Anthony Aron v. United States

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
MAY 13, 2002
No. 99-14518 THOMAS K. KAHN
________________________ CLERK

D. C. Docket No. 998-6860 CV-NCR

ANTHONY ARON,

Petitioner-Appellant,

versus

UNITED STATES OF AMERICA,

Respondent-Appellee.

________________________

Appeal from the United States District Court
for the Southern District of Florida
_________________________

(May 13, 2002)

Before CARNES, BARKETT and KRAVITCH, Circuit Judges.
BARKETT, Circuit Judge:

Anthony Aron, a federal prisoner, appeals the dismissal as untimely of his

motion to vacate his sentence pursuant to 28 U.S.C. § 2255. Aron argues that his

motion was timely under 28 U.S.C. § 2255(4) because he exercised due diligence

in discovering the facts supporting his claim, and his motion was filed within one

year of the date on which he discovered those facts. Alternatively, he argues that

the district court erred in refusing to hold an evidentiary hearing on his claim to

have exercised due diligence. We reverse and remand.

BACKGROUND

Aron was convicted of conspiracy to possess cocaine with the intent to

distribute and of possession of cocaine with the intent to distribute in violation of

18 U.S.C. §§ 841(a)(1) and 846. He was sentenced to 151 months’ incarceration,

with a five-year term of supervised release. Aron filed a direct appeal from his

conviction, arguing that the trial court should have granted a mistrial based upon

prosecutorial misconduct, that it gave improper jury instructions, and that it erred

by declining to give a requested jury instruction. We affirmed his conviction on

September 23, 1994. United States v. Aron, 37 F.3d 636 (11th Cir. 1994) (Table).

On July 4, 1998, Aron filed a motion pursuant to 28 U.S.C. § 2255 to vacate,

set aside, or correct his sentence. His motion raised three claims of ineffective

2
assistance of appellate counsel, based on his attorney’s failure to appeal the term of

his sentence and the sufficiency of the evidence at trial, and on an alleged conflict

of interest created by the attorney’s representation of both Aron and his co-

defendant on appeal. A final claim challenged the legality of his conviction and

sentence on the ground that 21 U.S.C. §§ 841 and 846 were not published in the

Federal Register as mandated by Congress.

The government responded to the motion by arguing that it was untimely

under the one-year period of limitation imposed by the Anti-Terrorism and

Effective Death Penalty Act of 1996 (AEDPA). Aron answered that, in spite of

numerous letters and telephone calls to his appellate attorney, he did not receive a

copy of the brief that had been filed in his direct appeal until September 4, 1997,

which was when he learned of his attorney’s failure to appeal his sentence. Since

his § 2255 motion was filed within one year of that date, he argued that it was

timely under § 2255(4), which allows petitioners to file within one year of “the

date on which the facts supporting the claim or claims presented could have been

discovered through the exercise of due diligence.”

The magistrate recommended denying Aron’s motion as untimely, finding

that he had offered no proof of any due diligence on his part after discovering that

his conviction was affirmed. Aron then filed sworn objections to the magistrate’s

3
report and recommendation, listing his efforts to obtain information about his

appeal. The government did not present evidence contradicting Aron’s assertions.

The district court entered an order adopting the magistrate’s report and

recommendation, and we granted a certificate of appealability on the question

whether the district court erred in its determination that Aron’s motion was barred

by the one-year period of limitation.

DISCUSSION

The AEDPA amended 28 U.S.C. § 2255 to impose a one-year “period of

limitation” for filing a motion to vacate, set aside or correct a sentence. The

limitation period runs 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.

4
28 U.S.C. § 2255. Aron argues that his motion was timely under § 2255(4)

because it was filed within a year of the date he received a copy of the brief that

was filed in his direct appeal, and he exercised due diligence in discovering the

failure of his attorney to appeal his sentence by that date.

To our knowledge, only one court has previously discussed the standard of

review of a district court’s decision concerning due diligence in the context of §

2255. See Montenegro v. United States, 248 F.3d 585 (7th Cir. 2001), partially

overruled on other grounds by Ashley v. United States, 266 F.3d 671 (7th Cir.

