Reply Brief — Clay v. United States

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No. 01-1500 |

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In the Supreme Court of the United States

ERICK CORNELL CLAY, PETITIONER —̃ —

UNITED STATES OF AMERICA

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

REPLY BRIEF FOR THE UNITED STATES

THEODORE B. OLSON

Solicitor General

Counsel of Record

De partme nt of Justice

Washinaton. D.C. 20530-0001

(202) 514-2217

TABLE OF CONTENTS

A. The language of Section 2244 does not justify

failing to give “final” as used in Section 2255 its

established meaning in the collateral review

ee 3 2

B. There is no general rule that a judgment of con-

vietion becomes final when the court of appeals

issues its mandate ꝗ—u— — — 8

C. Differences in collateral review of state and federal

convictions do not support different definitions of

finality in Sections 2244 and 2255 .. . 16

TABLE OF AUTHORITIES

Cases:

Andrews v. United States, 373 U.S. 334 (1963) 14

Barefoot v. Estelle, 463 U.S. 880 (1983) .. 15

Bell v. Maryland, 378 U.S. 226 (1964) . * 15

Bousley v. United States, 523 U.S. 614 (1998) .. 17

Burns v. United States, 501 U.S. 129 (1991) 5

Caspari v. Bohlen, 510 U.S. 383 (1994) . 1

Christensen v. Harris County, 529 U.S. 576 (2002) 6. 7

City of Columbus v. Ours Garage & Wrecker Serv.,

I.. 5

Collinsgru v. Palmyra Bd. of Educ., 161 F ad 225

GBB Cle. BBG) cecerccszscsesessssessscesesscesereressnsccensnsesecssescessoessccsssoease 7

Commissioner v. Lundy, 516 U.S. 235 (1996) 4

County Court v. Allen, 442 U.S. 140 (1979) . 18, 19

Custis v. United States, 511 U.S. 485 (1994)

Darr v. Burford, 339 U.S. 200 (1950) . 18

Davis v. United States, 417 U.S. 333 (1974) 16, 17

De Sylva v. Ballentine, 351 U.S. 570 (1956) —

Department of Revenue v. ACF Indus., Inc., 510

U.S. 332 (1994) * 3

Cases—Continued:

Fay v. Noia, 372 U.S. 391 (1968) ......

Francis v. Henderson, 425 U.S. 536 (1976)

Glick v. Ballentine Produce, Inc., 397 F.2d 590

(8th Cir. 1968) ‘ats

Griffith v. Kentucky, 479 U.S. 314 (1987) .

Gustafson v. Alloyd Co., 513 U.S. 561 (1995)

Hedberg v. Pitchess, 362 F. 2d 511 (9th Cir. 1966)

Heflin v. United States, 358 U.S. 415 (1959)

Johnson v. New Jersey, 384 U.S. 719 (1966)

Kaufman v. United States, 394 U.S. 217 (1969) ..

Kendrick v. City of Eureka, 82 Cal. App. 4th 364

(2000)

King v. Cook, 287 F. Supp. 269 (N. D. Miss. 1968)

Lindh v. Murphy, 521 US. 320 (1997)

Linkletter v. Walker, 381 U.S. 618 (1965)

Market St. Ry. v. Railroad Comm'n, 324 U.S. 548

(1945)

Melkonyan v. Sullivan, 501 U.S. 89 (1991)

Midland Asphalt Corp. v. United States, 489 US.

794 (1989)

Mitchell v. United States, 526 U.S. 314 (1999) ..

Owens v. Hewell, 474 S.E.2d 740 (Ga. Ct. App. 1996)

Porter v. Nussle, 534 U.S. 516 (2002)

Raines v. New York, 992 F. Supp. 160 (N. D. N. v.

1998)

Reconstruction Fin. Corp v. Beaver County, 328

U.S. 204 (1946)

Reed v. Farley, 512 U.S. 339 (1994)

Russello v. United States, 464 U.S. 16 (1983) ..

Scofield v. NLRB, 394 U.S. 423 (1969) ....

Sorenson v. Secretary of the Treasury, 475 US.

851 (1986)

Stevens v. Marks, 383 U.S. 234 (1966)

Sullivan v. Stroop, 496 U.S. 478 (1990)

Cases—Continued: Page

Teague v. Lane, 489 U.S. 288 (19889)))))72)9)9 „ 19

Thunder Basin Coal Co. v. Reich, 510 U.S. 200

a 6

United States v. Addonizio, 442 U.S. 178 (1979) ................ 16

United States v. Frady, 45€ 1.8. 152 (19822 17

United States v. Hayman, 342 U.S. 205 (1962777772955 14

United States v. Johnson, 457 U.S. 537 (19827 2

United States v. Male Juvenile, 280 F 3d 1008 (9th

„ 7

United States v. Reyes, 49 F 3d 63 (2d Cir. 1995) .............. 11

United States v. Wells, 519 U.S. 482 (1997) 2

United States v. Wong Kim Bo, 472 F 2d 720 (5th

Cir. 1972) * 4

United States ex rel. Stevens v. McCloskey, 239

F. Supp. 419 (S. D. N. V), aff'd on other grounds,

345 F. 2d 305 (2d Cir. 1965), rev'd, 383 U.S. 234

J ee 18

Statutes, regulations and rules:

Antiterrorism and Effective Death Penalty Act of

1996, Pub. L. No. 104-132, 110 Stat. 1214 2

Equal Access to Justice Act, 28 U.S.C. 2412(d)(2\(G) ....... 9

Securities Act of 1933, 15 U.S.C. 77a et S

r 4

r ... .. 4

Speedy Trial Act of 1974, 18 U.S.C. 3161 et Se.

