[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 01-14830 AUGUST 5, 2003
________________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 01-00014-CV-WDO-7
ROBERT JOHNSON, JR.,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
_________________________
(August 5, 2003)
Before BLACK, RONEY and STAPLETON*, Circuit Judges.
BLACK, Circuit Judge:
*
Honorable Walter K. Stapleton, United States Circuit Judge for the Third Circuit, sitting
by designation.
This case allows us to clarify the time limits in cases where career offenders
indirectly attack their federal sentences by first collaterally attacking their prior state
convictions. Federal prisoner Robert Johnson brought such an indirect attack on his
federal sentence, and he now appeals the district court’s denial of his § 2255 petition
as untimely. We issued a certificate of appealability on the following question:
Whether the district court correctly determined that appellant’s motion
to vacate, filed pursuant to 28 U.S.C. § 2255, was untimely under the
one-year statute of limitations provision in the Antiterrorism and
Effective Death Penalty Act of 1996.
We now conclude Appellant’s indirect attack on his federal sentence was untimely,
and we therefore affirm.
I. BACKGROUND
Between 1983 and 1994, Appellant pled guilty to several state criminal
charges. In 1994, he was indicted as one of five co-defendants on federal drug
conspiracy charges, and he pled guilty. A pre-sentence investigation report
recommended classifying him as a career offender based on his prior state
convictions. Initially, Appellant objected to being classed as a career offender
without explaining the basis for his objection. At his sentencing hearing, however,
counsel for Appellant advised the district court that Appellant wished to waive all of
2
his objections to the pre-sentence investigation report. Appellant was sentenced as
a career offender and received 188 months’ imprisonment.
Appellant then filed a direct appeal, contending his prior state convictions were
obtained in violation of his constitutional right to counsel, and he therefore should not
have been sentenced as a career offender. On December 22, 1995, we affirmed
Appellant’s sentence. Our unpublished order included the following caveat in a
footnote: “We note in passing that, should appellant obtain at some future date the
vacation of the state court conviction[s] in question because they were obtained in
violation of his constitutional rights, he could petition the district court under 28
U.S.C. § 2255 for the relief he now asks us to provide.” United States v. Johnson,
No. 94–9402 (11th Cir. Dec. 22, 1995). Appellant sought certiorari from the
Supreme Court of the United States, but the Supreme Court denied his petition on
April 22, 1996. Johnson v. United States, 517 U.S. 1162, 116 S. Ct. 1559 (April 22,
1996) (mem.).
Just over one year later, on April 25, 1997, Appellant filed a motion in the
district court to extend the time to file a § 2255 petition. The district court ruled that
Appellant’s motion was untimely under § 2255 ¶ 6(1). The district court did
acknowledge the possibility that exists in every habeas case, namely, that something
might transpire that would permit Appellant to take advantage of one of the later
3
accrual dates under § 2255 ¶ 6. It therefore denied Appellant’s motion without
prejudice.
On February 6, 1998, Appellant filed a state habeas petition challenging all of
his prior state convictions on the ground that he had not validly waived his right to
counsel in those proceedings. On October 24, 2000, the state court vacated
Appellant’s prior convictions. Appellant then filed the present § 2255 petition on
February 13, 2001, asking the district court to vacate his sentence because he no
longer qualified as a career offender. On August 1, 2001, the district court denied the
§ 2255 petition as untimely. We granted a certificate of appealability, and this appeal
followed.1
II. DISCUSSION
As this case involves an indirect challenge to a federal sentence via a collateral
attack on prior state convictions, some background on the law of such challenges is
helpful.
First, in Custis v. United States, 511 U.S. 485, 114 S. Ct. 1732 (1994), the
Supreme Court held that, during his sentencing proceeding, a federal prisoner could
not attack the validity of his prior convictions that raised his maximum sentence
under the Armed Career Criminal Act, 18 U.S.C. § 924(e); the only exception to this
1
We subsequently appointed counsel to represent Appellant for this appeal.
4
rule is for prior convictions based on a deprivation of the right to counsel under
Gideon v. Wainwright. See Custis, 511 U.S. at 496; 114 S. Ct. at 1738.
Second, federal prisoners generally cannot attack prior convictions which
enhanced their federal sentences in a § 2255 proceeding challenging the validity of
their federal sentence. Daniels v. United States, 532 U.S. 374, 376, 121 S. Ct. 1578,
1580 (2001); see also Lackawanna County District Attorney v. Cross, 532 U.S. 394,
403–04, 121 S. Ct. 1567, 1574 (2001) (reaching same conclusion for § 2254). If a
prior conviction used to enhance a federal sentence is no longer itself open to direct
or collateral attack, the defendant is generally without recourse. Daniels, 532 U.S.
at 382, 121 S. Ct. at 1583.