2001). Drawing an analogy to Rule 52(a) of the Federal Rules of Civil Procedure,

which “assigns to the trial judge the responsibility of determining not only the

historical events that are relevant to how the case should be decided but also the

legal significance of those events,” id. at 591 (quoting Mucha v. King, 792 F.2d

602, 605 (7th Cir. 1986)), the Seventh Circuit reasoned that “due diligence” is a

legal characterization—like negligence, possession, ratification, and principal place

of business—and should be reviewed for clear error. Id. We agree. In the context

of a motion pursuant to § 2255(4), we will therefore review for clear error a district

court’s finding with regard to whether the petitioner exercised due diligence.

The government emphasizes that the one-year limitation period of § 2255(4)

begins to run when the facts could have been discovered through the exercise of

5
due diligence, not when they were actually discovered. This is indeed the language

of the statute; the beginning of the one-year period is triggered by a date that is not

necessarily related to a petitioner’s actual efforts or actual discovery of the relevant

facts. Of course, if a court finds that a petitioner exercised due diligence, then the

one-year limitation period would begin to run on the date the petitioner actually

discovered the relevant facts, because the dates of actual and possible discovery

would be identical. But if the court finds that the petitioner did not exercise due

diligence, the statute does not preclude the possibility that the petitioner’s motion

could still be timely under § 2255(4). For example, if the court concludes that,

with the exercise of due diligence, the relevant facts could have been discovered

two months earlier than the petitioner (who it finds did not exercise due diligence)

actually discovered them, then the motion would still be timely if filed within ten

months of the date of actual discovery. Nonetheless, the court should begin the

timeliness inquiry under § 2255(4) by determining whether the petitioner exercised

due diligence because, as previously noted, if he did so, the limitation period would

not begin to run before the date he actually discovered the facts supporting the

claim.1

1
It is only if Aron did not exercise due diligence that we are required to speculate about
the date on which the facts could have been discovered with the exercise of due diligence.
Moreover, since Aron filed his petition within a year of the date of actual discovery, we need not
decide the question of how to apply § 2255(4) when a petitioner’s actual discovery of the

6
 As the government concedes, § 2255(4) does not require the maximum

feasible diligence, but only “due,” or reasonable, diligence. See Wims v. United

States, 225 F.3d 186, 190 n.4 (2d Cir. 2000). Due diligence therefore does not

require a prisoner to undertake repeated exercises in futility or to exhaust every

imaginable option, but rather to make reasonable efforts. Moreover, the due

diligence inquiry is an individualized one that “must take into account the

conditions of confinement and the reality of the prison system.” Montenegro, 248

F.3d at 592; Wims, 255 F.3d at 190-91 (citing Easterwood v. Champion, 213 F.3d

1321, 1323 (10th Cir. 2000)). Aron contends that the deficiencies in his appellate

counsel’s performance did not become known to him until September 4, 1997,

when he received a copy of the brief that had been filed in his appeal. Although he

acknowledges that he received a copy of the opinion affirming his conviction in

1994, the opinion did not indicate which grounds had been raised on appeal, and so

Aron was not aware that his attorney had failed to appeal his sentence, as Aron

claims he had instructed him to do.

In assessing whether Aron’s petition was timely, the magistrate (and the

district court, by adopting the magistrate’s report) assumed that Aron was required

relevant facts precedes the date on which they would have been discovered through the exercise
of due diligence.

7
to show due diligence from the time his conviction became final in 1994.2 We

think this assumption was incorrect, because the law imposed no diligence

requirement on habeas petitioners until AEDPA was enacted on April 24, 1996.

Therefore Aron’s allegations, if true, mean only that he did more than the law

requires.

Before AEDPA was enacted, there was no limitation period for filing a

petition pursuant to § 2255. If prisoners wished to spend more time preparing their

petitions—albeit at the potential cost of suffering a longer period of unlawful

confinement—the law afforded them that opportunity. In reliance upon that law,

many prisoners had not filed within one year, as the subsequently enacted

legislation required. Therefore, in Goodman v. United States, 151 F.3d 1335 (11th

Cir. 1998), we held that the one-year limitation period should start to run from the

date of AEDPA’s enactment, if the conviction being challenged became final

before the enactment date.3 We did not apply the new limitation period to cases in

2
The magistrate wrote: “Aron offers no proof of any due diligence on his part after
discovering that his conviction was affirmed on September 1993 [sic], prior to the filing of this
motion to vacate on July 24, 1998.” Magistrate’s Report and Recommendation at 6 (emphasis
added). Similarly, in its brief to this Court the government also contends that Aron’s allegations
show that following his conviction in 1994, he allowed seventeen months to elapse with no
activity. While we do not believe his allegations show this, even if they did, it would not be
determinative in this case for the reasons we discuss above.
3
We subsequently applied the same rule to the comparable provision for state prisoners, §
2244(d). Wilcox v. Florida Dept. of Corrections, 158 F.3d 1209 (11th Cir. 1998).

