Rossetti v. United States

United States Court of Appeals
For the First Circuit

No. 12-1451

STEPHEN ROSSETTI,

Petitioner, Appellant,

v.

UNITED STATES OF AMERICA,

Respondent, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Richard G. Stearns, U.S. District Judge]

Before

Torruella, Dyk,* and Kayatta,
Circuit Judges.

Derege B. Demissie, with whom Demissie & Church, was on brief,
for appellant.
Aditya Bamzai, Attorney, United States Department of Justice,
with whom Carmen M. Ortiz, United States Attorney, and Joseph F.
Palmer, Attorney, were on brief, for appellee.

December 9, 2014

*
Of the Federal Circuit, sitting by designation
 KAYATTA, Circuit Judge. Stephen Rossetti was convicted

on federal criminal charges arising from a plot to rob an armored

car depot in Eaton, Massachusetts. Having exhausted his direct

appeals, Rossetti now seeks collateral review on a petition for a

writ of habeas corpus, arguing that he was denied his Sixth

Amendment right to counsel and that the district court wrongly

refused to modify his sentence after a state court vacated a prior

state conviction that had been relied upon to increase his federal

sentence. We affirm the district court's denial of Rossetti's

petition.

I. Background

In late 1998, Carmello Merlino and Anthony Romano formed

a plan to rob an armored car depot in Eaton, Massachusetts.1

Shortly thereafter, Merlino recruited two other men, David Turner

and his friend Rossetti. As it turned out, Romano was an FBI

informant who tape-recorded the meetings of the conspirators that

he attended. The conversations recorded on those tapes paint

Rossetti as an enthusiastic participant in the robbery venture. In

eighteen conversations recorded by Romano, Rossetti provided

detailed advice about how to conduct the robbery. He explained how

to secure masks without pulling out hair that could be used to

identify the conspirators, explained how to tie the depot's guards

1
Unless otherwise noted, the background facts set forth here
are not disputed for purposes of this appeal.

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to a pole so that they would choke if they tried to move, advised

that the guards would resist violently, and suggested a way for the

conspirators to remove video surveillance tapes without making

clear that the robbery was an inside job. Rossetti also promised

to provide guns, police scanners, walkie-talkies, body armor, and

a grenade, boasting that he had "all the hardware" needed for the

robbery. Rossetti said that, during the robbery, he would be

"ready at the door watching for anyone to come . . . [c]ause if

they come in I'm taking them down." Finally, he asked to drive one

of the getaway cars, saying that he would "like to drive one of

them [vehicles] in case I gotta . . . smash guys out of the way or

whatever."

On February 6, 1999, the conspirators met at a garage to

finalize details for the robbery, which was planned for the next

day. Romano showed the others a stolen minivan to be used in the

robbery, and Rossetti confirmed that he would bring weapons and

other equipment for the heist. The conspirators planned to meet

again at the garage the next morning. The FBI, in turn, planned to

arrest them when they arrived.

At the appointed hour the next morning, Rossetti drove

with Turner in Rossetti's car toward the garage. FBI agents

testified that Rossetti circled the meeting point in a "counter-

surveillance manner." Instead of stopping at the garage, Rossetti

eventually drove to a parking lot where Turner's car was parked.

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There, they transferred masks, gloves, weapons, bulletproof vests,

and walkie-talkies to Turner's car. Rossetti and Turner then drove

back to the garage, again appearing to check out the area. At that

point, they drove off and, after a brief chase, were stopped and

arrested. The FBI agents retrieved four duffle bags and four ski

masks from the garage, and the other equipment from Turner's car.

Rossetti was eventually convicted on conspiracy and

attempt to affect commerce by robbery in violation of 18 U.S.C.

§ 1951, carrying a grenade and firearms in relation to a crime of

violence in violation of 18 U.S.C. § 924(c), and being a felon in

possession of a grenade and firearms in violation of 18 U.S.C.

§ 922(g)(1). In convicting Rossetti, the jury rejected his

defenses that Romano entrapped Merlino and thereby "vicariously

entrapped" Rossetti, and that Rossetti withdrew from the robbery

plan before he was arrested.