Following Custis, many Circuits including our own have authorized indirect
attacks on federal sentences; a defendant may seek to reopen his federal sentencing
pursuant to § 2255 if he has successfully attacked a prior state conviction used to
enhance his federal sentence. United States v. Walker, 198 F.3d 811, 813 (11th Cir.
1999) (per curiam) (citing cases). The effect of these rules has been to redirect
challenges to federal sentences from federal courts to state courts, where court
records may have been destroyed and where state executive officials often have no
interest in defending a conviction for which the defendant has already served his
sentence.
5
With this background in mind, we turn to Appellant’s arguments on appeal.
A. Statute of Limitations
Appellant first argues his § 2255 petition, filed February 13, 2001, was timely
under 28 U.S.C. § 2255 ¶ 6(4). That section provides as follows:
A 1-year period of limitation shall apply to a motion under this
section. The limitation period shall run from the latest of—
....
(4) the date on which the facts supporting the claim or claims
presented could have been discovered through the exercise of due
diligence.
28 U.S.C. § 2255 ¶ 6. Appellant’s argument is straightforward: the single “fact”
supporting the claim in his § 2255 petition is the vacatur of his prior state
convictions; absent those state convictions, Appellant should not have been sentenced
as a career offender, and his federal sentence should be vacated. Appellant contends
the “fact” supporting his § 2255 claim—the vacatur of his prior state
convictions—could not have been discovered until October 24, 2000, the date on
which the state court entered its order. He therefore reasons his § 2255 petition, filed
on February 13, 2001, was within one year of October 24, 2000, and thus within the
AEDPA statute of limitations.
6
The question we must answer is whether the vacatur of a state conviction
constitutes a “fact” within the meaning of § 2255 ¶ 6(4). Ordinarily, a federal
prisoner must file his § 2255 petition within one year of the date on which his
judgment of conviction becomes final.2 Because an indirect collateral attack is
predicated on a successful challenge to prior state convictions used to enhance the
federal sentence, it is at least plausible to argue that a petitioner has one year from the
date his prior state convictions were set aside, under § 2255 ¶ 6(4).
Common sense, however, dictates that we distinguish legal propositions and
results from the “facts” referred to in § 2255. A factual proposition is typically
something capable in principle of falsification (or possibly even verification) by some
empirical inquiry, while a legal proposition is identified by consulting some
authoritative legal source. If we are asked whether Appellant’s prior state convictions
have been vacated, we would consult an authoritative legal source: the records of
decisions of the state court where Appellant collaterally attacked those convictions.
On the other hand, if we are asked whether Appellant waived his right to counsel
before pleading guilty to the state charges, we would need to make an empirical
2
AEDPA’s statute of limitations applies somewhat differently to a petitioner, like
Appellant, whose conviction became final prior to the effective date of AEDPA. Like all other
circuits to have considered the issue, we allow such petitioners a one-year grace period until
April 23, 1997, to file a § 2255 petition. See Goodman v. United States, 151 F.3d 1335, 1337
(11th Cir. 1998).
7
inquiry into the matter, for example by reading the extant records of Appellant’s plea
hearings.3 Put another way, the vacatur of prior state convictions is a court action
obtained at the behest of a federal prisoner, not “discovered” by him. Brackett v.
United States, 270 F.3d 60, 68 (1st Cir. 2001). Applying the common sense
distinction between the factual and the legal to § 2255 ¶ 6(4), we conclude the vacatur
of Appellant’s prior state convictions is not a “fact” from which the one-year statute
of limitations may run.
This common sense reading of the phrase “facts supporting the claim or
claims” is bolstered by comparing that accrual date with the other accrual dates in
§ 2255. Section 2255 ¶ 6(1) refers to the date a judgment becomes final, and § 2255
¶ 6(3) refers to the date a right was initially recognized by the Supreme Court. The
use of the term “facts” in § 2255 ¶ 6(4) is in contrast to those other subsection’s use
of “judgments” and “rights,” two legal results distinct from historical facts. See
Brackett, 270 F.3d at 68–69. It follows that the state court’s vacatur of Appellant’s
prior convictions is not a “fact” within the meaning of § 2255 ¶ 6(4).
3
Of course, the passage of time may make an empirical inquiry difficult or impossible.
