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REVISED APRIL 29, 2002
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-20425
THOMAS M. GIESBERG,
Petitioner - Appellant,
v.
JANIE COCKRELL,
Director, Texas Department of Criminal Justice,
Institutional Division
Respondent - Appellee,
Appeal from the United States District Court
for the Southern District of Texas
April 23, 2002
Before JOLLY, JONES and BARKSDALE, Circuit Judges.
PER CURIAM:
Thomas M. Giesberg, a Texas inmate convicted of murder,
appeals the district court's order dismissing his application for
habeas corpus relief. The district court determined that
Giesberg's habeas petition was time-barred by the Antiterrorism and
Effective Death Penalty Act of 1996 ("AEDPA"). This court granted
Giesberg a Certificate of Appealability ("COA") to determine
whether Giesberg's petition for rehearing of the denial of
certiorari filed with the Supreme Court tolled AEDPA's one-year

limitations period. We hold that Giesberg's petition for rehearing
of the denial of certiorari did not toll the limitations period,
and AFFIRM the order of the district court.
BACKGROUND
On April 28, 1995, a Texas jury found Giesberg guilty of
murder. Giesberg was sentenced to sixty-five years in prison.
Giesberg's conviction was affirmed on direct appeal by the First
Court of Appeals of Texas. Giesberg v. State, 945 S.W.2d 120 (Tex.
App. - Houston [1st Dist.], pet. granted). The Texas Court of
Criminal Appeals affirmed Giesberg's conviction on September 30,
1998. Giesberg v. State, 984 S.W.2d 245 (Tex. Crim. App. 1998).
Giesberg's petition for a writ of certiorari was denied by the
Supreme Court on February 22, 1999. Giesberg v. Texas, 525 U.S.
1147, 119 S.Ct. 1044 (1999). Giesberg filed a timely petition for
rehearing of the denial of certiorari. This petition for rehearing
was denied by the Supreme Court on April 19, 1999. Giesberg v.
Texas, 526 U.S. 1082, 119 S.Ct. 1490.
On April 18, 2000, Giesberg filed a petition for a writ
of habeas corpus pursuant to 28 U.S.C. § 2254 in the United States
District Court for the Southern District of Texas. The State of
Texas moved to dismiss Giesberg's petition as time-barred by AEDPA,
28 U.S.C. § 2244(d)(1)(A). The district court, relying on this
court's decision in United States v. Thomas, 203 F.3d 350 (5th Cir.
2001), determined that Giesberg's state conviction was rendered
2

final on the date the Supreme Court denied certiorari.
Accordingly, the district court dismissed Giesberg's petition
because it was filed more than one year after his conviction was
final. See 28 U.S.C. § 2244(d). The district court denied
Giesberg's request for a COA.
This court granted Giesberg a COA to determine whether
AEDPA's one-year limitations period was tolled by the petition for
rehearing of the denial of certiorari timely filed by Giesberg in
the Supreme Court.1
DISCUSSION
An order dismissing a habeas application as time-barred
by AEDPA is subject to de novo review. Johnson v. Cain, 215 F.3d
489, 494 (5th Cir. 2000). Giesberg's habeas petition, governed by
the provisions of AEDPA, had to be filed within one year of "the
date on which the judgment became final by the conclusion of direct
review or the expiration of the time for seeking such review." 28
U.S.C. § 2244(d)(1)(A). Giesberg argues that his conviction was
not final until the Supreme Court denied his petition for rehearing
of the denial of certiorari. The State of Texas argues that
Giesberg's conviction was final on the date the Supreme Court
denied Giesberg's petition for writ of certiorari.
1
A COA should be granted on a procedural issue under AEDPA when the
petitioner shows, "at least, that jurists of reason would find it debatable
whether the petition states a valid claim of the denial of a constitutional right
and that jurists of reason would find it debatable whether the district court was
correct in its procedural ruling." Slack v. McDaniel, 529 U.S. 473, 484-85
(2000). Both parts of this test must be fulfilled before a COA should be issued.
3