After his conviction, Rossetti was sentenced in

December 2002 to 622 months in prison. In August 2006, we vacated

that sentence in light of United States v. Booker, 543 U.S. 220

(2005). On remand, the district court, in August 2007, resentenced

Rossetti to 622 months. We affirmed that sentence in October 2008.

Rossetti's petition for certiorari was denied in January 2009.

Rossetti v. United States, 555 U.S. 1158 (2009). Meanwhile, in

August 2008, Rossetti filed a motion in Massachusetts state court

for a new trial on a prior state conviction. In January 2010,

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Rossetti filed a petition for a writ of habeas corpus pursuant to

28 U.S.C. § 2255, arguing that he received ineffective assistance

of counsel in his federal trial, and should therefore be retried.

After the state court vacated his prior conviction in February

2011, he amended his section 2255 petition to add an argument that

the vacatur of his prior state court conviction entitled him to re-

sentencing on counts five and six of his conviction. The district

judge thereafter denied his petition but granted him a certificate

of appealability on the sentencing issue. On appeal, we allowed

his motion to expand the certificate of appealability to encompass

both issues.

II. Analysis

A. Sixth Amendment Claims

Rossetti challenges his counsel's conduct at his trial on

three main grounds, arguing that counsel: (1) wrongly deterred him

from testifying by incorrectly advising him that, if he testified

in his own defense, his testimony would undercut counsel's ability

to suggest to the jury that Rossetti did not go all the way to the

garage as planned because he was withdrawing from the conspiracy;

(2) failed to impeach one of his own witnesses and to procure

expert testimony concerning a cell phone call relevant to a

government theory for why he may not have stopped at the garage the

morning of the arrest; and (3) had a conflict of interest that

denied Rossetti his Sixth Amendment rights. The district court

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rejected these arguments, each of which Rossetti properly

preserved,2 and so "we review the district court's legal

determinations de novo and the court's findings of fact for clear

error." Parsley v. United States, 604 F.3d 667, 671 (1st Cir.

2010).

1. Counsel's advice not to testify

Rossetti's claim that he suffered prejudice as a result

of erroneous advice by counsel centers on his defense that he

withdrew from the conspiracy at the last moment before the aborted

robbery. Rossetti claims that his counsel told him that his

testimony would undercut counsel's ability to argue withdrawal, and

for that reason Rossetti opted not to testify. He argues now that

that advice was wrong, and that because he refrained from

testifying, he lost a chance to support his withdrawal defense, and

otherwise to enhance his case.

To prove such a claim based on the failings of defense

counsel, Rossetti must demonstrate both: "(1) that 'counsel's

performance was deficient,' meaning that 'counsel made errors so

serious that counsel was not functioning as the "counsel"

guaranteed the defendant by the Sixth Amendment'; and (2) 'that the

2
Rossetti did not raise these arguments in his direct appeal,
but "[a] defendant can assert ineffective-assistance claims for the
first time in a collateral motion made under 28 U.S.C. § 2255 and,
in fact, that is the preferred procedure." United States v. Huard,
342 F. App'x 640, 642 (unpublished) (1st Cir. 2009) (citing
Massaro v. United States, 538 U.S. 500, 504-05, 509 (2003)).

-6-
deficient performance prejudiced the defense.'" United States v.

Valerio, 676 F.3d 237, 246 (1st Cir. 2012) (quoting Strickland v.

Washington, 466 U.S. 668, 687 (1984)). In assessing the adequacy

of appointed counsel, we "indulge a strong presumption that

counsel's conduct falls within the wide range of reasonable

professional assistance," see Strickland, 466 U.S. at 689, finding

deficiency only "where, given the facts known [to counsel] at the

time, counsel's choice was so patently unreasonable that no

competent attorney would have made it." Knight v. Spencer, 447

F.3d 6, 15 (1st Cir. 2006) (internal quotation marks omitted).

And, to establish prejudice, a defendant must demonstrate "a

reasonable probability that, but for counsel's unprofessional

errors, the result of the proceeding would have been different."

