No. 99-1043
In the Supreme Court of the United States
LENOX MICHAEL OKOLIE, PETITIONER
v.
UNITED STATES OF AMERICA
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
BRIEF FOR THE UNITED STATES IN OPPOSITION
SETH P. WAXMAN
Solicitor General
Counsel of Record
JAMES K. ROBINSON
Assistant Attorney General
DAVID S. KRIS
Attorney
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217
QUESTION PRESENTED
Section 105 of the Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA) amended 28 U.S.C. 2255 (Supp. III 1997) to establish a "1-year
period of limitation" governing motions for collateral relief under
that Section. That period runs from the latest of four specified events,
only one of which is relevant to this case-"the date on which the judgment
of conviction becomes final." 28 U.S.C. 2255 (Supp. III 1997). In cases
such as this one, in which the defendant's judgment of conviction became
final before AEDPA took effect on April 24, 1996, the courts of appeals
have recognized a one-year grace period, running from AEDPA's effective
date, within which prisoners may file Section 2255 motions. The question
presented is whether the one-year grace period expired on April 23, 1997,
or April 24, 1997.
In the Supreme Court of the United States
No. 99-1043
LENOX MICHAEL OKOLIE, PETITIONER
v.
UNITED STATES OF AMERICA
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
BRIEF FOR THE UNITED STATES IN OPPOSITION
OPINIONS BELOW
The order of the court of appeals denying petitioner a certificate of appealability
and dismissing his appeal (Pet. App. A1) is not yet reported. The order
of the district court denying petitioner a certificate of appealability
(Pet. App. A1-A2) is not yet reported.
JURISDICTION
The judgment of the court of appeals was entered on September 17, 1999.
The petition for a writ of certiorari was filed on December 16, 1999. The
jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).
STATEMENT
Following a jury trial in the United States District Court for the Southern
District of Florida, petitioner was convicted of conspiring to distribute
heroin and cocaine, in violation of 21 U.S.C. 846, and distributing heroin,
in violation of 21 U.S.C. 841(a)(1). He was sentenced to 169 months of imprisonment,
to be followed by five years of supervised release. The court of appeals
affirmed petitioner's conviction and sentence in an unpublished order. United
States v. Okolie, 39 F.3d 323 (11th Cir. 1994) (Table), cert. denied, 513
U.S. 1198 (1995). Petitioner thereafter filed a motion to vacate his conviction
and sentence under 28 U.S.C. 2255. The district court denied relief and
denied a certificate of appealability (COA). Pet. App. A1-A4. The court
of appeals likewise denied a COA and dismissed petitioner's appeal. Id.
at A1.
On April 29, 1997, the district court received and docketed petitioner's
pro se Section 2255 motion. Pet. App. A9. In its answer to petitioner's
motion, the government argued, among other things, that the motion should
be dismissed as untimely under the one-year limitations period in Section
2255. Gov't Answer to Movant's Motion to Vacate 4, 12, 14.
Section 105 of the Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA) amended 28 U.S.C. 2255 to establish a "1-year period of limitation"
governing motions for collateral relief under that Section. That period
runs from the latest of four specified events, only one of which is relevant
to this case-"the date on which the judgment of conviction becomes
final." 28 U.S.C. 2255 para. 6(1) (Supp. III 1997).1 In cases such
as this one, in which the defendant's judgment of conviction became final
before AEDPA took effect on April 24, 1996, the courts of appeals have recognized
a one-year grace period, running from AEDPA's effective date, within which
prisoners may file Section 2255 motions. See Rogers v. United States, 180
F.3d 349, 353-354 & n.9 (1st Cir. 1999), cert. denied, 120 S. Ct. 958
(2000).
In its answer to petitioner's motion, the government noted that "the
Department of Justice has taken the position that defendants whose convictions
became final prior to April 24, 1996 had until April 24, 1997 to file any
motions pursuant to 28 U.S.C. § 2255." Gov't Answer to Movant's
Motion to Vacate 12. The government contended that petitioner's Section
2255 motion was untimely because it was filed on April 29, 1997, five days
after the end of the grace period. See id. at 4, 14.
The magistrate judge recommended dismissal of petitioner's motion as untimely
but on grounds different from those asserted by the government. Petitioner's
Section 2255 motion contained a "solemn declaration" that he had
placed the motion in the prison legal mail system on April 24, 1997. Pet.
App. A9. Relying on that declaration, the magistrate judge "assumed
that the present motion was filed on April 24, 1997." Ibid.; see generally
Houston v. Lack, 487 U.S. 266 (1988). The magistrate judge concluded, however,
that the one-year grace period expired on April 23, 1997, rather than April
24, 1997, and she therefore recommended that petitioner's motion be denied
as untimely. See Pet. App. A10. The district court adopted the magistrate
judge's report and recommendation. Id. at A4.