See Lackawanna County, 532 U.S. at 403, 121 S. Ct. at 1574 (“As time passes, and certainly
once a state sentence has been served to completion, the likelihood that trial records will be
retained by the local courts and will be accessible for review diminishes substantially.”). The
possible harm from delay further bolsters our narrower interpretation of AEDPA’s statute of
limitations.
8
The interpretation of § 2255 ¶ 6(4) urged by Appellant is also inconsistent with
the parallel habeas provision that applies to state prisoners, § 2244(d)(1). Under
§ 2244(d)(1)(D), the one-year limitation period runs from “the date on which the
factual predicate of the claim or claims presented could have been discovered through
the exercise of due diligence.” Were we to adopt Appellant’s interpretation of § 2255
and apply it to the parallel provision in § 2244, we would render redundant the word
“factual” in § 2244, because all such predicates would be functionally “factual” in
nature.
Others of our sister Circuits have interpreted “factual predicate” in § 2244 to
mean historical facts, not court rulings or legal consequences. See Hasan v. Galaza,
254 F.3d 1150, 1154 & n.3 (9th Cir. 2001); Owens v. Boyd, 235 F.3d 356, 359 (7th
Cir. 2000); Ybanez v. Johnson, 204 F.3d 645, 646 (5th Cir. 2000) (per curiam)
(characterizing as an “extraordinary proposition” the argument that “the factual
predicate of their claim consists neither of evidence nor events that happened at trial
but in the state court’s ruling on their constitutional claims”). As the Supreme Court
commonly interprets § 2254 and § 2255 in light of each other, see Lackawanna
County, 532 U.S. at 402, 121 S. Ct. at 1573, we interpret the limitations period of
§ 2255 consistently with the limitations period of § 2244. See Brackett, 270 F.3d at
69 (“Because § 2254 (habeas corpus from state convictions) and § 2255 (post-
9
conviction relief from federal convictions) are analogous to one another, the way the
state habeas provisions are interpreted should be used to interpret § 2255(4).”).
Finally, Appellant’s interpretation of § 2255 ¶ 6(4) is contrary to the clear
legislative purpose of AEDPA. It is generally accepted that one of the principal
functions of AEDPA was to ensure a greater degree of finality for convictions. See
Duncan v. Walker, 533 U.S. 167, 178, 121 S. Ct. 2120, 2127 (2001); Williams v.
Taylor, 529 U.S. 420, 436, 120 S. Ct. 1479, 1490 (2000); Jones v. United States, 304
F.3d 1035, 1039 (11th Cir. 2002) (“A fundamental purpose for the AEDPA was to
establish finality in post-conviction proceedings.”); Brackett, 270 F.3d at 69 (“[O]ne
of the signal purposes animating AEDPA is the desire of Congress to achieve finality
in criminal cases, both federal and state.”). Given the other substantial grounds for
interpreting § 2255 ¶ 6(4) as we do, we cannot accept an alternative interpretation that
would also run directly counter to the general congressional intent behind AEDPA
and indefinitely extend the opportunity for post-conviction challenges.
Our view thus accords with that of the First Circuit. See Brackett, 270 F.3d at
68.4 In Brackett, the petitioner pled guilty to federal criminal charges in July 1997,
and he was sentenced as a career offender based on two prior state convictions. Id.
at 62 His federal sentence became final on March 12, 1998. Id. On January 3, 2000,
4
We have previously cited Brackett approvingly. See Jones, 304 F.3d at 1039.
10
he filed motions in state court to vacate his prior state convictions on the ground that
he was denied effective assistance of counsel. Id. at 63. The state prosecutor’s office
agreed to the motions, and his prior state convictions were vacated without any
judicial finding of a constitutional violation. Id. On December 18, 2000, the
petitioner then filed a § 2255 petition to set aside his federal sentence. Id. at 62. Like
Appellant, he claimed that his § 2255 petition was within one year of the vacatur of
his state convictions, so that under § 2255 ¶ 6(4), his petition was timely. Id. at 64.
The First Circuit disagreed, concluding “the operative date under § 2255(4) is not the
date the state conviction was vacated, but rather the date on which the defendant
learned, or with due diligence should have learned, the facts supporting his claim to
vacate the state conviction.” Id. at 68.
