Thursday, July 24, 2008

When Defendant Files Untimely Notice of Appeal That is Later Dismissed, Conviction is Final Under 2255 When the Time for Appeal Expired

United States v. Plascencia, No. 05-11169 (5th Cir. July 23, 2008) (Reavley, Benavides; Owen, dissenting)

Here's one for all you habeas-heads and procedure-philes out there: when a defendant files a notice of appeal after the ten-day deadline, but within the thirty-day period in which the deadline may be extended, and the appeal is later dismissed after a finding that there was no good cause or excusable neglect for the late filing, when does the conviction become "final" for purposes of 28 U.S.C. § 2255?

The majority here holds that the conviction became final on the date that the ten-day appeal deadline expired, and not, as Plascencia argued, at the end of the 90-day period in which he could have filed a cert petition seeking review of the dismissal.

The Fifth Circuit had not previously addressed this question, but it had noted in the past "that there is no indication Congress intended federal and state prisoners to be treated differently in habeas proceedings and that 'final' in § 2255 has the same meaning as 'final' used for the analogous limitation period in 28 U.S.C. § 2254 proceedings." And in the latter case, the Fifth Circuit has held that "[w]hen a state prisoner has appealed his conviction to the state court of last resort, the conclusion of the direct review process includes the 90-day period for seeking certiorari in the Supreme Court[,]" but "[i]f the prisoner stops the appeal process before that point, . . . the conviction becomes final when the time for seeking further review in the state court expires."

According to the majority, at least three other circuits applying that rule in the § 2255 context "have held that when a federal prisoner fails to file a notice of appeal from his conviction (in other words, when he fails to pursue the direct appeal process), the conviction becomes final for purposes of § 2255 upon the expiration of the 10-day period for filing a direct appeal." The majority agreed with that approach, and held that "[b]y failing to file an effective notice of appeal by [the ten-day deadline], Plascencia allowed the direct review process to expire, and his conviction became final on that date."

Plascencia pointed to the Supreme Court's decision in Clay v. United States, which "held that if a federal defendant appeals his conviction to the court of appeals and then does not seek certiorari, the conviction becomes final when the 90-day period expires during which the defendant could have filed a petition for certiorari." But the majority responded that Clay does not apply because Plascencia "never filed an effective notice of appeal in this court[,]" and because any cert petition would have challenged the dismissal of his appeal, not his conviction.

Judge Owen, although recognizing that "there is room for debate" on the question, dissented. She disagreed with the majority's view that Plascencia's untimely notice of appeal was ineffective, as well as the majority's distinction between a cert petition challenging the conviction itself as opposed to one challenging the dismissal of an untimely appeal. In her view, based on the Supreme Court's construction of 2255 in Clay, the statute's "focus is [on] when a criminal conviction in a federal court becomes final and no longer subject to direct review rather than the intricacies of how the direct appeal process is concluded." Judge Owen also argued that the other circuits' decisions cited by the majority in support of its holding "are [not] directly on point." Given that Plascencia could have filed a cert petition after his appeal was dismissed, she found it "difficult to believe that Congress intended the one-year limitation period to commence before the final outcome of proceedings regarding a notice of appeal from a judgment of conviction . . . ."

Sounds like this probably won't be the last word on the matter.



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