# Reply Brief — Clay v. United States

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0562%3A08

## Record

- **Collection:** Supreme Court brief
- **Document type:** Reply Brief
- **Published:** January 1, 2003
- **Citation:** 537 U.S. 522

## Text

i
1
|

No. 01-1500 |
ee MEUCLere |
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0562%3A08. Public record. Not legal advice.