## 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 Pl aintiff-Appellee.

Before BRORBY , EBEL , and LUCERO , Circuit Judges.

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

unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he 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 affirmedhis conviction on appeal, and the United States Supreme Court denied his peti tion 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, 1 998. 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 ap pealability 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 limitat ion period for a federal prisoner to file a motion to vacate, set aside or c orrect 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 op inion being issued contemporaneously with this case, we hold that, whe re a defendant does not file a petition for writ of certiorari with the United S tates Supreme Court after a direct appeal, the judgment of conviction is final when th e 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 h e could have filed a petition for rehearing from the Supreme Court’s denial of ce rtiorari. We need not grapple with whether this proposition i s a logical extension of our holding in Burch , because defendant’s argument is foreclosed by Sup reme 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 o f certiorari, the Clerk will prepare, sign, and enter an order to that effect and will notify forthwith counsel of record and the court wh ose judgment was sought to be reviewed. The order of denial will not be suspended pending disposition of a petition for rehearing exc ept 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 o rder 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 th e United States Supreme Court denies a petition for writ of certiorari after a di rect appeal, regardless of whether2 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 simi lar limitation period in § 2244(d)(1). See Burch , slip op. at 9 (stating that there is no indicatio n that Congress intended to treat state and federal prison ers differently for purposes of determining when a judgment of conviction becomes f inal 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. 2After 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 th e expiration of the time in which such a petition could be filed delays the commencem ent 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 Courton 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 re hearing 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 copyof 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 di sposition 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. Th e fact that the rules-5-

specifically provide for a stay of the effectivenes s 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 di ctating 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 public ation instructs that a denial of certiorari is legally effective when th e 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 preju dicial action by a lower court pending the filing and disposition of a rehearing p etition, 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 f inal when the United States Supreme Court denied his petition for writ of certi orari, notwithstanding the fact that he could have filed a petition for rehearing o f the order denying his petition for writ of certiorari within twenty-five days afte r the denial of certiorari.3 We agree with the district court that this case doe s not present

extraordinary circumstances such that defendant sho uld 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.