In the
United States Court of Appeals
For the Seventh Circuit

Nos. 99-2294 & 99-2451

UNITED STATES OF AMERICA,

Respondent-Appellee,

v.

JAMES MARCELLO and ANTHONY ZIZZO,

Petitioners-Appellants.



Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 98 C 7737--Paul E. Plunkett, Judge.



Argued February 14, 2000--Decided May 15, 2000



  Before BAUER, FLAUM, and EVANS, Circuit Judges.

  EVANS, Circuit Judge. This case gives us the
opportunity to clarify when the courthouse doors
close on defendants who, under the Antiterrorism
and Effective Death Penalty Act (AEDPA), have one
year to file for relief under 28 U.S.C. sec.
2255. Before getting to that, however, we first
comment on an issue regarding the certificate of
appealability (CA) issued by the district court.

  After being convicted of an organized crime
RICO conspiracy, illegal gambling, and extortion
charges, James Marcello and Anthony Zizzo were
sentenced to 12 and 10-year prison terms. The
district court denied their motions for a new
trial; we affirmed their convictions, United
States v. Zizzo, 

(7th Cir. 1997);
and the Supreme Court denied their petition for
certiorari on December 1, 1997, Marcello v.
United States, 

, 

(1997).

  Represented by private counsel, Marcello and
Zizzo filed a consolidated petition/1 for
postconviction relief under sec. 2255 on December
2, 1998. District Judge Plunkett dismissed the
petition as untimely but, over the government’s
objection, granted a CA regarding "(1) what
constitutes a ’final’ judgment so as to start the
one-year limitations period running; and (2) how
the limitations period is computed." Marcello and
Zizzo appealed Judge Plunkett’s dismissal of
their petition. The government moved to dismiss,
arguing that the judge should not have issued a
CA in the first place. A lone circuit judge,
acting as our motions judge, ordered that the
government’s challenge to the CA be considered
together with the underlying statute of
limitations question.

  The AEDPA, enacted in 1996, narrowed and
shortened the avenue of collateral relief
available to convicted criminals. A state
prisoner under 28 U.S.C. sec. 2254 or a federal
prisoner under sec. 2255 may appeal the denial of
a petition only if a CA is issued. 28 U.S.C. sec.
2253. A CA may be issued "only if the applicant
has made a substantial showing of the denial of
a constitutional right." 28 U.S.C. sec.
2253(c)(2).

  The government attempts to knock this entire
appeal out of the box by arguing that the denial
of Marcello and Zizzo’s sec. 2255 petition as
untimely does not implicate their constitutional
rights. Therefore, says the government, the
district court never should have issued the CA
and we lack jurisdiction. Marcello and Zizzo
contend that once a district judge issues a CA--
rightly or wrongly--the appeals must move forward
to the merits.

  We have sent what might be construed as
conflicting signals on whether the grant of a CA
may be challenged. We have said that any
challenge to a CA must be made right away because
quibbling over the worthiness of the CA itself
after the case has progressed to briefing on the
merits will not serve the CA’s purpose of
conserving judicial and prosecutorial resources.
See Romandine v. United States, 

(7th Cir. March 14, 2000); Dahler v. United
States, 

, 1087 (7th Cir. 1998),
cert. denied, 

(1999); Young v.
United States, 

, 799 (7th Cir. 1997).
Yet in at least one other case we dismissed an
issue as inappropriately certified after full
briefing on the merits was completed. See Buggs
v. United States, 

, 443 (7th Cir.
1998).

  Unlike in Romandine, Dahler, and Young, the
government in this case did not forfeit this
issue. Instead, as we just noted, it objected to
the CA in the district court and promptly moved
us to dismiss the appeals before briefing on the
merits took place. So what should be done?

  In a situation like this--a bit of a procedural
morass--we think the best approach is to say we
have discretion to decide the case by reviewing
the validity of the CA or by going straight to
the issues raised on the appeal. We can do this,
of course, because even an unfounded CA gives us
jurisdiction. 

. However, we
will exercise our discretion to review the
issuance of a CA only in rare cases because, as
we noted in Young, "[a]n obligation to determine
whether a certificate should have been issued .
. . increase[s] the complexity of appeals in
collateral attacks and the judicial effort
required to resolve them, the opposite of the
legislative plan." 

our motions
judge allowed the challenge to the CA to pass
without resolution, we go to the issue raised on
this appeal.