We recognize that the Fourth Circuit has recently disagreed with Brackett, see
United States v. Gadsen, 332 F.3d 224 (4th Cir. 2003), but we respectfully differ with
our sister circuit’s interpretation of § 2255 ¶ 6(4).5 In Gadsen, the petitioner pled no
contest to a South Carolina assault charge on February 27, 1997. Id. at 225. On
December 3, 1997, he was convicted in federal court of two federal crimes, and based
5
As we explain infra, Part II.B, we would reach the same result as the Fourth Circuit in
Gadsen on the facts as they appeared in that case, but we would do so on the basis of equitable
tolling, not statutory construction. On the equitable tolling issue, however, Appellant’s case is
materially different from Gadsen.
11
in part on his February 1997 state conviction, was sentenced as a career offender. Id.
On January 7, 1998—less than one year after his state conviction, merely a month
after his federal conviction, and well before his federal conviction became final
following appeal on June 1, 1999—the petitioner filed a petition in South Carolina
state court for post-conviction relief from his state conviction. Id. On December 20,
1999, the South Carolina court granted his application for post-conviction relief, and
the South Carolina Supreme Court declined to review that decision on January 10,
2001. Id. at 225–26. With this final order vacating his state conviction in hand, the
petitioner filed a § 2255 petition on December 17, 2001, seeking to vacate his federal
sentence on the ground that he was no longer a career offender. Id. at 226 The
district court, however, dismissed his § 2255 petition as untimely. Id.
On appeal, the Fourth Circuit rejected Brackett’s interpretation of
§ 2255 ¶ 6(4), treating the South Carolina court’s vacatur of the petitioner’s state
conviction as a “fact” within the meaning of that section. In particular, the Fourth
Circuit relied upon a passage of the Supreme Court’s opinion in Daniels in which the
Court acknowledged that “after an enhanced federal sentence has been imposed . . . ,
the person sentenced may pursue any channels of direct or collateral review still
available to challenge his prior convictions.” Id. at 228 (quoting Daniels, 532 U.S.
at 382, 121 S. Ct. at 1583). The Fourth Circuit reasoned that, if it did not interpret
12
§ 2255 ¶ 6(4) liberally, “we would be punishing Gadsen and other litigants like him
for having faithfully followed these instructions [from Daniels].” Id.
We think the Fourth Circuit reads the language of Daniels for much more than
it is worth. To be sure, “[t]he entire point of Custis and Daniels was that litigants
should not bypass state courts to litigate the facts underlying their state convictions
during challenges to a federal sentencing determination.” Id. But as the First Circuit
aptly put it in Brackett, Custis and Daniels answer the question of where a federal
prisoner may bring an attack on a prior state conviction in order to mount an indirect
attack on a federal sentence, while the question in this case (as in Brackett and
Gadsen) is when that indirect attack may be brought. See Brackett, 270 F.3d at 66.
The language of Daniels on which the Fourth Circuit relies merely outlines the
procedure that a federal prisoner must follow to bring an indirect attack on his federal
sentence. The “when” question was not present in Daniels, so the Supreme Court did
not address it and the relevant passage of Daniels does not speak to the time limits
that apply. The Fourth Circuit reads the Supreme Court’s silence on this issue as
dictating one interpretation of § 2255 ¶ 6(4) when it does no such thing. Cf. Barnhart
13
v. Walton, 535 U.S. 212, ___, 122 S. Ct. 1265, 1270 (2002) (“[S]ilence, after all,
normally creates ambiguity. It does not resolve it.”).6
Thus, we hold with the First Circuit and contra the Fourth Circuit that the
purported “fact” of a state court’s vacatur of a federal prisoner’s prior state
convictions is not a “fact supporting the claim or claims” under § 2255 ¶ 6(4) from
which AEDPA’s statute of limitation will run. In this case, Appellant knew all of the
facts supporting his challenge to his state convictions before his federal conviction
became final. On direct appeal, he attempted to argue his prior state convictions had
been obtained in violation of his right to counsel, and it is probable that this was the
unstated basis for his initial objection to the pre-sentence investigation report that
Appellant withdrew at his sentencing hearing. Appellant was therefore aware of all
the relevant operative facts before his conviction became final. Absent some basis
for equitable tolling, discussed infra, he had to file his § 2255 motion within the one-
year grace period following AEDPA’s enactment, or by April 23, 1997. Appellant
6
We do not mean to suggest that the “when” question is entirely irrelevant to the “where”
question the Supreme Court answered in Daniels. Daniels would make little sense if, in many
ordinary cases, a petitioner seeking to make an indirect attack would find himself permanently
shut out of federal court when he brings his § 2255 petition. As we explain infra, however,
equitable tolling may be available to a petitioner who acts with the requisite diligence in bringing
an indirect attack on his federal sentence. See infra Part II.B. The availability of that equitable
remedy helps to render the procedure outlined in Daniels fair and just.