8
which the period for filing had expired before the new requirement was enacted

“because ‘[i]t would be unfair and impermissibly retroactive’ to cut off review for

noncompliance with a rule that had not existed when the noncompliance occurred.”

Smith v. Jones, 256 F.3d 1135, 1143 (11th Cir. 2001) (quoting Wilcox, 158 F.3d at

1211, and Goodman, 151 F.3d at 1337). Other circuits reached the same

conclusion. See Duncan v. Walker, 531 U.S. 991, 121 S.Ct. 2120, 2130 (2001)

(Stevens, J., concurring) (“In the context of AEDPA’s 1-year limitations period,

which by its terms runs from ‘the date on which the judgment became final,’ see §

2244(d)(1)(A), the Courts of Appeals have uniformly created a 1-year grace

period, running from the date of AEDPA’s enactment, for prisoners whose state

convictions became final prior to AEDPA.”).

Our holding in Goodman applied to § 105 of AEDPA, which amended §

2255 to include all four dates listed in § 2255(1)–(4). There is no reason to treat §

2255(4) any differently from § 2255(1). Before the enactment of AEDPA on April

24, 1996, Aron was not required to exercise due diligence in discovering new facts

in order for a petition based on those facts to be timely filed. Consequently, “[i]t

would be unfair and impermissibly retroactive,” Goodman, 151 F.3d at 1337, to

require Aron to have exercised due diligence before there was any legal

requirement that he do so. We therefore hold that a petitioner’s failure to exercise

9
due diligence before AEDPA was enacted cannot support a finding that a petition

fails to satisfy the timeliness requirement of § 2255(4).4 Of course, in evaluating

whether a petitioner exercised due diligence after April 24, 1996, a court should

consider any previous actions the petitioner took to assess what it would have been

reasonable for him to do after that date. In this case, for example, Aron’s earlier

efforts may have given him reason to believe that writing to his attorney directly

would be futile, and he therefore approached the court instead. The point is that

Aron cannot be penalized for any lack of diligence before AEDPA’s enactment,

because at that time there was no requirement that he act diligently.

4
We respectfully disagree with the suggestion in the concurring opinion that this holding
is actually dicta. We find the district court’s decision in this case erroneous for two reasons:
first, the court improperly assumed that Aron was required to show diligence from the time his
conviction became final; and second, as we discuss below, Aron’s allegations are such that
section 2255 requires an evidentiary hearing. The fact that either error would be sufficient to
warrant reversal does not mean that future panels are free to treat one of these two findings as
dicta, nor does it mean that the district court on remand may disregard one in favor of the other.
See Richmond Screw Anchor Co. v. United States, 275 U.S. 331, 340 (1929) (“It does not make
a reason given for a conclusion in a case obiter dictum, because it is only one of two reasons for
the same conclusion.”); Johnson v. DeSoto County Bd. Comm’rs., 72 F.3d 1556, 1562 (11th Cir.
1996) (“we are bound by alternative holdings”); McClellan v. Mississippi Power & Light Co.,
545 F.2d 919, 925 n.21 (5th Cir. 1977) (“It has long been settled that all alternative rationales for
a given result have precedential value.”).
The fact that Aron claims to have exercised due diligence from the time his conviction
became final does not make this portion of the opinion dicta. The government denies Aron’s
allegations of diligence (especially regarding the first seventeen months after his conviction
became final), and a pro se petitioner who alleges, in effect, that he did more than the law
requires is not for that reason required to prove that he did so in order to prevail. Satisfying the
requirements of the law will still suffice. Particularly in light of the government’s denials and of
the basis for the district court’s ruling, we see fit to clarify that the law does not require Aron to
prove that he exercised due diligence from the time his conviction became final in 1994 before
we remand for an evidentiary hearing on Aron’s diligence.