I 11, 12

r . 11.12

ä 10

28 U.S.C. 1367(d) — 11

28 U.S.C. 2101 ; — 11

28 U.S.C. 2244 - n

r "at ~

EEE 2

EEE i

Para. 6(1) ry

iv

Statutes, regulations and rule—Continued: Page

Rule 1 (advisory committee’s note) 13

Rule 11 (advisory committee s note) 14

Rule 12 (advisory committee’s note) 14, 15-16

28 U.S.C. 2263 — . 8,11

Mo. Ann. Stat. 6537. 1000—Ä 7 12

Fed. R. Crim. P. 33 (1997) .... 11, 12, 13, 14

Sup. Ct. R

a 10, 11

Rule 111 ͤ—ͤů—3——7—7575ðVð*—3——E— 11

8. Rep. No. 226, 98th Cong., Ist Sess. (1883 13

S. 1763, 98th Cong., Ist Sess. (1983) 13

In the Supreme Court of the United States

No. 01-1500

ERICK CORNELL CLAY, PETITIONER

*.

UNITED STATES OF AMERICA

_ ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

REPLY BRIEF FOR THE UNITED STATES

The Court-appointed amicus disputes the government’s

submission that, when a defendant does not petition this

Court for certiorari on direct appeal, his judgment of con-

viction becomes “final,” for purposes of 28 U.S.C. 2255 para.

6(1), when the time for seeking certiorari expires. Amicus

does not, however, dispute the principal proposition on

which that submission is based: the term “final” has a well-

settled meaning under this Court’s cases dealing with collat-

eral relief, and that meaning is identical to the one that the

government, petitioner, and six courts of appeals accord the

term final“ as used in Section 2255, which governs the avail-

ability of collateral relief for federal prisoners.

Under the Court’s collateral review cases, a criminal judg-

ment not reviewed by this Court becomes “final” when “the

time for filing a petition for a writ of certiorari has elapsed or

a timely filed petition has been finally denied.” Caspari v.

Bohlen, 510 U.S. 383, 390 (1994). The Court consistently

9

—

used that definition of finality in a series of cases involving

both state and federal defendants dating back more than 30

years before the enactment of Section 2255 para. 6(1) as part

of the Antiterrorism and Effective Death Penalty Act of

1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214. See,

e.g., Griffith v. Kentucky, 479 U.S. 314, 321 n.6 (1987); United

States v. Johnson, 457 U.S. 537, 542 n.8 (1982); Linkletter v.

Walker, 381 U.S. 618, 622 n.5 (1965). As amicus acknow!l-

edges (Br. 28), the Court presumels] that Congress expects

its statutes to be read in conformity with this Court’s

precedents.” United States v. Wells, 519 U.S. 482, 495

(1997). Because Section 2255, like the Court’s cases defining

finality, applies in the context of collateral review of criminal

convictions, there is a particularly strong reason to presume

that Congress intended “final” to have the same meaning in

Section 2255 para. 6(1) as in those decisions. See Porter v.

Nussle, 534 U.S. 516, 527-528 (2002) (relying on cases from

most closely related context to ascertain meaning of

statutory term). None of the reasons advanced by amicus

justifies failing to accord “final” as used in Section 2255 the

term's well-established meaning in the law of collateral re-

view.

A. The Language Of Section 2244 Does Not Justify

Failing To Give “Final” As Used In Section 2255

Ite Established Meaning In The Collateral Review

Context

Amicus’s primary argument (Br. 8-21) is that “final” as

used in Section 2255 cannot be accorded its established

meaning in the collateral] review context because Congress

failed to inelude in that section certain language that Con-

gress included in 28 U.S.C. 2244, the parallel time limit pro-

vision for state prisoners seeking collateral relief under 28

U.S.C. 2254. Section 2255 provides that the time limit for

filing a collateral attack runs from “the date on which the

judgment of conviction becomes final,” but Section 2244

3

states that the time limit runs from “the date on which the

judgment became final by the conclusion of direct review or

the expiration of the time for seeking such review.” Com-

pare 28 U.S.C. 2255 para. 6(1) with 28 U.S.C. 2244(d)(1)(A).

The language in Section 2244 clarifies that “final” as used in

that section has its established meaning in the collateral

review context. Amicus reasons by negative implication that

“final” cannot have that established meaning in Section 2255

because Congress did not also include the clarifying

language in Section 2255.

1. The inclusion in only Section 2244 of language clarify-

ing the meaning of “final” is not, however, a sufficient reason

to conclude that “final” necessarily means something else in

other sections of the same statute, On the contrary, the

“normal rule of statutory construction” is that “identical

words used in different parts of the same act are intended to

have the same meaning.” Gustafson v. Alloyd Co., 513 U.S.