This court has held that a federal conviction becomes
final for purposes of AEDPA's one-year limitation period when the
Supreme Court denies the petition for writ of certiorari. United
States v. Thomas, 203 F.3d 350, 356 (5th Cir. 2000). The
petitioners in Thomas argued that their convictions were not final
until the expiration of the twenty-five-day period for filing a
petition for rehearing of the denial of certiorari. This court
rejected this argument because "[t]he plain text of Supreme Court
Rule 16.3 provides that an order denying certiorari review takes
legal effect and is not suspended pending any application for
rehearing." Id.
Giesberg seeks to distinguish Thomas for two reasons.
First, he argues that Thomas only addressed the provisions of §
2255 applicable to federal prisoners seeking habeas relief, whereas
he is a state prisoner. Second, Giesberg contends that, unlike the
circumstances of this case, the petitioners in Thomas had not
actually filed a petition for reconsideration for denial of
certiorari.
Giesberg's first argument is without merit. The one-year
limitation provision applicable to a federal prisoner's § 2255
motion for relief is "virtually identical" to the provision
applicable to a state prisoner's § 2254 motion. Flanagan v.
Johnson, 154 F.3d 196, 200 n.2 (5th Cir. 1998) (citing United
States v. Flores, 135 F.3d 1000, 1002 n.7 (5th Cir. 1998)).
4

Despite a minor difference in the statutory language that
determines when the limitation period begins to run for § 2254 and
§ 2255 motions,2 the key to both provisions is the finality of the
underlying judgment. Although Thomas addressed only the provisions
of § 2255(1), its reasoning regarding the finality of a denial of
certiorari is applicable to Giesberg's state conviction.
Giesberg next contends that Thomas is distinguishable
because the petitioners in Thomas had not filed petitions for
rehearing of the denial of certiorari. While this is correct,
nevertheless, Thomas's reasoning appears dispositive against
Giesberg. Thomas rested its holding on Supreme Court Rule 16.3,
which states:
Whenever the Court denies a petition for a writ of
certiorari, the Clerk will prepare, sign, and enter an
order to that effect and will notify forthwith counsel of
record and the court whose judgment was sought to be
reviewed. The order of denial will not be suspended
pending disposition of a petition for rehearing except by
order of the Court or a Justice.
Sup. Ct. R. 16.3 (emphasis added). The court reasoned that Rule
16.3 makes clear that "an order denying a petition for writ of
certiorari is effective immediately upon issuance, absent
extraordinary intervention by the Supreme Court or a Justice of the
2
Section 2244(d)(1)(A), the limitation period applicable to a state
prisoner's motion for habeas relief, provides that the limitation period begins
running on "the date on which the judgment became final by the conclusion of
direct review or the expiration of the time for seeking such review." Section
2255(1), applicable to a federal prisoner's motion for habeas relief, provides
that the limitations period begins running on "the date on which the judgment of
conviction becomes final."
5

Supreme Court." Thomas, 203 F.3d at 355. In the present case, no
member of the Supreme Court suspended the denial of Giesberg's
petition for certiorari; Giesberg's conviction accordingly was
final on the date certiorari was denied.
This conclusion accords with the decisions of other
circuits. See United States v. Segers, 271 F.3d 181, 186 n.4 (4th
Cir. 2001) (explaining that filing of petition for rehearing of
denial of certiorari does not affect finality of denial of
certiorari for purposes of AEDPA's one-year limitation period);
United States v. Willis, 202 F.3d 1279, 1281 (10th Cir. 2000)
("After the Supreme Court has denied a petition for writ of
certiorari, neither the filing of a petition for rehearing from the
denial of certiorari, nor the expiration of the time in which such
a petition could be filed delays the commencement of the one-year
limitation period.").3
CONCLUSION
For the foregoing reasons, Giesberg's conviction was
final, for purposes of AEDPA's one-year limitations period, when
his petition for certiorari was denied by the Supreme Court. His
motion for habeas corpus relief was time-barred by § 2244(d)(1)(A).
The judgment dismissing the habeas petition is therefore AFFIRMED.
3
Giesberg also asserts equitable tolling based on his delayed receipt
of information inside the prison about the Thomas decision, supra. This
contention lacks merit. Felder v. Johnson, 204 F.3d 168, 171-72 (5th Cir.),
cert. denied, 531 U.S. 1035 (2000).
6