On April 5, 2004, Moshier, pro se and incarcerated, filed in the District Court a motion to vacate his 2002 federal conviction and sentence, which the District Court construed as a § 2255 motion. The certificate of service attached to the motion states that it was mailed on April 1, 2004, and the sworn notice of motion and verification, also attached to the motion, are dated April 1, 2004 as well. See Houston v. Lack, 487 U.S. 266, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988) (stating prison mailbox rule). Moshier's judgment of conviction was entered on April 29, 2002, and Moshier did not file a direct appeal from the judgment, possibly because he had waived his right to appeal in a plea agreement.
By order entered October 28, 2004, after providing Moshier with an opportunity to address the timeliness issue, the District Court denied Moshier's motion as time-barred and declined to issue a certificate of appealability. The court explained that, because Moshier had filed his motion "nearly two years after his conviction had become final," and because Moshier had "offered no argument that the statute of limitations accrued on some later date," each claim was time-barred.
On both October 27, 2004 and November 9, 2004, Moshier filed notices of appeal, apparently resulting in the opening of two appellate docket numbers. Thereafter, Moshier filed in this Court two identical motions for certificates of appealability that were docketed under the two docket numbers. Moshier also requested leave to proceed in forma pauperis.
Pursuant to Slack v. McDaniel, 529 U.S. 473, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000), when a district court denies a § 2255 motion on procedural grounds, a certificate of appealability may issue only
Effective April 24, 1996, the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA") requires, among other things, that § 2255 motions be filed within one year from:
28 U.S.C. § 2255 ¶ 6. Congress did not explicitly state in AEDPA when a judgment of conviction becomes final for purposes of § 2255. In Clay v. United States, however, the Supreme Court held that a conviction becomes final when the Supreme Court "affirms a conviction on the merits on direct review or denies a petition for a writ of certiorari, or when the time for filing a certiorari petition expires." 537 U.S. 522, 527, 123 S.Ct. 1072, 155 L.Ed.2d 88 (2003).
The Supreme Court has not determined when an unappealed federal criminal judgment becomes final for purposes of § 2255, and we also have not decided this issue. The two circuit courts of appeal to address the issue, however, have held that such a conviction becomes final when the time for filing a direct appeal expires. See Sanchez-Castellano v. United States, 358 F.3d 424, 428 (6th Cir.2004) (finding that, for purposes of § 2255 motions, "an unappealed federal criminal judgment becomes final ten days after it is entered"); Kapral v. United States, 166 F.3d 565, 577 (3d Cir.1999) ("If a defendant does not pursue a timely direct appeal to the court of appeals, his or her conviction and sentence become final, and the statute of limitation begins to run, on the date on which the time for filing such an appeal expired."). We agree and therefore hold that, for purposes of § 2255 motions, an unappealed federal criminal judgment becomes final when the time for filing a direct appeal expires.
As Moshier's judgment of conviction was entered on Monday, April 29, 2002, his conviction became final for AEDPA purposes on Thursday, May 9, 2002, the date on which his time to file a direct appeal expired.