14
did not file his present § 2255 petition until February 13, 2001, so we conclude his
petition was untimely under AEDPA.
B. Equitable Tolling
Appellant also argues he is entitled to equitable tolling of the AEDPA statute
of limitations. We have held that equitable tolling is appropriate when a prisoner’s
§ 2255 petition is untimely because of extraordinary circumstances that are both
beyond his control and unavoidable even with diligence. Drew v. Dep’t of Corr., 297
F.3d 1278, 1286 (11th Cir. 2002); Sandvik v. United States, 177 F.3d 1269, 1271
(11th Cir. 1999). We have emphasized, however, that equitable tolling applies only
in truly extraordinary circumstances. Jones, 304 F.3d at 1039–40; Drew, 297 F.3d
at 1286. Appellant bears the burden of establishing that he is entitled to this
extraordinary relief. See Helton v. Sec’y for Dep’t of Corr., 259 F.3d 1310, 1313–14
(11th Cir. 2001).
On the facts of this case, Appellant cannot show that the delay in filing his
initial § 2255 petition was the result of extraordinary circumstances that were beyond
his control even with the exercise of due diligence. Appellant was plainly aware of
whatever facts supported his collateral attack on his prior state convictions at the time
his federal sentence became final in 1996. He did not commence his challenge to the
state convictions until February 1998, nearly two years later. Had Appellant been
15
acting with due diligence, he would have attacked his state convictions immediately
after his federal sentence became final, or perhaps even before he was sentenced on
the federal offense. Yet Appellant has not even proffered any explanation or excuse
that might show why the delay in attacking his underlying state convictions was
beyond his control.
By way of comparison, Appellant has even less of a claim for equitable tolling
than the petitioner in Sandvik. In that case, the petitioner’s lawyer mailed his § 2255
petition from Atlanta to the district court in Miami on April 18, 1997. Sandvik, 177
F.3d at 1270. The district court file-stamped the motion on April 25, 1997. Id.
Because the petitioner’s conviction was final prior to the effective date of AEDPA,
his § 2255 motion was due no later than April 23, 1997, in accord with the one-year
grace period following the enactment of AEDPA. Id. Thus, despite counsel’s attempt
to meet the deadline, the petition was untimely. When petitioner argued for equitable
tolling on appeal, we concluded that petitioner’s counsel could have mailed the
petition earlier or used a private delivery service or a private courier to be certain that
it was timely filed. Id. at 1272. As it was not a circumstance beyond petitioner’s
control with the exercise of due diligence, we found no ground for equitable tolling.
Id. Unlike the petitioner in Sandvik, who at least attempted to file a petition within
the one-year grace period, Appellant made no similar attempt to act diligently in this
16
case. Rather, he did not even file the state post-conviction challenges on which his
§ 2255 petition was predicated until nearly two years after his federal conviction
became final, despite knowing the basis for those state challenges at the time of his
conviction. This is therefore hardly an extraordinary case in which petitioner was
unable to meet the deadline through no fault of his own.
Appellant attempts to rescue his argument for equitable tolling by pointing to
his April 25, 1997 motion in federal district court seeking to extend the time to file
his § 2255 petition. Appellant claims the district court’s denial of that motion without
prejudice led him believe that he could still file a § 2255 petition at a later date. Yet
the district court’s order dismissing Appellant’s 1997 motion found it to be untimely
under § 2255 ¶ 6(1), and it only suggested that he could subsequently file a § 2255
petition if he could establish one of the later accrual dates set forth in § 2255 ¶ 6. As
explained supra, however, Appellant cannot come within § 2255 ¶ 6(4) to establish
a later accrual date.
Appellant also points to the footnoted caveat in our opinion affirming his
sentence on direct appeal, claiming the caveat misled him into thinking § 2255 relief
would be available whenever he successfully attacked his state convictions. Nothing
in our caveat suggested that Appellant could take an unlimited time to commence his
17
collateral attack on his state convictions.7 In addition, our opinion affirming his
conviction issued prior to the effective date of AEDPA; the caveat may not have
contemplated the effect of the new AEDPA limitations period. Following the
enactment of AEDPA, Appellant still had the entire one-year grace period within
which to take some action to attack his conviction and sentence, yet he did nothing.