561, 570 (1995) (quoting Department of Revenue v. ACF

Indus., Inc., 510 U.S. 332, 342 (1994)). Thus, when language

in one part of a statute establishes the meaning of a term

used in that part of the statute, the Court generally pre-

sumes that the same definition applies to the term where it

appears in other parts of the statute. See Sorenson v.

Secretary of the Treasury, 475 U.S. 851, 860 (1986).

Amicus erroneously contends (Br. 13) that the presump-

tion that a word has the same meaning throughout a statute

is inapplicable here because “Congress quite clearly did not

use ‘identical words’ in § 2244 and § 2255.” Congress quite

clearly did use the identical word “final” in both sections.

The presumption that “final” has the same meaning through-

out the AEDPA is not rendered inapplicable because langu-

age clarifying the meaning of “final” is not also repeated each

time “final” is used. If the clarifying language had to be

repeated in order for the presumption to apply, the pre-

4

sumption would serve no purpose, because the statute’s

meaning would already be clear.

Also contrary to amicus’s contention (Br. 13), the pre-

sumption that “final” has the same meaning in Sections 2255

and 2244 is applicable even though the language in Section

2244 that clarifies the meaning of “final” is not written “in a

definitional manner.” This Court has repeatedly relied on

language that clarifies a word’s meaning in one part of a

statute to ascertain the same word’s meaning in another part

of the statute even though the clarifying language is not

framed as a definition. See, e.g., Gustafson, 513 U.S. at 569

(deriving meaning of “prospectus” in Section 12 of the

Securities Act of 1933, 15 U.S.C. 77j, 771, from language in

Section 10 that clarifies its meaning even though Ҥ 10 does

not define what a prospectus is”); see also Commissioner v.

Lundy, 516 U.S. 235, 249-250 (1996) (deriving meaning of

“claim” from context of its use in one provision of Internal

Revenue Code and holding that same meaning applies to

term as used in another Code provision); Sullivan v. Stroop,

496 U.S. 478, 483-484 (1990) (same regarding term “child

support” used in related provisions of Social Security Act).

2. In support of his contention that “final” must have a

different meaning in Section 2255 than in Section 2244,

amicus relies (Br. 10) on the presumption articulated in

Russello v. United States, 464 U.S. 16 (1983), that, “[wJhere

Congress includes particular language in one section of a

statute but omits it in another section of the same Act, it is

generally presumed that Congress acts intentionally and

purposely in the disparate inclusion or exclusion.” /d. at 23

(quoting United States v. Wong Kim Bo, 472 F.2d 720, 722

(5th Cir. 1972)). Application of the Russello presumption

would not, however, support the reading of Section 2255

advanced by amicus. Instead, application of the presumption

would lead to an implausible interpretation of Section 2255

that neither amicus nor any court has endorsed, and, for that

5

reason, the Court should reject-reliance on Russello in this

context.

If Congress’s omission in Section 2255 of the clarifying

language from Section 2244 gave rise to a negative inference,

the logical inference would be that “final” in Section 2255

includes no aspect of the omitted language. Thus, appli-

cation of the Russello presumption to the meaning of finality

under Section 2255 would entail that neither “the conclusion

of direct review” nor the “expiration of the time for seeking

such review” could result in finality, because both those

phrases are omitted from Section 2255. Under that inter-

pretation of Section 2255, a federal prisoner’s judgment of

conviction would become final without regard to direct

review e., immediately upon the district court’s entry of

judgment. Neither amicus nor any court has espoused that

interpretation of Section 2255, under which many federal

defendants would have to seek post-conviction relief long

before he conclusion of their direct appeals.

This Court has not hesitated to decline to draw an

“inference * * * from congressional silence” where it would

lead to such absurd results, Burns v. United States, 501 U.S.

129, 136-137 (1991), and the Court should decline to do so

here. See City of Columbus v. Ours Garage & Wrecker

Serv., Inc., 122 S. Ct. 2226, 2234 (2002) (rejecting application

of the Russello principle in part because it would lead to the

implausible conclusion that States could enact, but localities

could not enforce, state safety rules).

Amicus seeks to avoid taking the negative inference on

which he relies to its logical—and absurd—conclusion by

contending (Br. 18-20) that, under Russcllo, the use of dif-

ferent language in two sections of a statute implies only that

the two sections mean different things, not that they cannot

overlap in any way. But the only reason that the sections

are presumed in Russello to mean different things is that

one section includes particular language that is omitted in

6

the other. The nature and degree of the difference in mean-

ing therefore logically depends on the nature and degree of

the difference in language. Amicus’s suggestion (Br. 18-19)

that the Court apply the presumption to one part of the

omitted language—the phrase “the expiration of the time for

seeking [direct] review’—but not the other—the phrase

“the conclusion of direct review”—makes no sense. If the

Russello presumption applies to any of the language in-

cluded in Section 2244 and omitted from Section 2255, the

presumption applies to all of that language.

Indeed, amicus agrees (Br. 20) that a court must give full

effect to any negative inference the court draws from a

statutory omission when the court applies the interpretive

canon of expressio unius est exclusio alterius. Amicus con-

tends, however, that the Russello principle is distinct from

that canon and (for some unexplained reason) subject to a

different rule. Amicus provides no support, however, for his

contention that Russello is distinct from the expressio unius

canon; and, in fact, Russello is simply an application of that

broader principle.

