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Rosa v. United States

United States Court of Appeals, Second Circuit

May 13, 2015

EFRAIN J. ROSA, Petitioner-Appellant,
v.
UNITED STATES OF AMERICA, Respondent-Appellee

Argued April 13, 2015

On appeal from a judgment of the United States District Court for the Northern District of New York (Norman A. Mordue, Judge) denying habeas relief from a 120-year prison sentence imposed on a guilty plea to three counts of producing child pornography and one count of witness tampering in violation of18 U.S.C. § § 1512(b)(1) and 2251(a). Rosa argues that the district court erred in finding his petition untimely under the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214, because he filed it more than one year after the Supreme Court denied his petition for a writ of certiorari. He maintains that his filing was timely when calculated from the Supreme Court's denial of his petition for rehearing of the denial of his certiorari petition.

AFFIRMED.

SALLY WASSERMAN, ESQ., New York, New York, for Petitioner-Appellant.

JONATHAN S. MELTZER, Bristow Fellow, Office of the Solicitor General, U.S. Department of Justice, Washington, D.C. (Steven D. Clymer, Assistant United States Attorney, on the brief), for Richard S. Hartunian, United States Attorney for the Northern District of New York, Syracuse, New York, for Respondent-Appellee.

Before: WALKER, RAGGI, and DRONEY, Circuit Judges.

OPINION

Page 857

Reena Raggi, Circuit Judge.

On this appeal, we decide whether the timeliness of a habeas corpus petition, see 28 U.S.C. § 2255, under the one-year statute of limitations of the Antiterrorism and Effective Death Penalty Act of 1996 (" AEDPA" ), Pub. L. No. 104-132, 110 Stat. 1214, runs from the Supreme Court's denial of a writ of certiorari or from the denial of a petition for rehearing of the denial of certiorari. Eight of our sister circuits have considered the question, and all have reached the same conclusion: the statute of limitations runs from the denial of certiorari, not from the denial of rehearing of the certiorari petition. See United States v. Aguirre-Ganceda, 592 F.3d 1043, 1045 (9th Cir. 2010); Drury v. United States, 507 F.3d 1295, 1297 (11th Cir. 2007); In re Smith, 436 F.3d 9, 10 (1st Cir. 2006); Robinson v. United States, 416 F.3d 645, 650 (7th Cir. 2005); Campa-Fabela v. United States, 339 F.3d 993, 993 (8th Cir. 2003); Giesberg v. Cockrell, 288 F.3d 268, 270-71 (5th Cir. 2002); United States v. Segers, 271 F.3d 181, 184-86 (4th Cir. 2001); United States v. Willis, 202 F.3d 1279, 1280-81 (10th Cir. 2000).[1] We now join them.

Petitioner Efrain J. Rosa is presently incarcerated serving a 120-year prison sentence on his guilty plea to three counts of producing child pornography and one count of witness tampering in violation of 18 U.S.C. § § 1512(b)(1) and 2251(a). See United States v. Rosa, 626 F.3d 56 (2d Cir. 2010) (affirming conviction), reh'g denied,

Page 858

634 F.3d 639 (2011).[2] Rosa now appeals from a judgment entered on March 7, 2014, in the United States District Court for the Northern District of New York (Norman A. Mordue, Judge ), denying his motion to vacate his sentence, pursuant to 28 U.S.C. § 2255. The district court determined that Rosa's motion was barred by AEDPA's one-year statute of limitations. A panel of this court granted a certificate of appealability (" COA" ) on the issue of whether Rosa's " conviction became final for purposes of triggering the one-year limitations period of 28 U.S.C. § 2255 when the Supreme Court denied his petition for a writ of certiorari, and not when it denied his petition for rehearing." Rosa v. United States, No. 14-889 (2d Cir. July 2, 2014), ECF No. 26. We now hold that the statute of limitations commenced when the Supreme Court denied Rosa's petition for a writ of certiorari.[3]

The Supreme Court denied Rosa's certiorari petition on February 27, 2012, see Rosa v. United States, 132 S.Ct. 1632, 182 L.Ed.2d 235 (2012), and denied his petition for rehearing on May 14, 2012, see Rosa v. United States, 132 S.Ct. 2424, 182 L.Ed.2d 1054 (2012). Rosa filed this § 2255 motion on May 13, 2013, which was more than one year after the denial of his certiorari petition, but just less ...


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