This is the fundamental problem that plagues Appellant’s argument: the long
delay before he commenced his state collateral attacks. Drew presented a somewhat
similar scenario. In that case, the petitioner filed a timely § 2254 petition, which the
district court dismissed without prejudice while ordering the petitioner to first file a
third state motion for post-conviction relief. See Drew, 297 F.3d at 1287. Though
the petitioner complied with the district court’s order, we concluded that equitable
tolling was not warranted in that case in part because the petitioner delayed filing the
state motion. Id. If the timeliness of that petitioner’s initial § 2254 petition did not
justify equitable tolling because of his subsequent delay, it is impossible to find any
justification for equitable tolling in this case, where Appellant’s initial motion was
not even timely in the first place.
7
In this respect, our caveat is like the passage of Daniels that the Fourth Circuit over-
emphasizes; our statement, like the Supreme Court’s statement in Daniels, says nothing about the
applicable time limits for an indirect attack. This is not surprising, since our caveat was
explicitly noted “in passing.” One cannot infer from such a passing statement how the
background statute of limitations would apply to Appellant when he finally got around to
bringing his indirect attack on his federal sentence.
18
The facts of Gadsen are usefully illustrative on this point. The petitioner in
Gadsen collaterally attacked his prior state conviction in state court before his federal
conviction and sentence were even final. Gadsen, 332 F.3d at 225. His state
collateral attack was pending in the South Carolina courts for three years, until he
ultimately prevailed. Id. at 226. If that petitioner were not given the benefit of
equitable tolling, then under our interpretation of § 2255 ¶ 6(4), he would be
precluded from carrying out his indirect attack for no other reason that the state
courts’ delay. Such a result would obviously be unfair. Under our circuit precedents,
however, we would readily conclude the South Carolina courts’ delay in finally
disposing of the petitioner’s state collateral attack amounted to an extraordinary
circumstance beyond the petitioner’s control. And because the petitioner launched
his challenge in the South Carolina state courts before his federal conviction was
final, there can be no doubt as to the petitioner’s diligence in pursuing his claims.
Thus, while we depart from the Fourth Circuit’s opinion on the issue of statutory
interpretation, see supra part II.A, on the facts of Gadsen we would ultimately reach
the same result as our sister circuit by allowing that petitioner equitable tolling.
The facts of the present petition, however, are materially different from those
in Gadsen; the crucial point here is that Appellant did nothing during the one-year
AEDPA grace period to attack his prior state convictions collaterally. Unlike the
19
petitioner in Gadsen, Appellant did not commence his state collateral attack until
almost two years after his federal sentence became final, and then nearly one year
after AEDPA’s one-year grace period expired. Given that delay, we are compelled
to find there are no extraordinary circumstances in Appellant’s case, nor can we
conclude that Appellant acted with appropriate diligence. We cannot allow equitable
tolling of the AEDPA limitations period on the facts of this case.8
III. CONCLUSION
We hold the vacatur of Appellant’s prior state convictions is not a “fact
supporting the claim or claims” within the meaning of 28 U.S.C. § 2255 ¶ 6(4).
Under the statute of limitations that applies to § 2255 petitions, Appellant’s petition
was therefore untimely. Further, we hold Appellant cannot show, on the facts of this
case, that his petition was untimely because of extraordinary circumstances beyond
8
In a final effort to get the benefit of equitable tolling, Appellant claims the denial of
equitable tolling would be unconstitutional suspension of the writ of habeas corpus. We have
already held that the AEDPA limitations periods do not per se constitute a suspension of the writ.
See Tinker v. Moore, 255 F.3d 1331, 1334 (11th Cir. 2001); Wyzykowski v. Dep’t of Corr., 226
F.3d 1213 (11th Cir. 2000). Appellant’s argument therefore fails.
In addition, we do not reach Appellant’s further argument—raised for the first time on
appeal—that the failure to reach the merits of his § 2255 petition would amount to a miscarriage
of justice. Arguments not raised in the district court are waived. Tannenbaum v. United States,
148 F.3d 1262, 1263 (11th Cir. 1998) (per curiam).
20
his control and unavoidable even with the exercise of due diligence. He therefore is
not entitled to equitable tolling.
AFFIRMED.
21
RONEY, Circuit Judge, dissenting:
I respectfully dissent. In my judgment, Johnson’s February 13, 2001 § 2255
petition for writ of habeas corpus should not have been dismissed as untimely
because the one-year statute of limitation on the claim asserted did not begin to run
until October 24, 2000, the date the state court vacated Johnson’s July 5, 1989 state
conviction for distribution of cocaine – one of the two prerequisite state convictions
relied upon by the district court to enhance Johnson’s sentence under the career
offender category of the Sentencing Guidelines.
