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Latham v. U.S.

United States Court of Appeals, Seventh Circuit
May 29, 2008
527 F.3d 651 (7th Cir. 2008)

Summary

holding that defendant's federal conviction did not become final under AEDPA until the time for seeking Supreme Court certiorari expired, despite the voluntary dismissal of his appeal

Summary of this case from Mark v. Thaler

Opinion

No. 07-1724.

Argued May 13, 2008.

Decided May 29, 2008.

Appeal from the United States District Court for the Southern District of Illinois, J. Phil Gilbert, J.

Michael C. McCutcheon (argued), Baker McKenzie, Chicago, IL, for Petitioner-Appellant.

Michael C. Carr (argued), Office of the United States Attorney, Benton, IL, for Respondent-Appellee.

Before EASTERBROOK, Chief Judge, and KANNE and TINDER, Circuit Judges.


A federal prisoner may seek collateral review within one year of "the date on which the judgment of conviction becomes final". 28 U.S.C. § 2255(f)(1). If a convicted person files, and then dismisses, an appeal from a conviction, what is the date of finality? When the appeal is dismissed, or that date plus 90 days to file a petition for certiorari? See 28 U.S.C. § 1254(1); S.Ct. Rule 13.1. The Supreme Court held in Clay v. United States, 537 U.S. 522, 123 S.Ct. 1072, 155 L.Ed.2d 88 (2003), that a federal conviction becomes "final" with the expiration of time to file a petition for a writ of certiorari (or, if certiorari is sought and denied, on the date of denial). The district court concluded that a defendant who dismisses his appeal is not entitled to seek certiorari, so that the time runs from the date of dismissal. 2007 WL 129051, 2007 U.S. Dist. LEXIS 2897 (S.D.Ill. Jan. 11, 2007).

Kendrick Latham filed a notice of appeal from his conviction (for distributing cocaine) on November 14, 2002. His lawyer filed a motion under Fed.R.App.P. 42(b) to dismiss the appeal, representing that Latham agreed to this step; the motion was accompanied by Latham's written consent. This court's clerk dismissed the appeal on May 1, 2003, and the mandate issued immediately. Within two weeks, however, Latham filed a motion to reinstate the appeal; he asserted that his lawyer had misled him about the consequences of dismissal. That motion was denied by a motions panel on June 9, 2003, and a motion to reconsider that decision was returned on June 25, at the direction of the motions judge, because the rules do not allow successive post-decision motions. Latham commenced his collateral attack on May 7, 2004, the district court found. The court held this untimely because the year had been running since May 1, 2003. A judge of this court issued a certificate of appealability after the district judge declined to do so. See Slack v. McDaniel, 529 U.S. 473* 484-85, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000) (certificate of appealability may issue on a substantial procedural question, if the case also presents a substantial constitutional question).

Latham's motion to reinstate the appeal was filed within the time to seek rehearing, see Fed.R.App.P. 40(a)(1), and though it was not captioned "petition for rehearing" it sought a change in the judgment. That was enough to put off "finality" until this court had acted. See United States v. Dieter, 429 U.S. 6, 97 S.Ct. 18, 50 L.Ed.2d 8 (1976). The district judge believed that the issuance of mandate on May 1 prevented Latham from seeking reconsideration, but the time for rehearing under Rule 40(a)(1) — and for that matter the time to request certiorari, see S.Ct. Rule 13.3 — runs from the date of decision and is unrelated to the mandate. If the court grants reconsideration, the mandate can be recalled and the case reinstated. Latham's collateral attack was therefore timely.

What's more, it would have been timely even had he not sought the appeal's reinstatement. The district court assumed that § 1254, which allows the Supreme Court to review judgments by certiorari, works like 28 U.S.C. § 1291, which deals with appellate review of district courts' judgments. Section 1291 allows for review only by persons aggrieved by final decisions. Prevailing litigants — that is, those who received from the district court whatever relief they requested — cannot appeal under § 1291. The district court treated Latham as a prevailing party (he asked for the appeal to be dismissed, after all) who therefore could not seek review by the Supreme Court.

Section 1254, however, allows "any" party, including a prevailing party, to petition for certiorari. See Eugene Gressman, Kenneth S. Geller, Stephen M. Shapiro, Timothy S. Bishop Edward A. Hartnett, Supreme Court Practice 86-89 (9th ed. 2007). It also allows review whether or not a court of appeals has issued a final decision. Id. at 81-86. All that is necessary is that a case be "in" the court of appeals. A notice of appeal from a final decision puts the case in the court of appeals. Hohn v. United States, 524 U.S. 236, 118 S.Ct. 1969, 141 L.Ed.2d 242 (1998). That some later event — such as the issuance of mandate or the denial of a certificate of appealability — puts the case "out" again does not defeat the Supreme Court's authority. It can issue a writ of certiorari to decide whether the case should have remained in the court of appeals rather than being ejected.