In Custis v. United States, 511 U.S. 485 (1994), the dissent

criticized the majority’s reliance on Russello (id. at 492) as

an unfounded application of the expressio unius principle.

See 511 U.S. at 501 (Souter, J., dissenting, joined by Black-

mun and Stevens, JJ.). In other.cases, the Court or certain

Justices have likewise described Russello-type analysis as

application of the expressio unius canon. For example, in

Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 209 n.11

(1994), the Court described as based on expressio unius an

argument that the inclusion of restrictions on judicial review

in certain provisions of the statute implied the absence of a

restriction in the provision at issue. Similarly, in Christen-

sen v. Harris County, 529 U.S. 576, 582-583 & n.4 (2000), the

Court described as an expressio unius argument the govern-

ment’s contention—which was supported by a citation to

7

Russello, see Br. for the U.S. as Amicus Curiae 16, Christen-

sen, supra (No. 98-1167)—that the statute’s specification of

one instance in which an employer could control an em-

ployee’s use of compensatory time created a negative impli-

cation that an employer could not otherwise control em-

ployees’ use of compensatory time. Finally, in Lindh v.

Murphy, 521 U.S. 320 (1997)—in which, as amicus himself

notes (Br. 17), the Court used Russello-type reasoning—the

dissent criticized the majority for relying on “one canon of

statutory interpretation, expressio unius est exclusio al-

terius, to the exclusion of all others.” See 521 U.S. at 337

(Rehnquist, C.J., dissenting, joined by Scalia, Kennedy, and

Thomas, JJ.).'

3. Amicus also mistakenly argues (Br. 11) that the

government’s interpretation of the word “final” in Section

2255 must be rejected because it renders superfluous the

language in Section 2244 that clarifies that a judgment of

conviction becomes final at the “conclusion of direct review

or the expiration of the time for seeking such review.” 28

U.S.C. 2244(d)(1)(A). That language is not superfluous

under the government’s interpretation. At a minimum, the

language serves to confirm the presumption that, in Section

2244 and elsewhere in the AEDPA, the finality of a judg-

ment of conviction is determined in accordance with the

standard established in this Court’s collateral review cases.

Congress may have included the language for other

reasons as well. As petitioner suggests (Pet. 22), Congress

may have been concerned that courts would otherwise con-

clude that the date on which a judgment of conviction be-

comes final under Section 2244 depends on the definition of

finality used by the State of conviction. Although amicus is

\

Courts of appeals have likewise recognized that the Russello pre-

sumption is an application of the expressio unius canon. See, e.g., United

States v. Male Juvenile, 280 F.3d 1008, 1015 (9th Cir. 2002); Collinsgru v.

Palmyra Bd. of Educ., 161 F.3d 225, 232 (3d Cir. 1998).

8

correct (Br. 11) that the meaning of “final” in Section 2244 is

a question of federal law, that fact would not necessarily

preclude adoption as the federal definition the relevant state

law definition. See, e.g., De Sylva v. Ballentine, 351 U.S.

570, 580 (1956); Reconstruction Fin. Corp. v. Beaver County,

328 U.S. 204, 209 (1946). In addition, Congress may have

been concerned that, absent the clarifying language in Sec-

tion 2244(d)(1)(A), courts might assume that the limitation

period in Section 2244 begins at the same time as the

limitation period in Section 2263, which applies to state

prisoners serving capital sentences in States that qualify for

expedited collateral review procedures. Because Section

2244 and 2263 both concern state prisoners, Congress may

have determined that there was a particular risk that courts

would conclude that the time limit in Section 2244 should,

like the time limit in Section 2263, run from the conclusion of

state court review rather than the expiration of the time to

seek review in this Court. See U.S. Br. 32.?

B. There Is No General Rule That A Judgment Of

Conviction Becomes Final When The Court Of

Appeals Issues Its Mandate

_ Amicus contends (Br. 22-36) that there is a “broadly es-

tablished” (Br. 22) rule that a judgment becomes final when

the court of appeals issues its mandate on direct appeal.

There is, however, no such general rule. Although a

mandate-based definition of finality has been used in a few

2 Amicus relies (Br. 20-21) on Section 2263 to support his interpreta-

tion of Section 2255 by making a negative implication argument similar to

the one he makes based on Section 2244. As the government explained in

its opening brief (at 30-31), the negative implication argument based on

Section 2263 is unpersuasive for the same reasons that the argument

based on Section 2244 is unpersuasive. The argument based on Section

2263 also fails because Section 2263 is so dissimilar in language and

structure to Section 2255 that it is inappropriate to draw any inference

from differences in language between the two provisions.

9

situations, it is only one of several alternative definitions

that may apply depending on the particular context. There

is no reason to conclude that Congress intended “final” to

have that meaning in Section 2255 rather than the term’s

established meaning in the law of collateral review.

