United States v. Williams

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-21087

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

LELAND EARL WILLIAMS, also known as Robert Randle, also known as Tee Lee, also known as Timothy Houston,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. H-1-CV-2758 H-95-CR-303-4 -------------------- December 5, 2002

Before JONES, STEWART and DENNIS, Circuit Judges.

PER CURIAM:*

Leland Earl Williams, federal prisoner #10623-077, seeks a

certificate of appealability (COA) to appeal the dismissal of his

28 U.S.C. § 2255 motion as time-barred in which he challenged his

drug possession and drug conspiracy convictions. In his 28

U.S.C. § 2255 motion, Williams argued that trial and appellate

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. O R D E R No. 01-21087 - 2 -

counsel were ineffective for a variety of reasons. The district

court summarily dismissed the motion.

On limited remand from this court, the district court judge

determined that Williams’ 28 U.S.C. § 2255 motion was time-barred

because there is a split in the circuits regarding whether a

conviction is final at the expiration of the ninety-day period

for seeking a writ of certiorari in the United States Supreme

Court. The district court’s finding that Williams’ 28 U.S.C.

§ 2255 motion was time-barred is erroneous because this circuit

has previously determined that a conviction becomes final when

the ninety-day period for seeking writ of certiorari expires.

See United States v. Gamble, 208 F. 3d 536, 537 (5th Cir. 2000);

see also Wicker v. McCotter, 798 F.2d 155, 157-58 (5th Cir.

1986)(capital habeas case)(holding that this court must follow

circuit precedent even when the Supreme Court grants writ of

certiorari on an issue, unless the Supreme Court says otherwise).

Because the district court’s dismissal of Williams’ 28

U.S.C. § 2255 motion as time-barred was erroneous, a COA is

GRANTED on this issue. The district court’s denial of 28 U.S.C.

§ 2255 relief on the basis of the motion being time-barred is

VACATED, and the case is REMANDED for a determination regarding

the merits of Williams’ 28 U.S.C. § 2255 motion.

COA GRANTED; VACATED AND REMANDED