10
 Aron claims in his sworn objections to the magistrate’s report that he made

“numerous and persistent efforts” to obtain his appellate documents from his

attorney—in particular, that he “wrote many letters and placed numerous phone

calls” to his attorney’s office, “to no avail.” Aron eventually received from his

attorney a copy of the opinion affirming his appeal, but the opinion did not state

which issues had been raised or ruled upon, and his attorney included no additional

materials. Aron attached as an exhibit to his objections a copy of a letter he sent to

his attorney on November 18, 1994 requesting a copy of the documents pertaining

to his appeal, and he states that he received no response to that letter or to

subsequent letters and phone calls.

On April 30th, 1996, only six days after AEDPA was enacted, Aron filed a

motion with this Court to specify the grounds on which his appeal was affirmed

pursuant to 11th Cir. R. 36-1. This motion was also attached as an exhibit to his

objections, and in our view, it clearly reflects a diligent response to AEDPA’s

enactment. However, the clerk responded that the Court would not accept pro se

papers from him because he was represented by counsel, and suggested that he

contact his attorney instead, adding that a copy of his letter was being sent to his

attorney. Aron states that he again tried to contact his attorney, to no avail.

11
 On May 6, 1996, Aron filed a motion pursuant to 18 U.S.C. § 3582 to take

advantage of the “safety valve” amendment to the Guidelines and thereby obtain a

sentence reduction. On April 6, 1997, he wrote to the clerk of the district court to

inquire about the status of that motion. In his letter, also attached as an exhibit to

his objections to the magistrate’s report, he expressed his concern that the one-year

limitation period to file a § 2255 motion would expire on April 25, 1997. Aron

states that he also sent a copy of this letter to his appellate counsel. Aron claims

that on September 4, 1997 he finally received from his attorney a copy of the brief

that had been filed in his direct appeal. His § 2255 petition was filed within one

year of that date, on July 4, 1998.

At a minimum, then, the record reveals that Aron contacted the court twice

after AEDPA was enacted, and the first time he did so the court informed him that

it was sending a copy of his letter to his attorney. Moreover, Aron stated under

oath that he sent a copy of the second letter to his attorney as well, and that he

made further attempts to contact his attorney directly, but without success.

We find that, based on his allegations, Aron was entitled to an evidentiary

hearing.5 Section 2255 states:

5
Although it appears we have not previously specified a standard of review for the denial
of an evidentiary hearing in a petition pursuant to § 2255, in other contexts a district court’s
denial of an evidentiary hearing is reviewed for abuse of discretion. See, e.g., United States v.
Gay, 251 F.3d 950, 951 (11th Cir. 2001) (evidentiary hearing sought at sentencing); Loyd v.

12
 Unless the motion and the files and records of the case conclusively
show that the prisoner is entitled to no relief, the court shall cause
notice thereof to be served upon the United States attorney, grant a
prompt hearing thereon, determine the issues and make findings of
fact and conclusions of law with respect thereto.

28 U.S.C. § 2255 (emphasis added). As we have previously stated, if the petitioner

“alleges facts that, if true, would entitle him to relief, then the district court should

order an evidentiary hearing and rule on the merits of his claim.” Holmes v.

United States, 876 F.2d 1545, 1552 (11th Cir. 1989) (quoting Slicker v.

Wainwright, 809 F.2d 768, 770 (11th Cir. 1987)); see also United States v. Yizar,

956 F.2d 230, 234 (11th Cir. 1992) (district court must hold an evidentiary hearing

where court cannot state conclusively that the facts alleged by petitioner, taken as

true, would present no ground for relief). Moreover, the court should construe a

habeas petition filed by a pro se litigant more liberally than one filed by an

attorney. See Gunn v. Newsome, 881 F.2d 949, 961 (11th Cir. 1989). Although

we have stated that a district court is not required to hold an evidentiary hearing

where the petitioner’s allegations are affirmatively contradicted by the record, or

Alabama Dept. of Corrections, 176 F.3d 1336, 1339 (11th Cir. 1999) (evidentiary hearing sought
in connection with a motion to terminate consent decree and permanent injunction pursuant to
the Prison Litigation Reform Act). Other circuits have applied the abuse of discretion standard
to denials of § 2255 evidentiary hearings, see Frazer v. United States, 18 F.3d 778, 781 (9th Cir.
1994) (applying abuse of discretion standard and also noting that an evidentiary hearing is
required when the petitioner’s allegations are based on facts outside the record); United States v.
Estrada, 849 F.2d 1304, 1305 (10th Cir. 1988), and we believe that is the correct standard.