Strickland, 466 U.S. at 694. This review presents "mixed questions

of law and fact" in which factual questions predominate and we

therefore review largely for clear error. See Turner v. United

States, 699 F.3d 578, 584 (1st Cir. 2012).3 We begin our review by

summarizing the testimony that Rossetti says he would have given.

First, Rossetti says that he only participated in the

conspiracy out of fear that Merlino would kill him if he did not

participate, and that his detailed advice to the other participants

in the conspiracy about how to conduct the robbery was really an

3
The district judge who heard Rossetti's petition also
presided over his trial and so was in a good position to assess
Rossetti's claims.

-7-
unsuccessful ploy to dissuade them from conducting it by

demonstrating its difficulties.

Second, Rossetti states that after the meeting of the

conspirators on the eve of the planned robbery he learned that two

of them were heroin addicts, and that he then decided to withdraw

from the conspiracy because of his "strong aversion to heroin

addicts" who "can't be trusted." He claims that he communicated

this decision to Turner, who passed along the news to Merlino, who,

despite Rossetti's professed fears, eventually took the news well,

and, instead of killing Rossetti, agreed to Rossetti's request for

a face-to-face meeting the next day.

Third, Rossetti claims he visited his mother's house to

deal with an electrical problem after telling Turner of his

withdrawal. While he was there he says he told her that he had

backed out of a business deal.

Finally, he says that the next morning when the FBI

observed him circling the area of the garage, he claims he was

actually searching for the minivan of which he had agreed to help

Merlino dispose. Having failed to find the minivan, he then

proceeded toward a restaurant where he had agreed to meet Merlino,

coincidentally again passing the garage on his way there.

Being familiar with the entire record, the district court

concluded that this withdrawal claim was "chimerical." Rossetti v.

United States, CIV.A. 10-10151-RGS, 2012 WL 37177, at *4 (D. Mass.

-8-
Jan. 9, 2012). We agree. The notion that this enthusiastic and

seasoned conspirator who claims to have been fearful of his

colleagues withdrew the night before the robbery and then

nevertheless showed up at the appointed site and time carrying (as

promised) weapons, masks, gloves and other tools for the heist

makes no sense at all. Rossetti's argument that he was simply on

his way (at that precise time) to dispose of the minivan is itself

a hard sell. More importantly, as Rossetti's trial counsel

recognized, to dispose of the stolen minivan was to help the

conspirators, not to abandon them to their own devices. Indeed,

Rossetti's affidavit acknowledges that because the minivan's

ignition switch was missing and "the steering wheel column housing

was broken with many pieces missing" the minivan might have

hindered successful execution of the robbery because "if it was

seen by an outsider there was a high risk that they would think the

minivan was stolen."

Because Rossetti does not dispute on appeal that he

joined the conspiracy, "the law presumes that the conspiracy

continued, and that he continued to participate, unless he makes

'an affirmative showing' that . . . he withdrew from it." United

States v. Mangual-Santiago, 562 F.3d 411, 422 (1st Cir. 2009)

(quoting United States v. Piper, 298 F.3d 47, 53 (1st Cir. 2002)).

To succeed at a withdrawal defense Rossetti would have had to

demonstrate that he "act[ed] affirmatively either to defeat or

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disavow the purposes of the conspiracy" which he could have done

either by making "a full confession to authorities," which he does

not contend he did, or "communicati[ng] . . . to his

co-conspirators that he ha[d] abandoned the enterprise and its

goals." United States v. Ciresi, 697 F.3d 19, 27 (1st Cir. 2012)

(internal quotation marks and citations omitted). It seems quite

reasonable to think that testimony that he was helping his fellow

conspirators dispose of a stolen vehicle, the presence of which

might cause suspicion, would have foreclosed any attempt by counsel

to argue that the failure to pull into the garage evidenced

withdrawal from the conspiracy. Nor would evidence from his mother

that he said he was backing out of a business deal have established

the relevant disavowal, even if believed, in view of Rossetti's

actual conduct.4

In short, taking the stand to spin such a fanciful yarn

would not in our view have created a reasonable probability that

the jury would buy it. Indeed (and perhaps this is what defense

counsel had in mind), such testimony could have harmed Rossetti's

standing before the jury. Moreover, by testifying, Rossetti would

have opened himself up to cross-examination about his criminal

history and every detail of his participation in the robbery.