1. Contrary to amicus’s suggestion, there is no one

“broadly established” (Br. 22) understanding of when a

judgment becomes final. Rather, differing definitions of

finality apply depending on the circumstances.

a. As discussed above, in the collateral review context, a

judgment not reviewed by this Court is considered final

when this Court denies review or the time to petition for a

writ of certiorari expires. See pp. 1-2, supra. In certain

other situations, a judgment is considered final upon its

entry by the district court. Thus, a judgment is “final” for

the purpose of whether it may be reviewed on appeal when

“there has been a decision by the District Court that ends

the litigation on the merits and leaves nothing for the court

to do but execute the judgment.” Midland Asphalt Corp. v.

United States, 489 U.S. 794, 798 (1989) (internal quotation

marks and citations omitted). A judgment of conviction is

final for that purpose “after conviction and imposition of

sentence.” Ibid. The Court has also used that definition of

finality in applying the principle that the privilege against

compelled self-incrimination adheres only until “the judg-

ment of conviction has become final.” Mitchell v. United

States, 526 U.S. 314, 326 (1999) (equating finality of the judg-

ment of conviction with the time at “which the sentence has

been fixed“).

3 In Melkonyan v. Sullivan, 501 U.S. 89, 95 (1991), the Court stated

that, “(t}raditionally, a ‘final judgment’ is one that is final and appealable.”

Based on that understanding, the Court described the definition of “final

judgment” in the Equal Access to Justice Act, 28 U.S.C. 2412(d)(2)(G)

(“final and not appealable”), as “unusual.” 501 U.S. at 95. Those state-

ments refer to situations in which a judgment is final upon its issuance by

10

In still other circumstances, a judgment is considered final

when the court of appeals fully resolves the appeal (even

though the court has not yet issued its mandate). For

example, for the purpose of seeking review from this Court,

a judgment “‘is final when the issues are adjudged’ and

settled with finality.” Scofield v. NLRB, 394 U.S. 423, 427

(1969) (quoting Market St. Ry. v. Railroad Comm'n, 324

U.S. 548, 551 (1945)). “{FJinality is not deferred by the exis-

tence of a latent power in the rendering court to reopen or

revise its judgment.” Market St. Ry., 324 U.S. at 551. Thus,

even for state court judgments, which this Court may review

only if they are “final” (28 U.S.C. 1257), t jhe time to file a

petition for a writ of certiorari runs from the date of entry of

the judgment or order sought to be reviewed, and not from

the issuance date of the mandate.” Sup. Ct. R. 13.3.

b. In a few limited situations, some courts of appeals

have ruled that the finality of a judgment occurs upon the

issuance of the mandate by the court of appeals. But, con-

trary to amicus’s contention, those decisions do not establish

a general definition of finality, even “with regard to the com-

mencement of statutes of limitations and other time bars.”

Amicus Br. 22.

the district court. Because amicus does not contend that “final” has that

meaning for purposes of Section 2255, his reliance (Br. 28-29, 37) on

Melkonyan is misplaced.

4 Amicus notes (Br. 31-35) that, when a court employs the definition of

finality based on entry of judgment by the district court or the definition

based on entry of the judgment by the court of appeals, finality is

generally suspended by the filing of a motion for reconsideration of the

judgment. Amicus further notes (Br. 31, 35) that only the actual filing of

such a motion suspends the finality of the judgment. Contrary to amicus’s

contention (Br. 36), however, those facts have no relevance here. No

one—not amicus, the parties to this case, or any court of appeals—

contends that Congress employed either of those definitions of finality in

Section 2255. Furthermore, a petition for a writ of certiorari is not

equivalent to a motion for reconsideration.

11

As amicus notes (Br. 22-27), some courts have adopted a

mandate-based definition of finality in interpreting the term

“final judgment” in the prior version of Federal Rule of

Criminal Procedure 33 authorizing a motion for a new trial

based on newly discovered evidence and the term “final” in

the Speedy Trial Act of 1974, 18 U.S.C. 3161(d)(2) and (e).

One court of appeals has relied on that understanding of

finality in construing Missouri’s “savings” statute, which

allows certain tort plaintiffs to refile dismissed claims after

the statute of limitations has run. See Glick v. Ballentine

Produce, Inc., 397 F.2d 590 (8th Cir. 1968). Even in those

situations, however, there is no uniformly held view that

finality occurs when the court of appeals issues its mandate.

Nor does a mandate-based definition of finality generally

apply to other limitation provisions. For example, none of

the time limits for seeking review by this Court runs from

the issuance of the mandate. See p. 10, supra; 28 U.S.C.

2101; Sup. Ct. R. 13.3, 18.1. Similarly, although there are

two other limitation periods for seeking collateral review in

the AEDPA, neither of those periods runs from issuance of

the mandate by the appellate court. See 28 U.S.C. 2244

(conclusion of review by this Court or expiration of time to

seek review); 28 U.S.C. 2263 (“State court affirmance”).

5 See United States v. Reyes, 49 F.3d 63, 66 (2d Cir. 1995) (noting

disagreement among district courts on whether “final judgment” under

former Rule 33 occurs when court of appeals enters judgment or when

court issues mandate); Amicus Br. 27 n.9 (acknowledging that some courts

of appeals have held that the speedy trial clock resumes not when the

mandate issues but when the district court receives it); Owens v. Hewell,

474 S8. E.2d 740, 741-742 (Ga. Ct. App. 1996) (limitation period under

Georgia savings statute runs from entry of judgment on appeal); Kendrick

v. City of Eureka, 82 Cal. App. 4th 364, 371 (2000) (federal savings statute

for supplemental state claims (28 U.S.C. 1367(d)) requires plaintiffs to file

their state law claims in state court within 30 days of entry by the federal

court of appeals of the judgment affirming the dismissal of those claims).

