Olga Lydia Ramirez v. United States , 146 F. App'x 325 ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JULY 22, 2005
No. 05-10010
THOMAS K. KAHN
Non-Argument Calendar
CLERK
________________________
D.C. Docket Nos. 04-22099-CV-FAM & 02-21058 CR-FAM
OLGA LYDIA RAMIREZ,
Plaintiff-Appellant,
versus
UNITED STATES OF AMERICA,
Defendant-Appellee.
__________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(July 22, 2005)
Before BIRCH, BARKETT and MARCUS, Circuit Judges.
PER CURIAM:
Olga Lydia Ramirez, a federal prisoner proceeding pro se, appeals the district
court’s dismissal of her 28 U.S.C. § 2255 motion to vacate, set aside, or correct her
sentence. The district court dismissed Ramirez’s § 2255 motion as time-barred
because it was filed more than one year after her judgment of conviction became
final. Ramirez requested a certificate of appealability (“COA”), which the district
court granted only as to the issue of whether her § 2255 motion was timely. The
Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub.L.No. 104-
132, 110 Stat. 1214 (1996), governs this appeal because Ramirez’s § 2255 motion
was filed in 2004, after the AEDPA’s enactment. We review de novo a district
court’s determination that a § 2255 motion was time-barred. See Jones v. United
States, 304 F.3d 1035, 1037 (11th Cir. 2002).
On appeal, Ramirez argues that her judgment of conviction did not become
final until the time period for seeking a writ of certiorari expired, which was 90 days
after entry of final judgment. Ramirez asserts that, because she filed her § 2255
motion within 1 year and 90 days of the entry of her written judgment of conviction,
her motion was timely, and the district court erred by dismissing it as time-barred.
We disagree.
The AEDPA established a one-year statute of limitations applicable to § 2255
motions, which begins to run from, inter alia, “the date on which the judgment of
conviction becomes final.” 28 U.S.C. § 2255. In most cases, a judgment of
conviction becomes final when the time for filing a direct appeal expires. Akins v.
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United States, 204 F.3d 1086, 1089 n.1 (11th Cir. 2000). There are two recognized
exceptions to this general rule, which apply when a federal prisoner seeks direct
appellate review of her conviction or sentence. First, if, following the disposition of
her direct appeal, a federal prisoner files a petition for a writ of certiorari with the
U.S. Supreme Court, the conviction becomes final when the Supreme Court either
denies certiorari or issues a decision on the merits. See Washington v. United States,
243 F.3d 1299, 1300 (11th Cir. 2001). Second, if the federal prisoner does not file
a timely certiorari petition after disposition of her direct appeal, the conviction
becomes final on the date on which the prisoner’s time for filing such a petition
expires, which is 90 days after the entry of judgment on direct appeal. See Clay v.
United States, 537 U.S. 522, 532, 123 S. Ct. 1072, 1079, 155 L. Ed. 2d 88 (2003).
Here, neither exception applies because Ramirez did not file a direct appeal of her
conviction.
For federal prisoners, the time for filing a direct appeal expires ten days after
the written judgment of conviction is entered on the criminal docket. See Fed. R.
App. P. 4(b)(1)(A)(i), (6). Neither of the recognized exceptions to the general rule
that, for § 2255 statute of limitations purposes, a judgment of conviction becomes
final when the time for filing a direct appeal expires, applies here. Ramirez’s
conviction became final on May 12, 2003, and, therefore, her § 2255 motion, which
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was filed on July 28, 2004, was untimely. Accordingly, the district court did not err
by dismissing Ramirez’s § 2255 motion as time-barred.
AFFIRMED.
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