The United States reminds us that waivers of appeal are enforceable. See United States v. Wenger, 58 F.3d 280 (7th Cir. 1995). But our practice concerning waivers of appeal supports Latham rather than the prosecutor. A defendant who forswears appellate review as part of a plea bargain remains entitled to file a notice of appeal. Although that appeal is doomed unless the guilty plea is involuntary — for we held in Wenger that the plea and the waiver stand or fall together — the possibility that the defendant will be able to have the plea vitiated permits at least the preliminary stages of an appeal. (This is an application of the principle that every court has jurisdiction to determine its own jurisdiction.) If we dismiss the appeal, the defendant is entitled to ask the Supreme Court to review our judgment by writ of certiorari, and Clay will determine the date on which the conviction becomes "final". What is true of a waiver executed in the district court is true of a waiver executed in the court of appeals. Latham was entitled to argue — to us, and to the Supreme Court — that his appeal should have been reinstated because his waiver was involuntary. So 90 days to seek certiorari is added to May 1, 2003, and the collateral attack is timely.

The judgment of the district court is reversed, and the case is remanded for decision on the merits.


Summaries of

Latham v. U.S.

United States Court of Appeals, Seventh Circuit
May 29, 2008
527 F.3d 651 (7th Cir. 2008)

holding that defendant's federal conviction did not become final under AEDPA until the time for seeking Supreme Court certiorari expired, despite the voluntary dismissal of his appeal

Summary of this case from Mark v. Thaler

holding that defendant's federal conviction did not become final under AEDPA until the time for seeking Supreme Court certiorari expired, despite the voluntary dismissal of his appeal

Summary of this case from Mark v. Thaler

holding that a § 2255 petitioner was entitled to a 90-day window to petition for certiorari after dismissing his appeal

Summary of this case from United Statesn v. Latin

holding that even where direct appeal is voluntarily dismissed, the judgment of conviction becomes final 90 days later, at the expiration of the deadline to seek certiorari

Summary of this case from Muntasir v. United States

finding the one-year period began to run 90 days after the petitioner voluntarily dismissed his direct appeal and the mandate was issued

Summary of this case from Gulley v. United States

concluding that because 28 U.S.C. § 1254 permits "any" party to petition for certiorari, a voluntary dismissal pursuant to Fed. R. App. P. 42(b) becomes final 90 days after dismissal

Summary of this case from Welsh v. United States

noting that a “defendant who forswears appellate review as part of a plea bargain remains entitled to file a notice of appeal” even if “that appeal is doomed unless the guilty plea is involuntary”

Summary of this case from Camacho v. Hobbs

In Latham v. United States, 527 F.3d 651, 653 (7th Cir. 2008) the court held, applying 28 U.S.C. § 2255, that a judgment entered upon a voluntary dismissal of an appeal from a conviction does not become "final" until expiration of the time for filing a petition for certiorari. That time runs from the date of the decision.

Summary of this case from Impresa v. U.S.

In Latham, a habeas petitioner voluntarily dismissed his direct appeal but later moved to reinstate it on the basis that his attorney misled him about the consequences of dismissal.

Summary of this case from United States v. Busby

noting that petitioner who voluntarily dismissed his appeal was 'entitled to ask the Supreme Court to review [the Court of Appeals's] judgment by writ of certiorari,' and date conviction became final was thus after 90-day period for seeking certiorari expired

Summary of this case from Johnson v. United States

In Latham, the court held that a defendant's federal conviction did not become final under the AEDPA until the time for seeking Supreme Court certiorari expired, despite the voluntary dismissal of the defendant's appeal.

Summary of this case from United States v. Rios-Zamora

extending the 90–day period to a petitioner who voluntarily dismissed his appeal, but relying upon the fact that the petitioner had sought to reinstate the appeal within the time allowed for seeking rehearing

Summary of this case from Westmoreland v. Hetzell

following voluntary dismissal of direct appeal, AEDPA limitation period did not begin to run until 90 days for seeking certiorari review expired

Summary of this case from Philentrope v. U.S.

following voluntary dismissal of direct appeal, AEDPA limitation period did not begin to run until 90 days for seeking certiorari review expired

Summary of this case from Philentrope v. United States

following voluntary dismissal of direct appeal, AEDPA limitation period did not begin to run until 90 days for seeking certiorari review expired

Summary of this case from Harter v. Secretary, Department of Corrections

applying Clay rule in context of dismissal of appeal by Circuit

Summary of this case from U.S. v. Smith

stating "that a federal conviction becomes `final' with the expiration of time to file a petition for a writ of certiorari."

Summary of this case from Ramos v. U.S.
Case details for

Latham v. U.S.

Case Details

Full title:Kendrick D. LATHAM, Petitioner-Appellant, v. UNITED STATES of America…

Court:United States Court of Appeals, Seventh Circuit

Date published: May 29, 2008

Citations

527 F.3d 651 (7th Cir. 2008)

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