13
the claims are patently frivolous, see, e.g., Holmes 876 F.2d at 1553, no such

circumstances are present here. Aron has plainly alleged facts regarding his

diligence that would entitle him to relief in the form of a timely petition. His

allegations are not affirmatively contradicted by the record. Therefore, we find

that the district court abused its discretion in failing to hold an evidentiary hearing.6

However, we note that if the district court should determine that Aron

exercised due diligence, not all of Aron’s claims will be timely. Aron stated in his

objections to the magistrate’s report that he instructed his attorney to appeal only

the sentence, not the conviction. Petitioner’s Objections to the Magistrate’s Report

and Recommendation at 6. Thus, he cannot now argue that he learned of his

attorney’s failure to challenge the conviction on certain grounds only when he

received a copy of the brief filed in his appeal, since Aron instructed him not to

appeal the conviction. Accordingly, his claims challenging the sufficiency of the

evidence supporting the conviction and the legality of the conviction are barred.

6
We thus note another difficulty with the magistrate’s statement that “Aron offers no
proof of any due diligence on his part after discovering that his conviction was affirmed on
September 1993 [sic], prior to the filing of this motion to vacate on July 24, 1998.” Magistrate’s
Report and Recommendation at 6. The law is clear that, in order to be entitled to an evidentiary
hearing, a petitioner need only allege—not prove—reasonably specific, non-conclusory facts
that, if true, would entitle him to relief. If the allegations are not affirmatively contradicted by
the record and the claims are not patently frivolous, the district court is required to hold an
evidentiary hearing. It is in such a hearing that the petitioner must offer proof.

14
Under the facts that Aron has alleged, only the claims challenging his sentence

may be considered timely pursuant to § 2255(4).

CONCLUSION

For the foregoing reasons, we reverse and remand to the district court for

further proceedings consistent with this opinion.7

REVERSED AND REMANDED.

7
The concurring opinion concludes by pointing out that on remand the district court
could, consistently with this opinion, deny relief on the merits—presumably after holding an
evidentiary hearing on the merits if it determines that one is required—without ruling on the
statute of limitations bar. Although any concurring opinion is free to remind the district court of
its options, we express no opinion on the appropriate course, or disposition of this case, on
remand.

15
CARNES, Circuit Judge, concurring:

I join in the majority’s conclusion that the district court’s dismissal of

Aron’s 28 U.S.C. § 2255 motion as untimely is due to be reversed and the case

remanded for an evidentiary hearing on whether Aron exercised due diligence in

discovering the facts relating to his claims of ineffective assistance of appellate

counsel. But I do not join the dicta in the opinion concerning what would happen

if a petitioner exercised due diligence to ascertain the facts relating to his claims

after, but not before, the enactment of the AEDPA. The majority says that if those

were the facts, drawing upon Goodman v. United States, 151 F.3d 1335 (11th Cir.

1998), we should hold that the petitioner is excused from the lack of pre-AEDPA

diligence for § 2255(4) purposes. But Goodman involved a different part of the

statute of limitations provision and another issue. While Goodman’s holding

might be – or might not be – extended by this Court to the § 2255(4) “due

diligence” issue in an appeal where the facts raise the issue, this is not such an

appeal. Because the facts of this case as they are presently presented do not

involve due diligence exercised after but not before the enactment of the AEDPA,

this is not an appeal in which we can decide what would happen if those were the

facts.

16
 The majority casts its conjecture about what we should conclude in a case

where the petitioner demonstrated due diligence post- but not pre-AEDPA as a

holding, but it is not a holding. It is only dicta. The holding of a case on appeal

can extend no further than the facts presented in that case at the time of the appeal.

All that is said which is not necessary to the decision of an appeal given the facts

and circumstances of the case is dicta. See United States v. Aguillard, 217 F.3d

1319, 1321 (11th Cir. 2000)(“‘The holdings of a prior decision can reach only as

far as the facts and circumstances presented to the Court in the case which

produced that decision.’”)(citation omitted); United States v. Eggersdorf, 126 F.3d

1318, 1322 n.4 (11th Cir. 1997)(“[T]he pertinent language in Carter is dicta – not

necessary to deciding the case then before us.”); Hamilton v. Cannon, 80 F.3d

1525, 1530 (11th Cir. 1996) (“Those passages from Wideman are clearly dicta,

because they were in no way essential to Wideman’s holding ....”).