Contrary to the Court’s opinion, I think a decision of a state court reversing a
state criminal conviction is a “fact” within the meaning of 28 U.S.C. § 2255 ¶ 6(4).
See United States v. Gadsen, 332 F.3d 224, 229 (4th Cir. 2003) (holding that “the
federal statute of limitations begins running when the state court conviction is
conclusively invalidated”); United States v. Hoskie, 144 F. Supp.2d 108, 111 (D.
Conn. 2001) (holding that “the one-year statute of limitations starts to run on the date
the state convictions are vacated, not an earlier date when the defendant discovered
the facts forming the basis for the attack on the state convictions”).
With this Court’s decision and the decision in Brackett v. United States, 270
F.3d 60, 68 (1st Cir. 2001) (holding that “the operative date under § 2255(4) is not
the date the state conviction was vacated, but rather the date on which the defendant
22
learned, or with due diligence should have learned, the facts supporting his claim to
vacate the state conviction”), there is a clear split in the circuits, which at some point
should be resolved by Congress or the Supreme Court. Without question, if the rule
announced in this decision and in Brackett is consistently applied, in some circuits
there will be defendants serving time in federal prison under a federal sentence based
upon conviction of a state crime that the state court has authoritatively held the
defendant unquestionably did not commit, who would be barred from relief, while in
other circuits relief from such imprisonment will be readily available.
The relevant section, 28 U.S.C. § 2255 ¶ 6(4), provides:
A 1-year period of limitation shall apply to a motion under this
section. The limitation period shall run from the latest of—
....
(4) the date on which the facts supporting the claim or claims
presented could have been discovered through the exercise of due
diligence.
As a “fact” within the meaning of this section, it is obviously new and not
previously discoverable because until the state court actually entered the judgment
reversing seven outstanding convictions, including Johnson’s July 5, 1989
conviction, it had yet to happen and therefore, by definition, could not be a fact at all.
See Black’s Law Dictionary 610 (7th ed. 1999) (defining “fact,” “1. Something that
actually exists”); Webster’s Third New International Dictionary 813 (1993) (defining
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“fact,” “1: a thing done”); The American Heritage Dictionary of the English
Language 46 (1975) (defining “fact,” “1. something known with certainty”); Black’s
Law Dictionary 738 (3d ed. 1933) (defining “fact,” “1– a thing done”); see also
United States v. Steele, 147 F.3d 1316, 1318 (11th Cir.1998) (en banc) (“Where the
language Congress chose to express its intent is clear and unambiguous, that is as far
as we go to ascertain its intent because we must presume that Congress said what it
meant and meant what it said.”). Until that date, the fact was that Johnson stood
convicted of those numerous crimes. The fact that he does not now stand convicted
of those crimes clearly supports his claim because: (1) those seven vacated
convictions were relied upon by the sentencing court in one way or another in
deriving Johnson’s total offense level of 25 and a criminal history category of 6; and
(2) only one of the two required convictions relied upon by the district court to
enhance Johnson’s sentence as a career offender was a valid conviction. Without
Johnson’s vacated July 5, 1989 state conviction for distribution of cocaine, the
undeniable fact is that he was not a career offender within the meaning of the
Sentencing Guidelines. See, e.g., United States v. Duty, 302 F.3d 1240, 1241 (11th
Cir. 2002) (noting that a defendant is a “career offender” under the Sentencing
Guidelines if, inter alia, “the defendant has at least two prior felony convictions for
either a crime of violence or a controlled substance offense”); U.S.S.G. § 4B1.1. The
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sentencing court did not rely upon the underlying conduct that resulted in those
convictions, but instead simply relied upon the mere fact that those were valid state
court convictions, as recited in the Presentence Investigation Report (“PSI”).
Johnson’s PSI indicates a total offense level of 25 and a criminal history
category of 6, qualifying him for a sentencing range of 110 to 137 months’
imprisonment. See U.S.S.G. Ch. 5, Pt. A. The district court, however, relied upon
the “facts” of two prior state convictions to boost Johnson into the career offender
category and thus increase his sentence: (1) a July 5, 1989 conviction for distribution
of cocaine; and (2) a November 13, 1989 conviction for sale of cocaine. Utilizing the
career offender enhancement, the district court enhanced the total offense level from
25 to 32 with a criminal history category of 6, qualifying Johnson for a sentencing
range of 151 to 188 months’ imprisonment. See id. § 4B1.1(b). The district court
sentenced Johnson to 188 months’ imprisonment, the highest end of that sentencing
range. See id. Ch. 5, Pt. A.