4
It also follows from this that, once Rossetti decided not to
testify, trial counsel was not ineffective for failing to ask
Rossetti's mother about Rossetti's comment when she testified
because her answer, as Rossetti concedes, would have been
inadmissible hearsay.

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 Rossetti alternatively argues that his testimony would

have supported his entrapment defense. Once a defendant

demonstrates that he is entitled to an entrapment instruction, the

government may defeat that defense by "prov[ing] beyond a

reasonable doubt either that there was no undue government pressure

or trickery or that the defendant was predisposed." United States

v. LaFreniere, 236 F.3d 41, 44-45 (1st Cir. 2001). Rossetti argues

that his testimony would have been relevant on each prong. He

would have testified that Merlino, with the government's knowledge,

coerced him to join the conspiracy once he knew of it. And he says

he would have demonstrated he was not predisposed to commit the

robbery by testifying that he had not committed any crimes since

the 1980s and was "living a law-abiding, addiction free, and family

oriented life."5

Both arguments fail to fit the evidence in a way that

would have made a different result reasonably probable. The

recordings of Merlino consistently belied any such approach, much

5
Factors which may be considered when determining whether
someone was predisposed to commit a crime include:

(1) the character or reputation of the defendant; (2)
whether the initial suggestion of criminal activity was
made by the Government; (3) whether the defendant was
engaged in the criminal activity for profit; (4) whether
the defendant showed reluctance to commit the offense,
which was overcome by the governmental persuasion; and
(5) the nature of the inducement or persuasion offered by
the Government.

United States v. Gamache, 156 F.3d 1, 9-10 (1st Cir. 1998).

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less one known to the government. As we said in connection with

Turner's appeal, "Merlino made it clear that he was making an offer

to participate which Turner could readily decline. There was no

hint of threats or any other undue pressure--simply the opportunity

for a big score." Turner, 501 F.3d at 71. Rossetti's attempt to

sell a story that Merlino–"off tape only"--dealt differently with

him faced the further problem that the numerous tapes that did

exist evidence that the gang had an enthusiastic participant in

Rossetti. His claim that he was acting in an effort to eventually

convince everyone that the robbery was too hard simply does not fit

either the script he was writing or the fact that he was supplying

important resources for accomplishing the robbery. As for the

matter of predisposition, the prior record of a robbery conviction,

even though dated, combined with the tape recordings and the acts

on the morning of the planned robbery made a long shot out of any

effort to convince a jury that he had no predisposition to commit

the crime. The withdrawal story Rossetti now says he wanted to

tell, moreover, directly undercuts his claim that he was so fearful

of Merlino that he felt compelled to commit the crime.

Lastly, Rossetti seems to argue that because counsel's

allegedly erroneous advice caused him to surrender his right to

testify, he might still prevail even if he cannot satisfy

Strickland's requirement that any error have been reasonably likely

to account for the verdict. None of our authority supports this

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claim. See Palmer v. Hendricks, 592 F.3d 386, 397 (3d Cir. 2010)

("[E]very authority we are aware of that has addressed the matter

of counsel's failure to advise a client of the right to testify has

done so under Strickland's two-prong framework."); Owens v. United

States, 483 F.3d 48, 57–59 (1st Cir. 2007) (applying Strickland

where counsel allegedly failed to inform the defendant of his right

to testify); Cannon v. Mullin, 383 F.3d 1152, 1170 (10th Cir. 2004)

("Other courts also treat [right to testify] claims as ineffective

assistance claims. . . . We agree that Mr. Cannon's claim is best

treated as an ineffective-assistance-of-counsel claim and analyze

it as such.") (citing United States v. Teague, 953 F.2d 1525, 1534

(11th Cir. 1992) (en banc)).

Finally, we do concede that the logic of the foregoing

actually helps Rossetti's argument in one sense: the palpable

weakness of the withdrawal and entrapment defenses undercut the

notion that preserving those defenses was a reason not to testify.