  Until a few years ago a prisoner could seek
postconviction relief at almost any time. See,
e.g., Lonchar v. Thomas, 

(1996)
(prisoner who filed first petition 9 years after
being sentenced was not too late). That changed
dramatically with the AEDPA. The new law imposed
a "1-year period of limitation" on petitions,
triggered by one of four events, including "the
date on which the judgment of conviction becomes
final." 28 U.S.C. sec. 2255. The statute does not
define "final" nor does it specify how the 1-year
period should be computed.

  For defendants who try unsuccessfully to take
their case to the Supreme Court, their judgments
of conviction become final on the date their
petitions for certiorari are denied. See Rogers
v. United States, 

, 352-53 (1st Cir.
1999), cert. denied, 

; Kapral v.
United States, 

, 577 (3d Cir. 1999);
United States v. Simmonds, 

, 744
(10th Cir. 1997). See also Stringer v. Black, 

, 226 (1992) (for purposes of Teague v.
Lane, 

(1989), habeas petition’s
conviction became final when petition for
certiorari was denied).

  Although the Supreme Court denied Marcello and
Zizzo’s certiorari petition on December 1, 1997,
that denial was not filed and docketed with this
court until December 4, 1997. Marcello and Zizzo
argue that the 1-year habeas clock did not start
running until that later date and thus their
December 2, 1998, petition arrived on time. The
Supreme Court’s denial of certiorari, however, is
the last word on direct review. Although the
Supreme Court notifies us of its decision, see
Supreme Court Rule 16.3, the efficacy of the
Supreme Court’s order does not depend on when we
receive it. The order denying certiorari is
effective at the time of its entry by the Supreme
Court. See Robert L. Stern et al., Supreme Court
Practice 382-84, 628-29 (7th ed. 1993). No circuit
has held that the certiorari denial is not final
until it is received by the circuit from which
the case originated. See Adams v. United States,

, 1343 (11th Cir. 1999). The
petitioners point out that a district court’s
order is not final until set forth in a separate
document and docketed. See Federal Rules of Civil
Procedure 58 and 79(a); Federal Rule of Appellate
Procedure 4(a) and (b); Williams v. Burlington
N., Inc., 

, 102 (7th Cir. 1987). That
analogy is inapplicable to the situation here,
which involves one court notifying another of its
judgment. When the Supreme Court denies
certiorari, a defendant’s judgment of conviction
is final.

  The harder question is when the 1-year period
to file a sec. 2255 motion ends. Once the Supreme
Court denied the certiorari petition on December
1, 1997, did the defendants have until the
following November 30, December 1, or December 2
to file their sec. 2255 motion?

  The first way of computing the 1-year period,
which we’ll call the calendar-year method, would
sound the buzzer on the petitioners at the close
of business on November 30, 1998. The day the
Supreme Court denies certiorari counts as the
first day, which means the 365th and final day to
file the sec. 2255 motion falls the following
year on the date before the date that certiorari
was denied. Support for this approach comes from
Lindh v. Murphy, 

, 866 (7th Cir. 1996)
(en banc), rev’d on other grounds, 

(1997), which gave already imprisoned individuals
until April 23, 1997, to meet the new 1-year time
limit on collateral attack established by the
AEDPA that went into effect on April 24, 1996. We
and five other circuits have, without analysis,
followed the April 23, 1997, cutoff for those who
already were imprisoned at the time the new law
took effect. Jones v. Bertrand, 

, 500
(7th Cir. 1999); Paters v. United States, 

, 1044 n.1 (7th Cir. 1998); O’Connor v.
United States, 

, 550 (7th Cir. 1998);

; Goodman v. United States,

, 1337 (11th Cir. 1998); Brown v.
Angelone, 

, 375 (4th Cir. 1998);
Burns v. Morton, 

, 111 (3d Cir.
1998); Calderon v. United States Dist. Court for
the Cent. Dist. of Calif., 

, 1287
(9th Cir. 1997), overruled on other grounds, 

(9th Cir. 1998); 

. The issue in all of these cases was not
whether the deadline should be April 23, 1997, or
April 24, 1997, but rather whether prisoners
whose judgments of conviction had been finalized
well before the new law’s date of enactment
should be allowed to seek collateral relief at
all. None of these cases discussed the rationale
for setting April 23 instead of April 24 as the
deadline.

