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 *1229meaning of 28 U.S.C. § 2255 ¶ 6(4). See United States v. Gadsen, 882 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 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 “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 *1230convictions for either a crime of violence or a controlled substance offense”); U.S.S.G. § 4B1.1. The 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. § 4Bl.l(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, 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, 104 S.Ct. 2052, 80 L.Ed.2d 674 (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 plea petitions 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 hearings which would support their position.
This Court finds that the record in these cases does not show an affirmative waiver of his right to an attorney....
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.
*1231Regardless 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 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.