As a timely petition, the case should be remanded for the district court to
consider Johnson’s claims on the merits. If that petition is granted and a resentencing
is ordered, Johnson may indeed be faced with some new problems.
Johnson’s state petition did not assert that he was innocent of the facts which
supported his conviction, but simply alleged that although he pled guilty in each case,
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the convictions were nonetheless invalid because he did not affirmatively waive his
right to counsel. The state made no genuine attempt to defeat his claim, perhaps
because Johnson had already served the state prison sentences accompanying those
state convictions. This lack of defense to the state petitions is reflected in the state
court’s opinion, which leaves some doubt as to whether Johnson met the Strickland
standard for relief from a claim of ineffective assistance of counsel. See Strickland
v. Washington, 466 U.S. 668, 687 (1984). The state court’s opinion reads as follows:
Petitioner, after being sentenced to an enhanced sentence because
of certain state convictions, filed his Petition for Writ of Habeas Corpus
alleging that his pleas in seven cases in Cook County Superior Court
were not voluntary in that he did not knowingly, intelligently and
voluntarily waive his right to counsel at the hearing on the entry of his
guilty pleas. The cases that were challenged by Petition were numbered
83F-9 [Feb. 11, 1989 – burglary], 88F–32 [Mar. 9, 1988 – conversion],
88M-43 [Mar. 9, 1988 – contempt], 89F-122 [July 5, 1989 –
distribution of cocaine], 90F-383 [Dec. 5, 1990 – theft and violation of
probation], 92F-36 [Mar. 11, 1992 – possession of cocaine] and 93F-148
[April 21, 1993 – possession of cocaine] filed in Cook County Superior
Court.
Petitioner . . . filed copies of the plea petitions that accompanied
the entry of his pleas. These pleas contained questions about his waiver
of the presence and use of an attorney.
The State responded denying the allegations but have not filed
any further transcripts of the hearing which would support their position.
This Court findings that the record in these cases does not show
an affirmative waiver of his right to an attorney. . . .
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IT IS HEREBY ORDERED that Petitioner’s Petition For Writ of
Habeas Corpus is hereby GRANTED and the convictions in the above-
cited cases are hereby reversed.
Regardless of the ground for the decision, this state court judgment reversed
those convictions, and they are no longer valid convictions upon which a sentencing
court could rely. That state court judgment is entitled to the same fact analysis as if
the convictions had been reversed on the basis of irrefutable evidence that a defendant
was in fact innocent of the crimes for which he had been convicted. If the state
court’s vacatur of the seven state convictions came before the sentencing in this case,
it would have been clear error for the court to rely on the fact of conviction. Without
those convictions to rely upon, an analysis of Johnson’s PSI would show: (1) only
three criminal history points derived from Johnson’s November 13, 1989 sale of
cocaine conviction, corresponding to an offense level of 25 and a criminal history
category of 2; and (2) an insufficient number of prior offenses (one) to support a
career offender enhancement.
At the time of sentencing, the PSI properly noted that U.S.S.G. § 4A1.3
provides that a sentencing court may depart upward if “reliable information indicates
that the criminal history category does not adequately reflect the seriousness of the
defendant’s past criminal conduct or the likelihood that the defendant will commit
other crimes.” U.S.S.G. § 4A1.3. This Court has affirmed several circumstances
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where a district court applied an upward departure under § 4A1.3. See, e.g., United
States v. Jones, 289 F.3d 1260 (11th Cir. 2002) (two-level criminal history category
upward departure for a defendant’s prior juvenile offenses and other offenses too
remote to use in calculating a criminal history under the guidelines); United States v.
Hernandez, 160 F.3d 661 (11th Cir. 1998) (one-level criminal history category
upward departure for a defendant’s prior non-criminal misconduct related to the
sentenced offense); United States v. Spraggins, 868 F.2d 1541 (11th Cir. 1989)
(three-level criminal history upward departure for defendant with history of molesting
children, the need to deter such conduct in the future, and to account for defendant’s
older previous crimes); United States v. Dorsey, 888 F.2d 79 (11th Cir. 1989) (upheld
district court’s upward departure to a career offender, even though defendant did not
have two qualifying prior felony convictions under 4B1.1).
Based on the information contained in the PSI, it may well be that a departure
upward would be appropriate, but these are matters not before us at this time. The
sole issue before us is whether Johnson’s § 2255 petition is timely because it was
filed within one year of the Georgia state court’s vacatur of Johnson’s seven prior
state convictions. I would hold that it was timely, would reverse the decision of the
district court to the contrary, and would remand to the district court for consideration
of the petition on its merits.
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