Petitioner moved for reconsideration and, in the alternative, for a COA.
Without requiring a response from the government, the magistrate judge recommended
denial of petitioner's requests. The magistrate judge maintained the view
that petitioner's motion was untimely, but also noted that "review
of the case reveals that [petitioner] would have virtually no chance of
success if [his] claims were considered on the merits." Report &
Recommendation 5. Recommending denial of petitioner's request for a COA,
the magistrate judge stated that "[r]eview of the file in this case
reveals that no [substantial] showing [of the denial of a constitutional
right] has been made." Id. at 6. The district court adopted the magistrate
judge's report and recommendation. See Pet. App. A1-A2.
Petitioner filed a notice of appeal. On September 17, 1999, finding that
petitioner "failed to make a showing of the denial of a constitutional
right," the court of appeals denied him a COA and dismissed his appeal.
Pet. App. A1.
ARGUMENT
Petitioner contends (Pet. 7-8) that this Court's review is needed to resolve
a conflict among the courts of appeals concerning whether a Section 2255
motion to set aside a conviction that became final before the enactment
of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) is
timely if the motion was filed on April 24, 1997. There is a conflict among
the courts of appeals on that question: some courts have stated that such
motions are timely until April 23, 1997, while others have identified April
24, 1997, as the cut-off date for filing. This Court's resolution of that
conflict is not necessary, however, because the issue lacks continuing importance.
Moreover, the court of appeals correctly denied petitioner a certificate
of appealability (COA), because, regardless of whether his Section 2255
motion was timely, he has not made "a substantial showing of the denial
of a constitutional right." 28 U.S.C. 2253(c)(2) (Supp. III 1997).
Accordingly, the petition for a writ of certiorari should be denied.
1. As described above, in cases such as this one, in which the defendant's
judgment of conviction became final before AEDPA took effect on April 24,
1996, the courts of appeals have recognized a one-year grace period, running
from AEDPA's effective date, within which to file a Section 2255 motion
(or a habeas corpus petition under the analogous time limit for state prisoners,
28 U.S.C. 2244(d)(1)(A) (Supp. III 1997)). See Rogers v. United States,
180 F.3d 349, 353-354 & n.9 (1st Cir. 1999) (citing cases), cert. denied,
120 S. Ct. 958 (2000); Mickens v. United States, 148 F.3d 145, 148 (2d Cir.
1998); Burns v. Morton, 134 F.3d 109, 111-112 (3d Cir. 1998); Brown v. Angelone,
150 F.3d 370, 374-375 (4th Cir. 1998); Flanagan v. Johnson, 154 F.3d 196,
200-202 (5th Cir. 1998); Brown v. O'Dea, 187 F.3d 572, 576 (6th Cir. 1999);
Lindh v. Murphy, 96 F.3d 856, 866 (7th Cir. 1996) (en banc), rev'd on other
grounds, 521 U.S. 320 (1997); Moore v. United States, 173 F.3d 1131, 1133-
1135 (8th Cir. 1999); Calderon v. United States District Court, 128 F.3d
1283, 1287 (9th Cir. 1997), cert. denied, 522 U.S. 1099 and 523 U.S. 1061
(1998), overruled on other grounds, Calderon v. United States District Court,
163 F.3d 530 (9th Cir. 1998) (en banc), cert. denied, 119 S. Ct. 1377 (1999);
United States v. Simmonds, 111 F.3d 737, 745-746 (10th Cir. 1997); Goodman
v. United States, 151 F.3d 1335, 1337 (11th Cir. 1998).
In calculating the precise length of that one-year grace period, some courts
have stated that applications for collateral relief are timely if filed
on or before April 23, 1997, and other courts have held that such applications
are timely if filed on or before April 24, 1997. See Rogers, 180 F.3d at
355 n.13 (citing cases). Specifically, the First, Second, Fifth, and Eighth
Circuits have held that the cut-off date is April 24. See id. at 355; Mickens,
148 F.3d at 148; Flanagan, 154 F.3d at 201-202; Moore, 173 F.3d at 1135.
The Third, Fourth, Seventh, Ninth, Tenth and Eleventh Circuits have stated
that the cut-off date is April 23. See Burns, 134 F.3d at 111; Brown v.
Angelone, 150 F.3d at 375; Lindh, 96 F.3d at 866; Calderon, 128 F.3d at
1287; Simmonds, 111 F.3d at 746; Goodman, 151 F.3d at 1337.