  The second way of calculating the 1-year
period, the anniversary method, closes the gates
on Marcello and Zizzo when the courthouse doors
shut for the day on December 1, 1998. The clock
begins ticking on the day after the Supreme Court
announces the denial of certiorari, which means
the last day the sec. 2255 motion may be filed is
the anniversary date of the certiorari denial.
The basis for this method is Federal Rule of
Civil Procedure 6(a), which says:

In computing any period of time prescribed or
allowed by these rules, by the local rules of any
district court, by order of court, or 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.

See also Federal Rule of Criminal Procedure 45(a)
("[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 three circuits that directly addressed
whether the grace period should end on April 23,
1997, or April 24, 1997, for individuals who
already were imprisoned at the time the new
habeas rules took effect all adopted the
anniversary method. Moore v. United States, 

, 1135 (8th Cir. 1999); Flanagan v.
Johnson, 

, 201 (5th Cir. 1998);
Mickens v. United States, 

, 148 (2d
Cir. 1998). A fourth circuit also adopted April
24 as the cutoff without any analysis. 

.

  Neither the calendar-year method nor the
anniversary method of counting perfectly
satisfies the finicky timekeeper. The Supreme
Court normally issues its decisions a few minutes
after 10 a.m., Eastern time, though occasionally
the court releases orders in the afternoon. If
the Supreme Court denied Marcello and Zizzo’s
petition for certiorari at 10:01 a.m. on December
1, 1997 (9:01 a.m. Central time), the petitioners
technically should still be allowed to file their
sec. 2255 petition between the time the Northern
District of Illinois’ clerk’s office opens (at
8:30 a.m.) and 9 a.m. on December 1, 1998. So,
the calendar-year method gives the defendant at
least a few minutes less than 1 year to file,
just as the anniversary method provides the
defendant up to a few hours more than 1 year to
file.

  Both the calendar-year and the anniversary
method are reasonable--what matters is
establishing an unequivocal rule that lets
litigants know where they stand and spares judges
from becoming enmeshed in such nitpicking in the
future. Because courts do not have stopwatches in
hand when deadlines draw near, and because the
anniversary date is clear and predictable and
therefore easier for litigants to remember, for
lawyers to put in their tickler files, and for
courts to administer, we adopt the anniversary
rule. The first day of the 1-year limitation
period is the day after the Supreme Court denies
certiorari, giving defendants until the close of
business on the anniversary date of the
certiorari denial to file their habeas motion.
The anniversary date will be the last day to file
even when the intervening period includes the
extra leap year day.

  Marcello and Zizzo’s petition was filed a day
late, and Judge Plunkett properly dismissed it as
untimely. Foreclosing litigants from bringing
their claim because they missed the filing
deadline by one day may seem harsh, but courts
have to draw lines somewhere, statutes of
limitation protect important social interests,
see Cada v. Baxter Healthcare Corp., 

, 452-53 (7th Cir. 1990), and limitation
periods work both ways--you can be sure Marcello
and Zizzo would not be pooh-poohing the
prosecution’s tardiness if they had been indicted
one day after the statute of limitations expired
for their crimes.

  Marcello and Zizzo’s last-gasp argument is that
even though they missed the deadline by a day,
the statute of limitations should be equitably
tolled because the law was unclear, the delay was
minimal, the prosecution was not prejudiced, and
Marcello’s attorney’s father died 2 weeks before
the deadline.

  Whether to push back the deadline is a
different issue than when it passed. We know that
sec. 2255’s period of limitation is not
jurisdictional but is instead a procedural
statute of limitations subject to equitable
tolling. Taliani v. Chrans, 

(7th
Cir. 1999). Even so, equitable tolling is granted
sparingly. Irwin v. Department of Veterans
Affairs, 

, 96 (1990). Extraordinary
circumstances far beyond the litigant’s control
must have prevented timely filing. See Hoosier
Bancorp of Indiana, Inc. v. Rasmussen, 

, 183 (7th Cir. 1996); 

. Though we sympathize with the attorney
who suffered the loss of her father several weeks
before the deadline, the threshold necessary to
trigger equitable tolling is very high, lest the
exceptions swallow the rule. The petitioners’
argument that the deadline was unclear also makes
no sense, because if it was unclear, they should
have filed by the earliest possible deadline, not
the latest. The deadline simply was missed. That
is not grounds for equitable tolling. 

. And that makes this all more
than a little ironic because allegations of trial
attorney missteps formed the basis of this sec.
2255 motion that was filed too late. The judgment
of the district court dismissing the petitions as
untimely is AFFIRMED.



/1 We use "petition" as a synonym for "motion," the
term used in the statute.