While we nevertheless tend to see the wisdom in Rossetti's not

testifying given the cross-exam he would have faced based on his

record and the tapes, we need not defend counsel's advice in order

to reject Rossetti's Strickland argument. Simply put, the proposed

testimony would have fallen far short of breathing enough plausible

life into those defenses to have created a reasonable possibility

that they would have succeeded. Rossetti's argument regarding the

advice not to testify therefore fails.

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 2. The cell phone evidence

Rossetti next argues that his counsel wrongly failed to

impeach Rossetti's own witness when she gave erroneous testimony

that was actually favorable to Rossetti's theory about his

motivation on the day of his arrest. When arrested, Rossetti was

carrying a cellphone that the government suggested at trial he

could have used to call his co-conspirators. Such a call could

explain why he did not go to the garage where he had agreed to meet

them but instead surveilled and continued past it. At trial,

Rossetti called a witness who testified that the company that

employed Rossetti, and that paid for the phone, was charged for no

calls on Rossetti's phone that morning, thereby counteracting the

government's theory.

The witness also testified, erroneously according to

Rossetti, that the company would have been billed for a call even

if Rossetti had called someone else but the call had not been

answered. The jury, Rossetti claims, "knew from their collective

common sense that Rossetti was conveying erroneous information

regarding cellular billing practices and, hence, found Rossetti's

defense less credible." If cellular phone billing practices were

such common knowledge, however, it seems unlikely that the

government attorney, Rossetti, his counsel, and the witness would

all have failed to notice the witness's mistake. Moreover, what

Rossetti claims was a mistake actually benefitted Rossetti by

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negating any suggestion that he even tried to call his co-

conspirators. This mistake was unchallenged on cross or in closing

by the prosecutor, and one can only imagine what Rossetti would

have said had his counsel flagged it. In short, Rossetti has not

come close to demonstrating that his counsel was ineffective by

failing to impeach his own witness.

Alternatively, Rossetti argues that his trial counsel

should have retained an expert who might have been able to

ascertain that the phone was never used the morning of the arrest,

and that the FBI may have tampered with it. And Rossetti complains

that the district court should have allowed him to do discovery to

explore this theory. The simple answer is that whether Rossetti

(who often advised his fellows on the need to be careful) learned

by a phone call on the morning of the planned robbery that

something was amiss, or instead suspected there was a problem for

other reasons, was not important to the government's case. And, as

we have explained, Rossetti's actual undisputed conduct rendered

his withdrawal defense too farfetched to serve as the basis for

showing a causal connection between counsel's alleged failures and

prejudice to Rossetti.

3. Counsel's purported conflict of interest

Rossetti's next argument is even more convoluted. He

speculates that the FBI wanted to entrap him in order to gain

leverage over his uncle, said by Rossetti to be a person of

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interest in the investigation of the theft of artworks from the

Gardner Museum. To uncover this motive, Rossetti wanted his trial

counsel to interview and call as a witness a suspected FBI

informant named Richard Chicofsky who, Rossetti suspected, might

supply or point to evidence supporting the hypothesized entrapment

motive. Rossetti's trial counsel, says Rossetti, failed to do this

because, according to Rossetti, counsel had a business relationship

with Chicofsky (a deal to split reward money offered by the Gardner

Museum).

The simple answer to this argument is that, as we

observed in deciding the appeal from Turner's conviction, the FBI's

possible motive to entrap a person is of no moment in a case such

as this one where there is predisposition and no evidence of

improper inducement. United States v. Turner, 501 F.3d 59, 74 (1st

Cir. 2007). Therefore, even if trial counsel had a conflict that

caused him not to pursue the Gardner Museum motive for entrapment

theory, the "failure" to pursue a defense that could not have

succeeded could have caused no prejudice. Adding belt-to-

suspenders, the district court found that "there was no likelihood

that Chicofsky would have testified" because, among other reasons,

when called in proceedings related to Turner's conviction, he

invoked his Fifth Amendment right not to testify. See Rossetti,

2012 WL 37177, at *6.

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 In sum, we cannot say that there is a reasonable

probability that the perceived shortcomings of Rossetti's counsel

-- either individually or cumulatively -- affected the result in

this case.6 As already discussed, Rossetti's withdrawal theory is

implausible, and so too is the notion that any of the tactics

Rossetti now says his counsel should have adopted would have

strengthened his defense.

