 

This is a question of statutory interpretation that we review de novo. See United

States v. Shuler , 181 F.3d 1188, 1189 (10th Cir. 1999). We affirm the denial of

defendant’s § 2255 motion as untimely. 1

The relevant statute establishes a one-year limitation period for a federal

prisoner to file a motion to vacate, set aside or correct his sentence. 28 U.S.C.

§ 2255. The one-year limitation period began to run on the date defendant’s

judgment of conviction became final. Id. In United States v. Burch , No. 98-3301,
-3-

slip op. at 3-4, 11 (10th Cir. Feb. 1, 2000), an opinion being issued

contemporaneously with this case, we hold that, where a defendant does not file

a petition for writ of certiorari with the United States Supreme Court after a direct

appeal, the judgment of conviction is final when the time for filing a certiorari

petition expires. In this case, defendant argues that his judgment of conviction

was not final until the time expired during which he could have filed a petition

for rehearing from the Supreme Court’s denial of certiorari.

We need not grapple with whether this proposition is a logical extension

of our holding in Burch , because defendant’s argument is foreclosed by Supreme

Court Rule 16.3. That rule, entitled “Disposition of a Petition for a Writ of

Certiorari,” provides that

[w]henever 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). Based on this rule and consistent with our

holding in Burch , we hold that, absent an actual suspension of an order denying

certiorari by the Court or a Justice, a judgment of conviction is final for purposes

of the one-year limitation period in § 2255 when the United States Supreme Court

denies a petition for writ of certiorari after a direct appeal, regardless of whether
2 Even though our holding here concerns only the one-year limitation period

contained in § 2255, we note that we see no reason why the reasoning behind the

holding would not be equally applicable to the similar limitation period in

§ 2244(d)(1). See Burch , slip op. at 9 (stating that there is no indication that

Congress intended to treat state and federal prisoners differently for purposes of

determining when a judgment of conviction becomes final under the one-year

limitation periods in §§ 2244(d)(1)(A) and 2255(1)).

-4-

a petition for rehearing from the denial of certiorari is filed. 2 After the Supreme

Court has denied a petition for writ of certiorari, neither the filing of a petition

for rehearing from the denial of certiorari, nor the expiration of the time in which

such a petition could be filed delays the commencement of the one-year limitation

period.

Our reading of Rule 16.3 is supported by comparing Rule 16.3 with

Rule 45. Rule 45 concerns issuance of mandates in cases on review by the

Supreme Court (as opposed to cases before the Court on petitions for writ of

certiorari). In cases on review from a state court, the mandate issues twenty-five

days after entry of judgment, and a petition for rehearing stays the mandate until

disposition of the rehearing petition. See Sup. Ct. R. 45.2. In cases on review

from a federal court, no mandate issues, but a copy of the opinion or judgment

is sent to the lower court twenty-five days after the entry of judgment, and the

“sending down of the judgment” is stayed pending disposition of a timely

rehearing petition. See id. at 45.3; ROBERT L. STERN ET AL., SUPREME

COURT PRACTICE § 15.8 (7th ed. 1993) at 628-29. The fact that the rules
-5-

specifically provide for a stay of the effectiveness of the judgment pending

rehearing in cases before the Court on review, and, on the other hand, specifically

provide that a rehearing petition does not suspend the effectiveness of an order

denying certiorari supports reading Rule 16.3 as dictating that the judgment of

conviction is final upon denial of certiorari.

We found no case law interpreting Rule 16.3, but a Supreme Court

practitioner’s guide is in accord with our interpretation. See ROBERT L. STERN

ET AL., SUPREME COURT PRACTICE § 6.43. That publication instructs that

a denial of certiorari is legally effective when the order is entered, authorizing

lower courts to take any action they see fit. See id. at 382. It also points out that

if a party wishes to forestall any adverse or prejudicial action by a lower court

pending the filing and disposition of a rehearing petition, the party must apply to

the Court or a Justice for an order suspending the effectiveness of the order

denying certiorari, as provided by Rule 16.3. See id. at 382-83.

In sum, we hold that, for purposes of the one-year limitation in 28 U.S.C.

§ 2255(1), defendant’s judgment of conviction was final when the United States

Supreme Court denied his petition for writ of certiorari, notwithstanding the fact

that he could have filed a petition for rehearing of the order denying his petition

for writ of certiorari within twenty-five days after the denial of certiorari. 
3 We agree with the district court that this case does not present

extraordinary circumstances such that defendant should receive the benefit of

equitable tolling, see Miller v. Marr , 141 F.3d 976, 978 (10th Cir.), cert. denied ,

119 S. Ct. 210 (1998), and we deny a certificate of appealability on that issue.

-6-

Consequently, defendant’s § 2255 motion was untimely. AFFIRMED. 3 The

mandate shall issue forthwith.