12

2. Not only is there no established rule that a judgment

becomes final when the court of appeals issues its mandate,

but there also is no other reason to assume that Congress

used a mandate-based definition in Section 2255. Section

2255 concerns collateral review, and none of the situations in

which courts have used the mandate-based definition of

finality involves that same context. Former Rule 33 pro-

vided for a motion for a new trial based on “newly discovered

evidence,” Fed. R. Crim. P. 33 (1997); that form of motion,

unlike Section 2255, does not involve a collateral attack on

the court’s legal or factual rulings.’ And the Speedy Trial

Act’s purpose is to promote speedy trials; it does not address

policies related to collateral challenges of convictions.

The language of the Speedy Trial Act also differs in a

critical respect from Section 2255 in a way that reinforces

the distinction between the provisions. The Speedy Trial

Act refers to the finality of the appellate action that brirgs

about the need for the retrial. See 18 U.S.C. 3161(d)(2)

(referring to when “the action occasioning the trial becomes

final”); 18 U.S.C. 3161(e) (same regarding “the action occa-

sioning the retrial”).. Section 2255, in contrast, speaks of the

finality of the “judgment of conviction.” 28 U.S.C. 2255 para.

6(1). Likewise, the Missouri statute construed in Glick de es

not speak of the finality of judgments. See Glick, 397 F.2d at

591-592 (quoting Mo. Ann. Stat. § 537.100). Indeed, the

portion of the Missouri statute at issue in Glick employs

neither the word “final” nor the word “judgment.” See ibid.

As for former Rule 33, that Rule, unlike Section 2255,

expressly refers to the defendant’s “appeal.” See Fed. R.

Crim. P. 33 (1997). That reference supports defining “final

judgment” for purposes of Rule 33 by reference to the

6 A motion for new trial based on grounds other than newly dis-

covered evidence had to be filed “within 7 days after verdict or finding of

guilty or within such further time as the court may fix during the 7-day

period.” Fed. R. Crim. P. 33 (1997).

— — — —

13

finality of the appeal of right rather than the finality of direct

review.

Amicus finds the Rule 33 definition of finality “note-

worthy” (Br. 22-23 n.6) because, in the legislative history of

an early formulation of the Section 2255 time bar, Congress

indicated a desire to bring “the availability of collateral relief

into closer conformity with the approach taken by Federal

law in other contexts,” such as Rule 33, under which there

were time limits on review of federal convictions. S. Rep.

No. 226, 98th Cong., Ist Sess. 10 (1983). As the government

noted in its opening brief (at 22 n.6), however, Congress also

indicated in that legislative history that “the time at which

the judgment of conviction becomes final” (S. 1763, 98th

Cong., Ist Sess. § 6, at 7 (1983)) is when “remedies on direct

review are exhausted or the time for seeking direct review

has expired.” S. Rep. No. 226, supra, at 30. Thus, that

legislative history refutes, rather than supports, amicus's

contention that Congress intended to incorporate the

mandate-based definition of finality that some courts had

used under Rule 33. Instead, the legislative history indicates

that Congress intended to incorporate the meaning of

finality advanced by petitioner and the government. See

US. Br. 22 n.6.

Amicus also argues (Br. 23 n.6) that a parallel interpreta-

tion of Rule 33 and Section 2255 is appropriate because a

motion under Section 2255, like a motion under Rule 33, is “a

further step in the defendant's criminal case.” Ibid. In

certain respects, a Section 2255 motion is a further step in

the movant’s criminal case. See 28 U.S.C. 2255 Rule 1

advisory committee’s note. For example, no filing fee is re-

quired, the files from the criminal case are available to the

court reviewing the motion, the Federal Rules of Criminal

Procedure may govern discovery and certain other aspects

of the proceeding, and a broad range of relief is available.

See ibid. More fundamentally, however, Section 2255 is “a

14

remedy analogous to habeas corpus by state prisoners.” 28

U.S.C. 2255 Rule 12 advisory committee’s note. Thus, as this

Court has explained, “a motion under § 2255, like a petition

for a writ of habeas corpus, is not a proceeding in the original

criminal prosecution but an independent civil suit.” Heflin v.

United States, 358 U.S. 415, 418 n.7 (1959) (citation omitted).

See also Andrews v. United States, 373 U.S. 334, 338 (1963)

(“An action under 28 U.S.C. § 2255 is a separate proceeding,

independent of the original criminal case.).

That characteristic of Section 2255 has important ramifi-

cations, particularly for time limit provisions. Unlike appeals

from orders denying Rule 33 motions, which are governed by

the time limit for criminal appeals, “[a)ppeals from orders

denying motions under Section 2255 are governed by the

civil rules applicable to appeals from final judgments in

habeas corpus actions.” United States v. Hayman, 342 US.