The United States agrees with those courts of appeals that have concluded
that the deadline is April 24, 1997. All the courts of appeals that have
devoted extended analysis to the question have concluded that April 24 is
the correct cut-off date. The courts that have adopted an April 23 cut-off
date in published decisions have done so without extended reasoning, and
in cases in which the precise length of grace period did not make a difference
to the outcome.2 Federal Rule of Civil Procedure 6(a) provides that "[i]n
computing any period of time prescribed or allowed * * * by any applicable
statute, the day of the act, event, or default from which the designated
period of time begins to run shall not be included." Federal Rule of
Criminal Procedure 45(a) provides, in part, that "[i]n computing any
period of time the day of the act or event from which the designated period
of time begins to run shall not be included." The Federal Rules of
Civil Procedure inform the proper procedure in cases under 28 U.S.C. 2254
(1994 & Supp. III 1997), and those rules and the Federal Rules of Criminal
Procedure inform the proper procedure in cases under Section 2255. See Rule
11 of the Rules Governing Section 2254 Cases; Rule 12 of the Rules Governing
Section 2255 Cases. This Court long ago endorsed a similar principle. See
Sheets v. Selden's Lessee, 69 U.S. (2 Wall.) 177, 190 (1864).
This Court's intervention is not required, however, to resolve the tension
among the courts of appeals. There is universal agreement that a one-year
grace period applies to the time-limit provisions. Moore, 173 F.3d at 1133.
The dispute over the precise length of the grace period affects only a small
number of collateral attacks-those filed on April 24, 1997. Most of those
cases have by now been resolved, and the issue is of little ongoing significance.
Review of the issue by this Court is therefore unnecessary.
2. This case would not, in any event, be an appropriate one in which to
resolve the question, because the court of appeals correctly denied petitioner
a certificate of appealability, even if his Section 2255 motion was timely
filed. A certificate of appealability may issue only if the applicant makes
"a substantial showing of the denial of a constitutional right."
28 U.S.C. 2253(c)(2) (Supp. III 1997). Petitioner has not made that showing
because the claims in his Section 2255 motion lack merit.3
As the government pointed out in its answer to petitioner's Section 2255
motion (page 14-17), many of the issues raised by petitioner were rejected
on direct appeal and are therefore foreclosed on collateral review, and
others were never raised and are therefore procedurally defaulted. See,
e.g., Withrow v. Williams, 507 U.S. 680, 720-721 (1993) (Scalia, J., concurring)
(collecting cases); United States v. Frady, 456 U.S. 152 (1982); United
States v. Perez 129 F.3d 255, 260 (2d Cir. 1997). As to petitioner's remaining
claims, the magistrate judge, in recommending denial of petitioner's request
for a COA, correctly stated that "review of the case reveals that [petitioner]
would have virtually no chance of success if [his] claims were considered
on the merits." Report & Recommendation 5.
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.
SETH P. WAXMAN
Solicitor General
JAMES K. ROBINSON
Assistant Attorney General
DAVID S. KRIS
Attorney
FEBRUARY 2000
1 The time limit provision provides that it runs from the "latest"
of four specified events, including (2) "the date on which the impediment
to making a motion created by governmental action in violation of the Constitution
or laws of the United States is removed, if the movant was prevented from
making a motion by such governmental action"; (3) "the date on
which the right asserted was initially recognized by the Supreme Court,
if that right has been newly recognized by the Supreme Court and made retroactively
applicable to cases on collateral review"; or (4) "the date on
which the facts supporting the claim or claims presented could have been
discovered through the exercise of due diligence." 28 U.S.C. 2255 para.
6(2)-(4) (Supp. III 1997). Those three sub-sections are not at issue in
this case. See Pet. App. A9-A10.
2 In unpublished decisions, the Tenth and Fourth Circuits have concluded
that collateral attacks filed on April 24, 1997, are untimely. See Garza
v. Gibson, No. 98-7030, 2000 WL 6194 (10th Cir. Jan. 6, 2000) (unpublished);
United States v. Runnells, 162 F.3d 1158 (4th Cir. 1998) (Table).
3 Some courts of appeals have held that they may review a procedural ruling
denying collateral relief without a showing that an underlying constitutional
claim has potential merit. See, e.g., Gaskins v. Duval, 183 F.3d 8, 9 n.1
(1st Cir. 1999), Whitehead v. Johnson, 157 F.3d 384, 388 (5th Cir. 1998).
See also Henry v. Department of Corrections, 197 F.3d 1361, 1366 n.2 (11th
Cir. 1999) (reserving question). This Court's decision in Slack v. McDaniel,
No. 98-6322 (to be reargued on Mar. 29, 2000), may shed light on that issue.
There is no need, however, to hold this case pending the decision in Slack,
because, as we explain in the text, the time-limit issue that petitioner
has raised has no continuing significance, and petitioner's underlying claims
are without merit.