B. Rossetti's Challenge to his Sentence

Rossetti seeks to modify his sentence based on his

successful vacatur of a prior state conviction for breaking and

entering. That state conviction was one of three prior convictions

the district court considered when calculating Rossetti's sentence.

See Rossetti, 2012 WL 37177, at *6. "[A] defendant given a

sentence enhanced for a prior conviction is entitled to a reduction

if the earlier conviction is vacated," so long as he seeks re-

sentencing in a timely manner. Johnson v. United States, 544 U.S.

6
Similarly, the district court did not err in denying
Rossetti an evidentiary hearing on his ineffective assistance
claims. The district court assumed that Rossetti would have
testified as he claimed, and found that it "would have added
nothing by way of support for [his] withdrawal theory," which in
any event was a "chimerical fantasy." Rossetti, 2012 WL 37177, at
*4. As for the conflict of interest allegation, the district court
found that Chicofsky "had nothing to contribute to Rossetti's
defense." Id. at *6. See United States v. Rodriguez, 929 F.2d
747, 749-50 (1st Cir. 1991) (stating that "a [section 2255]
petition can be dismissed without a[n] [evidentiary] hearing if the
petitioner's allegations . . . 'are contradicted by the record,
inherently incredible, or conclusions rather than statements of
fact'") (quoting Dziurgot v. Luther, 897 F.2d 1222, 1225 (1st Cir.
1990)).

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295, 303 (2005); see also Daniels v. United States, 532 U.S. 374,

382 (2001) ("If [a] challenge to [an] underlying conviction is

successful, the defendant may then apply for reopening of his

federal sentence."). At all times relevant to this opinion, the

timeliness of Rossetti's petition was governed by 28 U.S.C. §

2255(f) which now (in materially unchanged structure) reads as

follows:

(f) A 1-year period of limitation shall apply to a motion
under this section. The limitation period shall run from
the latest of--

(1) the date on which the judgment of conviction becomes
final;

(2) the date on which the impediment to making a motion
created by governmental action in violation of the
Constitution or laws of the United States is removed, if
the movant was prevented from making a motion by such
governmental action;

(3) the date on which the right asserted was initially
recognized by the Supreme Court, if that right has been
newly recognized by the Supreme Court and made
retroactively applicable to cases on collateral review;
or

(4) the date on which the facts supporting the claim or
claims presented could have been discovered through the
exercise of due diligence.

Rossetti's judgment of conviction in his federal case

became final on January 26, 2009, the day on which his petition for

certiorari was denied. In re Smith, 436 F.3d 9, 10 (1st Cir.

2006). Because Rossetti's state court conviction was vacated in

February 2011, he did not seek to amend his habeas petition to add

an argument that his sentence should therefore be modified until

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April 2011, so he cannot rely on § 2255(f)(1). Rossetti does not

seek to rely on subsections (f)(2) or (f)(3), so that leaves him to

rely on subsection (f)(4) by arguing that he could not have

discovered the facts underlying his motion until after April, 2010.

To satisfy subsection (f)(4)'s requirement that he could

not "have discovered the facts through reasonable diligence" until

less than a year before the petition was filed a petitioner must

show that he acted with "due diligence" to set a prior conviction

aside once he was "in a position to realize that he has an interest

in challenging the prior conviction." Johnson, 544 U.S. at 308-09.

In Johnson, the Supreme Court ruled that such a realization

triggering the duty to act with diligence occurs upon the entry of

a judgment in the federal criminal proceeding. Id. The Court

reasoned that when judgment is entered a defendant surely knows

that the prior state court conviction may be used to justify a

sentence longer than the sentence that might be imposed but for the

prior conviction. Id.

