Opinion
CIVIL 00-1655 (PG), (CRIMINAL 95-0216 (PG)).
Decided December 6, 2000.
Abraham Serrano Osorio, pro se, for Petitioner Atlanta, GA.
Antonio R. Bazan, Assist. U.S. Attorney, San Juan, Puerto Rico.
OPINION AND ORDER
On May 25, 2000, petitioner Serrano Osorio filed his first 2255 petition. (Docket No. 1.) On July 3, 2000, the matter regarding his 2255 petition was referred to me for a report and recommendation. After I ordered the United States Attorney to respond to petitioner's motion (Docket No. 3), he did so on August 21, 2000. (Docket No. 4.) Subsequently, petitioner filed a request to amend his 2255 petition or, in the alternative, to withdraw it without prejudice. (Docket No. 5.) The United States Attorney opposed petitioner's motion to amend alleging it was untimely filed. (Docket No. 7.)
To determine if a 2255 petition is time barred, one must first look at the language of the statute. In its pertinent part, section 2255 reads as follows:
A 1-year period of limitation shall apply to a motion under this section. The limitation shall run from the latest of —
(1) the date on which the judgment of conviction becomes final[.]28 U.S.C. § 2255, ¶ 6.
A conviction is not final as long as the defendant can appeal either the conviction or the sentence imposed upon him. Griffith v. Kentucky, 479 U.S. 314, 321 (1987); United States v. Colvin, 204 F.3d 1221, 1224 (9th Cir. 2000). Accordingly, for purposes of a petition under section 2255, the judgment is considered to be "final" when the Supreme Court denies a petition for a writ of certiorari, and it is from that date that the limitations period starts to run. See Griffith v. Kentucky, 479 U.S. at 321 n. 6; United States v. Marcello, 212 F.3d 1005, 1008 (7th Cir. 2000); United States v. Thomas, 203 F.3d 350, 352-53 (5th Cir. 2000) (and cases therein cited).
In the instant case, petitioner filed a petition for a writ of certiorari in the United States Supreme Court (No. 99-7268). His petition was denied on May 30, 2000. Serrano Osorio v. United States, 120 S.Ct. 2202 (2000). Therefore, since his conviction became "final" on May 30, 2000, petitioner has until May 30, 2001 to file a motion under section 2255. Consequently there is nothing that impedes amending the 2255 petition.
In view of the above, petitioner's motion to amend is GRANTED.