205, 209 n.4 (1952). Thus, the time limit for filing a notice of

appeal under Section 2255 is the same civil time limit that

governs habeas cases. See 28 U.S.C. 2255 Rule 11 advisory

committee’s note. And the time limit for filing a petition for

a writ of certiorari in a Section 2255 case is the same civil

time limit that governs habeas cases. Heflin, 358 U.S. at 418

n.7. There is no reason to conclude that Congress silently

departed from that practice and modeled the time limit for

filing a Section 2255 motion on the time limit for filing a Rule

33 motion, rather than the time limit that governs habeas

cases.

3. Because a Section 2255 motion, like an analogous peti-

tion for habeas corpus, is a form of collateral relief, the rele-

vant definition of “final” for purposes of Section 2255 is the

definition used in this Court’s collateral relief cases. As de-

scribed above, this Court has consistently used that defini-

tion for nearly forty years, and Congress presumably in-

tended to incorporate that well established definition when it

used the term “final” in Section 2255. See p. 1-2, supra.

15

Amicus mistakenly contends (Br. 37-40) that this well-

established definition of finality is not applicable here be-

cause the Court has used that definition only when deciding

whether to apply a new rule retroactively. Contrary to that

contention, the Court has used the definition whenever the

Court has sought to delineate when direct review ends and

collateral review begins. Thus, the Court has used the same

definition of finality even when the Court took the position

that the retroactivity of a new rule should not turn on

whether the judgment of conviction to which the ruie would

apply has become “final.” See Johnson v. New Jersey, 384

U.S. 719, 726 (1966). .

Moreover, the Court has used the same definition of

finality even in cases that have not involved the retroactivity

question at all. Thus, in Barefoot v. Estelle, 463 U.S. 880,

887 (1983), the Court noted that the process of direct review

* * * includes the right to petition this Court for a writ of

certiorari”, in the course of explaining that, when direct

review has concluded, “a presumption of finality and legality

attaches to the conviction” that limits the role of collateral

review. In Bell v. Maryland, 378 U.S. 226 (1964), the Court

addressed the common law rule that repeal of a criminal law

results in dismissal of a criminal conviction if “the legislature

acts before the affirmance of the conviction becomes final.”

Id. at 232. The Court noted that the rule applies to any

criminal case that “has not yet reached final disposition in

the highest court authorized to review it,” id. at 230, and

held that a judgment is not final for purposes of the rule

when it is “on direct review in this Court.” Id. at 232.

In fact, even amicus acknowledges (Br. 39) that the “sharp

line between ‘direct’ and ‘collateral’ review” reflected in the

Court’s definition of finality derives from the “function” and

“scope of the writ of habeas corpus.” As explained above, a

motion for collateral relief under Section 2255 is “analogous

to habeas corpus by state prisoners.” 28 U.S.C. 2255 Rule 12

16

advisory committee’s note. In view of that fact, the Court

uses the same definition of finality for federal and state

prisoners. See Griffith v. Kentucky, 479 U.S. 314, 321 n.6,

328 (1987) (using single definition of “final” in resolving con-

solidated federal and state cases). There is no reason why

Congress would have drawn a distinction where the Court

has not.

C. Differences In Collateral Review Of State And

Federal Convictions Do Not Support Different

Definitions Of Finality In Section 2244 And 2255

1. Amicus erroneously suggests (Br. 41-46) that different

definitions of finality for state and federal prisoners are

justified by differences between habeas corpus ind collateral

relief under Section 2255. As explained above, habeas cor-

pus and Section 2255 are fundamentally analogous remedies.

In enacting Section 2255, Congress “simplified the procedure

for making a collateral attack on a final judgment entered in

a federal criminal case, but it did not purport to modify the

basic distinction between direct review and collateral re-

view.” United States v. Addonizio, 442 U.S. 178, 184 (1979).

Section “2255 was intended to mirror [habeas] in operative

effect.” Davis v. United States, 417 U.S. 333, 344 (1974).

Although there are some minor differences between Section

2255 and habeas, amicus overstates those differences, none

of which bears on the issue presented by this case.

Amicus again notes (Br. 41-42) that Section 2255 is in

some respects a continuation of the criminal case and that

consequently courts can provide broader relief under Section

2255 than under habeas. Amicus fails, however, to offer any

reason why the broader range of relief available under

Section 2255 would have led Congress to provide a shorter

period within which to file a Section 2255 motion. Amicus

also overlooks that Congress and this Court have con-

sistently applied the same time limits to Section 2255

motions and habeas actions notwithstanding Section 2255’s

17

status as a continuation of the underlying criminal case. See

p. 14, supra. Amicus also notes (Br. 42) that habeas review

allows consideration of claims that have already been re-

viewed by state courts, while relief under Section 2255 is

generally limited to claims not raised on direct review. Once

again, however, amicus does not suggest why Congress

would view that difference as warranting a shorter period

within which to file Section 2255 motions. To the extent that

a Section 2255 movant is more likely than a habeas petitioner

to be raising claims that he has not raised previously, that

difference (if it were to have any impact on the time limits

for filing) would seem to justify providing Section 2255

movants with more time rather than less.

