On Appeal from the United States District Court for the District of Delaware. (D.C. No. 99-cr-00033-4). District Judge: The Honorable Joseph J. Farnan, Jr.
The opinion of the court was delivered by: Nygaard, Circuit Judge
BEFORE: SCIRICA, Chief Judge, and NYGAARD, Circuit Judge., and YOHN,*fn1 District Judge.
This appeal presents a question of appellate procedure. Specifically, it implicates our practice of permitting petitions for rehearing en banc to be filed "out of time" and recalling our mandate so that these petitions may be considered by the full court. The issues here can be reduced to this inquiry: Does an untimely petition for rehearing en banc become timely when we permit its filing "out of time," thus starting the clock anew for habeas petitions? We conclude that it does, and hence, will reverse the District Court.
Appellant Parris Wall was convicted of various drug offenses in the United States District Court for the District of Delaware. He was originally sentenced to 180 months' imprisonment and five years of supervised release. On direct appeal, we affirmed his conviction, but vacated the term of supervised release and remanded for re-sentencing. On June 21, 2001, the District Court re-sentenced Wall to three years' supervised release. Wall appealed again. The Government filed a Motion for Summary Affirmance which we granted on September 27, 2001. The Clerk of Court issued our mandate in the case on October 19, 2001. On December 15, 2001, before expiration of the ninety-day time period to file a petition for certiorari, Wall filed a document entitled "Motion for rehearing en banc or consideration of direct review" which our clerk's office appropriately construed as a motion for leave to file a petition for rehearing out of time.
On April 1, 2002, our late colleague, Judge Carol Mansmann granted the motion to file a petition for rehearing out of time and ordered that the petition be circulated to the full court. This was in full accord with our common practice of showing leniency to an aggrieved party who wants the full court to rethink a panel's order and who files a petition within a reasonable time.*fn2 On April 3, 2002, the Clerk's Office issued an order recalling our mandate of October 19, 2001. On April 22, 2002, the Petition for Rehearing was denied. On July 1, 2002, Wall filed a petition for writ of habeas corpus in the District Court. After receiving notice required by United States v. Miller, 197 F.3d 644 (3d Cir. 1999), Wall withdrew his petition.
On January 15, 2003, Wall filed a second § 2255 petition. The Government argued that this petition was untimely. The District Court agreed and dismissed it.
In determining that Wall's petition for habeas corpus relief was untimely, the District Court correctly noted that § 2255 requires petitions to be filed within one year after the date on which the direct appeal from the criminal conviction becomes final. The District Court reasoned that Wall's petition for rehearing was not timely when originally filed and opined that the ninety-day period in which he could seek certiorari began on September 27, 2001, the date we summarily affirmed his conviction and re-calculated sentence. Using this date as a beginning reference, the District Court concluded that Wall was required to have his habeas petition filed no later than December 26, 2002. Hence, it dismissed his habeas petition, which was filed on January 15, 2003.*fn3
It is not disputed that following the normal course of events, Wall's petition for rehearing en banc was filed out of time. Fed. R. App. P. 40(1) provides that petitions for rehearing in civil cases where the United States is a party (as here) must be filed within 45 days after the entry of judgment. We entered judgment in his case on September 27, 2001 and he filed a petition for rehearing on December 15, 2001 -- clearly longer than forty-five days. Nonetheless, as is our traditional practice, we deemed his petition as a ...