Rossetti's original judgment of conviction in federal

court was entered on the docket on November 27, 2002.7 He did not

make a filing in state court seeking to set aside his conviction

until August 2008. Under Johnson, his effort to rely on

§ 2255(f)(4) to justify a belated motion to reopen his sentence

7
In a criminal case, a judgment includes, and therefore comes
after, "the plea, the jury verdict or the court's findings, the
adjudication, and the sentence." Fed. R. Crim. P. 32(k)(1).

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should therefore fail. Rossetti nevertheless raises three

arguments why this should not be so in his case.

First, Rossetti argues that the relevant "judgment" is

not his original sentence, but instead the new judgment entered by

the district court after we vacated his original sentence pursuant

to Booker. This argument, however, is again precluded by Johnson,

which considered and rejected, as delay-inducing, the argument that

due diligence should not be required until a defendant's final

appeal is concluded. Id. at 309. Here, Rossetti is arguing, in

essence, that, whether one need diligently seek vacatur of a

conviction as soon as one's federal judgment is entered remains

unknown until the appeal is eventually decided, retroactively

triggering such a duty only if the decision is to affirm. Such a

rule cannot be squared with Johnson's desire to identify a

"particular time" when the diligence requirement begins. Id. at

308.8

Second, Rossetti argues that, even if the diligence

requirement normally would have begun at the time of his first

judgment, he was not then in "a position to realize that he ha[d]

an interest in challenging the prior conviction," id., because,

prior to Johnson, this circuit's rule was that vacatur of a

conviction was not a "fact" under (f)(4), see Brackett v. United

8
This is not a case in which only the final judgment vested
the prior conviction with materiality.

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States, 270 F.3d 60, 68 (1st Cir. 2001). While we doubt that the

logic of this argument is correct,9 the simple answer is that even

if the diligence requirement did not begin until Johnson was

decided in April 2005, Rossetti still waited three and a half years

(until August 2008) to challenge his conviction, longer than the

delay the Court found to be non-diligent in Johnson.

Moreover, even if Rossetti reasonably believed that

(f)(4) was not open to him at the time of judgment, at that time,

and for eight years thereafter, he still had an "interest in

challenging the prior conviction" because, if he had done so

successfully within one year of his final cert petition being

denied in January 2009, he would have been able to timely file a

motion to vacate his sentence under § 2255(f)(1), regardless of how

§ 2255(f)(4) was interpreted. In this respect, any incorrect

belief that (f)(4) was unavailable gave even more reason to act

promptly once he was sentenced in December 2002. He therefore had

an "interest in challenging the prior conviction" even before

Johnson was decided.

9
The Supreme Court was fully aware of the interpretation that
the First Circuit (and others) had made of section (f)(4) and did
not suggest that the limitation period should start to run later in
those circuits. See Johnson, 544 U.S. at 302 (citing Brackett, 270
F.3d at 60). The Eleventh Circuit, where Johnson brought his case,
had not taken a position on whether vacatur of a conviction could
be a fact under § 2255(f)(4) prior to his case, see Johnson v.
United States, 340 F.3d 1219, 1222-26 (11th Cir. 2003), and yet the
Court did not consider this at all when determining whether Johnson
had exercised due diligence. See Johnson, 544 U.S. at 311.

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 Third, reaching again into his quiver of

Strickland arguments, Rossetti argues that he raised the

possibility of seeking to vacate his conviction to his counsel but

that his counsel advised him he was unlikely to succeed. Johnson,

however, itself rejected the argument that a defendant's lack of

diligence in seeking to vacate his state conviction could be

excused by the fact that he was unrepresented, reasoning that the

Court had "never accepted pro se representation alone or procedural

ignorance as an excuse for prolonged inattention when a statute's

clear policy calls for promptness." Johnson, 544 U.S. at 311. We

cannot see how procedural ignorance by counsel would call for a

different balance. Cf. Trapp v. Spencer, 479 F.3d 53, 60 (1st Cir.

2007) (rejecting the argument that attorney error normally

justifies equitable tolling of the limitations period on habeas

petitions where the error is not "egregious" and the sentence is

not death).

For these reasons we conclude that the district court

correctly determined that Rossetti's petition for resentencing was

untimely.

III. Conclusion

For the foregoing reasons, the judgment of the district

court is affirmed.

So ordered.

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