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U.S. v. Gamble

United States Court of Appeals, Fifth Circuit
Apr 18, 2000
208 F.3d 536 (5th Cir. 2000)

Summary

holding that without a petition for certiorari, conviction becomes final when time for seeking certiorari review expires

Summary of this case from Johnson v. U.S.

Opinion

No. 98-50920

April 18, 2000

Joseph H. Gay, Jr., Asst. U.S. Atty., Ellen A. Lockwood, San Antonio, TX, for Plaintiff-Appellee.

Chavor Antwan Gamble, Sandstone, MN, pro se.

Appeal from the United States District Court for the Western District of Texas.

Before JOLLY, JONES, and BENAVIDES, Circuit Judges.


The question in this appeal is whether appellant's habeas petition was timely filed under 28 U.S.C. § 2255, as amended by the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA). Section 2255 bars any petition filed, on behalf of a federal prisoner more than one year after the final judgment of conviction, but it does not define when a judgment becomes final. Following decisions of this Court and other circuits, we hold that the conviction becomes final, and the one-year period begins to run, upon expiration of the time for seeking certiorari in the U.S. Supreme Court, even where, as here, the appellant has not actually filed such a petition.

Gamble's direct appeal to this court of his conviction for crack cocaine possession was dismissed on September 10, 1996, for failure to pay the docketing fee or to seek in forma pauperis status. His pro se § 2255 motion was filed in the district court on December 4, 1997. The district court dismissed the petition, rejecting Gamble's argument that his conviction was not "final" for AEDPA limitations purposes until the time for filing a petition for certiorari expired. Gamble has appealed.

The district court's interpretation of § 2255 finds support in a Seventh Circuit decision. This court, however, recently distanced itself from the reasoning of that circuit, holding that when a federal criminal defendant files a timely certiorari petition on direct appeal, and the Supreme Court denies the petition, the federal judgment of conviction becomes "final" under § 2255 on the date of the Supreme Court's denial. United States v. Thomas, 203 F.3d 350, 354-55 (5th Cir. 2000). Thomas carefully avoids the precise issue in this case — the "finality" date of a conviction when no petition for certiorari has been filed — but its disagreement with Gendron is unmistakable. Thomas also cites approvingly decisions of the Third and Tenth Circuits that "a conviction becomes final when a defendant's options for further direct review are foreclosed," whether or not those options have been pursued. Id. at 352; see, e.g., Kapral v. United States, 166 F.3d 565, 571 (3d Cir. 1999); Rhine v. Boone, 182 F.3d 1153, 1155 (10th Cir. 1999), cert. denied, 120 S.Ct. 808 (2000).

See Gendron v. United States, 154 F.3d 672, 674 (7th Cir. 1998), cert. denied, 119 S.Ct. 1758 (1999).

Fidelity to the reasoning of Thomas and to the developing majority rule compel us to conclude that Gamble's petition was timely. It was filed within a year after the ninety-day period for seeking certiorari review of his conviction as finalized in this court.

The United States contends that Gamble's time limit should have elapsed because he could not seek certiorari from a dismissal for want of prosecution by this court. Alternatively, the government asserts that Gamble's petition fails on the merits. We have no jurisdiction to review the latter argument, Sonnier v. Johnson, 161 F.3d 941, 945-46 (5th Cir. 1998), and we are unpersuaded by the former.

The judgment of dismissal is therefore REVERSED, and the case is REMANDED to the district court for evaluation on the merits.


Summaries of

U.S. v. Gamble

United States Court of Appeals, Fifth Circuit
Apr 18, 2000
208 F.3d 536 (5th Cir. 2000)

holding that without a petition for certiorari, conviction becomes final when time for seeking certiorari review expires

Summary of this case from Johnson v. U.S.

holding that, when a prisoner does not file a petition for certiorari, his judgment of conviction does not become final under § 2255 until the time for filing a certiorari petition expires

Summary of this case from U.S. v. D'Andre Torres

holding that judgment becomes final when applicable period for seeking review of a final conviction has expired

Summary of this case from Sanchez-Beltran v. U.S.

holding that "the conviction becomes final, and the one-year period begins to run, upon expiration of the time for seeking certiorari in the U.S. Supreme Court, even where . . . the appellant has not actually filed such a petition"

Summary of this case from U.S. v. Cruz-Garcia

holding federal conviction becomes final upon expiration of time for seeking certiorari, even when petition not actually filed

Summary of this case from Prado v. Cockrell

holding that defendant's conviction becomes final, and one-year limitations period for filing motions to vacate begins to run, upon expiration of time for seeking certiorari in United States Supreme Court, even when defendant has not actually filed petition for certiorari

Summary of this case from Cross v. Johnson

holding that a defendant's conviction becomes final, and the one-year limitations period for filing motions to vacate begins to run, upon expiration of the time for seeking certiorari in the United States Supreme Court, even when the defendant has not actually filed a petition for certiorari

Summary of this case from Patterson v. Johnson

concluding that where defendant seeks appellate review, conviction becomes final upon the expiration of defendant's time for filing a timely petition for certiorari (ninety days)

Summary of this case from U.S. v. Ransburg

recognizing that a conviction becomes final under § 2255 after the 90-day period allowed for a petitioner to seek review by the United States Supreme Court if he has not pursued such relief

Summary of this case from United States v. Miller

recognizing the development of the majority rule that a conviction becomes final when a defendant's options for further direct review are foreclosed, whether or not those options have been pursued

Summary of this case from Ramos v. United States

noting with approval decisions from the Third and Tenth Circuits finding that a judgment of conviction becomes final when the time for seeking direct review expires

Summary of this case from Douglas v. U.S.
Case details for

U.S. v. Gamble

Case Details

Full title:UNITED STATES OF AMERICA, Plaintiff-Appellee, v. CHAVOR ANTWAN GAMBLE…

Court:United States Court of Appeals, Fifth Circuit

Date published: Apr 18, 2000

Citations

208 F.3d 536 (5th Cir. 2000)

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