Amicus also errs in contending (Br. 42-46) that “finality”

has a different meaning for state and federal prisoners. This

Court has held repeatedly that “the interest in finality is the

same with regard to both federal and state prisoners.”

Francis v. Henderson, 425 U.S. 536, 542 (1976) (quoting

Kaufman v. United States, 394 U.S. 217, 228 (1969)). There-

fore, just as the Court has applied the same definition of

finality to state and to federal prisoners, it has consistently

applied the Teague doctrine and other rules governing

collateral relief equally to both federal and state prisoners,

notwithstanding the absence of federalism and comity con-

cerns in the federal context. See Bousley v. United States,

523 U.S. 614 (1998) (applying Teague principles to Section

2255 motion); Reed v. Farley, 512 U.S. 339, 353-355 (1994)

(scope of cognizable statutory claims is the same for state

and federal prisoners); United States v. Frady, 456 U.S. 152,

167-168 (1982) (cause and prejudice standard applies equally

to state and federal prisoners); Davis, 417 U.S. at 344

(“grounds for relief under § 2255 are equivalent to those

encompassed by § 2254”).

Relying on three district court decisions (Amicus Br. 43

n.19), amicus incorrectly asserts (Br. 42) that a state

18

prisoner cannot file a habeas petition until the time has

expired for the prisoner to file a petition for certiorari on

direct review. Although a state prisoner was at one time

required to petition for certiorari ir his direct appeal in

order to exhaust his state remedies, see Darr v. Burford, 339

U.S. 200, 207 (1950), that is no longer the law. See Fay v.

Noia, 372 U.S. 391, 435-438 (1963). This Court has described

Fay as “reject(ing}” the “argument that habeas corpus

review was unavailable in advance of a petition for certio-

rari.” County Court v. Allen, 442 U.S. 140, 149 n.7 (1979). In

Allen, the Court also cited Stevens v. Marks, 383 U.S. 234

(1966), noting that, in that case, “the Court entertained a

challenge to a state statute in a federal habeas corpus pro-

ceeding even though the defendant had not pursued that

challenge on appeal to thi» Jourt prior to filing his petition

for habeas corpus.” 442 U.S. at 149 n.7.

The district court’s decision in Stevens is one of the three

district court rulings on which amicus relies. But the district

court in Stevens actually held that “a state prisoner may, in

an appropriate case, seek relief in the district court by way

of habeas corpus, notwithstanding that direct review in the

Supreme Court is still open to him.” United States ex rel.

Stevens v. McCloskey, 239 F. Supp. 419, 422 (S. D. N. V.), aff’d

on other grounds, 345 F.2d 305 (2d Cir. 1965), rev'd, 383 U.S.

234 (1966). In any event, as the Court recognized in Allen,

this Court’s review of the merits of the habeas petition in

Stevens demonstrates that, contrary to amicus’s assertion, a

state prisoner is not barred from seeking habeas relief be-

fore the time expires within which he could seek certiorari in

his direct appeal. See also, ¢.g., Hedberg v. Pitchess, 362

F. 2d 511 (9th Cir. 1966) (reversing dismissal of habeas peti-

tion on ground that time for certiorari on direct review had

not expired). There is therefore no difference in the time at

19

which state and federal prisoners can first seek collateral

relief.’

2. The absence of any reason why Congress would have

imposed different time limits on state and federal prisoners

reinforces the conclusion, based on the established definition

of finality in the collateral review context and the text of the

AEDPA, that a judgment of conviction becomes final for

purposes of Sections 2244 and 2255 at the same time—the

conclusion of direct review by this Court or the expiration of

the time for seeking such review. As explained in the gov-

ernment’s opening brief (at 22-26), that rule also advances

the orderly administration of justice.

The period for commencing a collateral attack should not

start to run until the law that will govern the defendant’s

entitlement to post-conviction relief is settled, and, under

Teague v. Lane, 489 U.S. 288 (1989), that occurs only when

the time for seeking certiorari on direct appea! has expired.

Amicus’s alternative proposal (Br. 46)—that federal defen-

dants amend their Section 2255 motions to account for

subsequent changes in the law—is inefficient. There is no

reason to believe that Congress intended for collateral

review to proceed in that piecemeal fashion.

Moreover, although amicus points out (Br. 47) that, even

under the government’s reading of Section 2255, some

prisoners may file frivolous petitions for certiorari on direct

review in order to prolong the time within which to seek

collateral relief, the rule proposed by amicus would provide

an even greater incentive for prisoners to adopt that tactic.

7 The other district court decisions on which amicus relies held that

the petitioners had failed to exhaust state remedies. See Raines v. New

York, 992 F. Supp. 160 (N.D.N.Y. 1998); King v. Cook, 287 F. Supp. 269

(N.D. Miss. 1968). Allen makes clear, however, that the possibility of re-

view by this Court is not a state remedy that must be exhausted. See 442

US. at 149-150 n.7. N

20

U.S. Br. 25-26. There is no cause to provide any additional

incentive (no matter how slight) for frivolous filings.

* * * * *

For the foregoing reasons, and those stated in our ope ning

brief, the judgment of the court of appeals should be vacated

and the case remanded to that court for further proceedings.

Respectfully submitted.

THEODORE B. OLSON

Solicitor General

DECEMBER 2002