Petitioner-Appellee Wendell Locke, a state prisoner, filed a petition for a writ of habeas corpus on August 24, 1998. The government responded with a motion to dismiss on the ground that Mr. Locke’s petition was time barred pursuant to 28 U.S.C. § 2244(d)(1)(A). After the motion was denied, the government asked the district court to stay the order; it also asked permission to file an immediate appeal. The district court granted both requests. The government then sought this court’s permission to file an immediate appeal, which was also granted. Consequently, we now consider the government’s contention that Mr. Locke’s petition was not timely filed. We affirm for the rеasons set forth below.
I. PROCEDURE AND BACKGROUND
Mr. Locke was convicted in Oklahoma County District Court of one count of first-degree murder and two counts of use of a vehicle to facilitate the intentional discharge of a fireаrm. Mr. Locke subsequently brought an appeal before the Oklahoma Court of Criminal Appeals — the court of last resort in the state — which affirmed the conviction on August 1, 1997.
See generally Locke v. State,
On August 24, 1998, Mr. Locke filed a petition for a writ of habeas corpus in federal court. The
government
movеd to dismiss on the basis that the petition was time barred under § 2244(d)(1)(A), but the district court denied the motion. The district court noted that, in prior cases, this court had addressed the issue of timeliness and that, in those cases, inconsistent results had been reached.
See
Aplt’s Br., Ex. C, at 2 (district court order, filed Sept. 29, 1999) [hereinafter Dist. Ct. Order], Among those cases, however, there was only one published opinion,
Rhine v. Boone,
II. DISCUSSION
As a preliminary matter, Mr. Locke argues that this interlocutory appeal is improper because the government is seeking “to enlarg[e] its own rights or lessen[ ] the rights of its adversary absent a cross appeal.” Aple’s Br. at 4. We find this argument to be without merit, and so the оnly issue remaining is whether Mr. Locke’s petition was timely filed pursuant to § 2244(d)(1)(A). Because the parties do
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not dispute the facts, we have before us a purely legal question, and thus we review the matter de novo.
See Gibson v. Klinger,
Section 2244(d)(1)(A) provides that
[a] 1-year period of limitation shall apply to an application for a writ of habeas corpus.... The limitation period shall run from the ... the date on which the judgment became final by the conclusion of direсt review or the expiration of the time for seeking such review.
28 U.S.C. § 2244(d)(1)(A) (emphasis added). According to the district court, Mr. Locke had until October 29, 1998, to file his petition. The district court arrived at this date in the following manner: (1) on August 1, 1997, the Oklahoma Court of Criminal Appeals, the state сourt of last resort, affirmed Mr. Locke’s conviction; (2) ninety days later — i.e., on October 30, 1997' — Mr. Locke’s time to seek direct review before the United States Supreme Court expired, see U.S.Sup.Ct.R. 13; (3) Mr. Locke’s conviction was thereby final on October 30, 1997, at least for the purposes of § 2244(d)(1)(A); and (4) consequently, the one-year limitation period began to run on October 30,1997.
The government argues that, as a matter of law, the district court еrred in determining the day by which Mr. Locke’s petition had to be filed. More specifically, it argues that the district court improperly calculated the date on which Mr. Locke’s conviction was final by including the ninety dаys during which Mr. Locke could have filed (but did not) a petition for a writ of certiorari with the United States Supreme Court. According to the government, Mr. Locke’s conviction was final on August 1, 1997, the day that Mr. Locke had exhausted his state remedies. In short, the government’s contention is that “direct review” as used in § 2244(d)(1)(A) only means review within the state court system; review by the United States Supreme Court is not counted. The government grounds its argument on two premises: (1) The Antiterrorism and Effective Death Penalty Act (“AEDPA”) was enacted to accelerate the habeas process; and (2) AEDPA is focused on the exhaustion of state remedies.
We are not persuaded by the government’s argument. We note first that, in
Rhine v. Boone,
Of course, this statement in
Rhine
was technically dicta, the holding of the case dealing with § 2244(d)(2) instead of § 2244(d)(1)(A),
2
and therefore we are not
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bound by it. Still, we find the statement to be instructive; at the very least, it cannot be ignored, еspecially in light of
Habteselassie, see id.,
and further in light of
United States v. Burch,
Finally, we note that the circuit courts that have explicitly ruled on the issue of timeliness under § 2244(d)(1)(A) are in accord with
Rhine;
that is, all have held that “the period of ‘direct review’ in 28 U.S.C. § 2244(d)(1)(A) includes the period within which a petitioner can file a petition for a writ of certiorari from the United States Supreme Court, whether or not the petitioner' actually files such a petition.”
Bowen v. Roe,
We agree with the reasoning employed by our sister circuits, in particular, that used by the Eighth Circuit in Smith. In Smith, the respondent argued, as the government does here, that a conviction becomes final on the day state court review is concluded; in other words, “direct review” as used in § 2244(d)(1)(A) does not include review by the United States Supreme Court. The Eighth Circuit rejected the respondent’s argument, stating the following:
Review of a state criminal cоnviction by the Supreme Court of the United States is considered direct review of the conviction. Moreover, there is a well-established body of federal case law that interprets the phrase ‘final by the сonclusion of direct review’ to include an opportunity to seek certiorari. When Congress elects to use terminology that has become commonplace in court decisions in a particular field of law, the rules of statutory construction call for us to define the statute’s terms in harmony with that accepted judicial meaning. Thus, a chance to solicit review of consti *1273 tutional issues before the United States Supreme Court, after the end of state court proceedings, properly falls within the meaning of ‘final by the conclusion of direct review.’
Smith,
To conclude, we hold that Mr. Locke’s petition was timely filed with the district court pursuant to § 2244(d)(1)(A): Under the statute, a petitioner’s conviction is not final and the one-year limitation period for filing a federal habeas petition does not begin to run until — following a decision by the statе court of last resort — “after the United States Supreme Court has denied review, or, if no petition for certiorari is filed, after the time for filing a petition for certiorari with the Supreme Court has passed.”
Rhine,
Accordingly, we AFFIRM the decision of the district court.'
Notes
. Although Rhine discusses the limitation period with respect to § 2244(d)(1)(A), which deals with direct review, its actual focus is § 2244(d)(2), which deals with post-conviction or collateral review. See 28 U.S.C. § 2244(d)(2) ("The time during which a properly filed application for State post-conviction or оther collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.”).
Notably, § 2244(d)(2) does
not
take into account the time during which a petition fоr certiorari to the United States Supreme Court can be filed.
See Rhine,
. We note that, in his response brief, Mr. Locke argues "[i]n the alternative” that "conclusion of direct review” as used in § 2244(d)(1)(A) ■‘‘means the date of the return of the state court of last resort’s mandate from the lower court to the state court of last resort.” Aple’s Br. at 3. We need not reach this alternative argument, having ruled in Mr. Locke's favor on his primary argument.
. It is not clear to what extent these unpublished opinions are contrary because the factual discussion in each is limited.