The facts of this case, as established for purposes of this appeal by the sworn

pleadings of Petitioner Aron in the district court, are that he demonstrated due

diligence throughout the period before as well as after enactment of the AEDPA.

In his own ungrammatical but articulate way, Aron made this about as clear as

anyone could. His objections to the magistrate judge’s report and recommendation

contain Aron’s statements under penalty of perjury that within months after Mr.

17
Casuso, his attorney, filed the direct appeal, and even before he was notified of the

result, Aron “made numerous and persistent efforts to obtain from Mr. Casuso his

appeal documents to no avail.” Aron “wrote many letters and placed numerous

phone calls to Mr. Casuso’s office, to no avail. It was as though Mr. Casuso had

vanished. It was impossible to reach him from the prison.” After those persistent

and unsuccessful efforts, Aron finally received from Casuso a copy of this Court’s

one-line affirmance of his conviction and sentence, but the document did not tell

him what issues were raised, the one thing he needed to know. As Aron tried to

explain to the district court:

But affirmed what? For God’s sake, what was affirmed???
Which were the issues that Mr. Casuso presented? What?
What? What?

Then, Aron wrote yet another letter, one dated November 18, 1994, asking that

Casuso send him a copy of the documents relating to the appeal, but he received:

“Nothing. No response.” Aron did not give up. His sworn statements describe

how: “[t]ime passed. Petitioner sent more letters and tried more phone calls. No

response by Mr. Casuso was got.”

After Aron heard that the AEDPA had imposed a deadline on filing, he sent

a motion to this Court asking that he be told what issues Casuso had presented in

his appeal. But, “[u]nfortunately, the Court of Appeals returned to petitioner his

18
humble motion,” and basically told him to contact his attorney, Mr. Casuso. In

Aron’s words: “What a ironic!” Aron did not give up even then, but instead

“continued insisting with Mr. Casuso, to no avail.” Finally, after months and years

of persistence, Aron got a copy of the direct appeal brief that had been submitted

on his behalf, and within a year of receiving it filed his § 2255 motion raising

ineffective assistance of counsel claims based upon the issues that had not been

asserted in the brief.

The government asserts that Aron’s efforts were not as continuous and

persistent as he has described them, but those are only bare assertions. There is

nothing in the record so far to contradict Aron’s sworn statements. After the

district court holds an evidentiary hearing it may turn out that those statements are

not the true facts. Maybe or maybe not. See generally Murphy v. City of Flagler

Beach, 846 F.2d 1306, 1310 (11th Cir. 1988)(factfinder free to reject even non-

controverted evidence); Burston v. Caldwell, 506 F.2d 24, 26 (5th Cir. 1975)(court

hearing petitioner’s testimony is not required to accept it even if uncontradicted);

Goodwin v. Smith, 439 F.2d 1180, 1182 (5th Cir. 1971)(same). Given the

procedural posture of this case, however, we must assume for present purposes that

the facts are as Aron has sworn them to be. It is those facts which circumscribe

and limit our holding.

19
 And those facts are that Aron made a continuous, persistent effort to find

out what issues had been raised in his direct appeal, an effort that began shortly

after the appeal was filed and did not end until it at last bore fruit when Aron

finally received a copy of the appellate brief on September 4, 1997. He was

diligent throughout. Because those are the facts before us in this appeal, we

cannot enter any holdings about what might have been if the facts were different.

We lack the power to decide in this case what would have been the result if Aron’s

diligence had not been exerted, as it was, on both sides of the AEDPA effective

date line.

The majority’s dicta about what would be the result if the facts were

different cannot and does not establish the law of this circuit or even the law of the

case. See Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 379, 114

S.Ct. 1673, 1676 (1994)(“It is to the holdings of our cases, rather than their dicta

that we must attend.”); Browning v. AT&T Paradyne, 120 F.3d 222, 225 n.7 (11th

Cir. 1997) (“Since this statement was not part of any holding in the case, it is dicta

and we are not bound by it.”)(citation omitted); Great Lakes Dredge & Dock Co.

v. Tanker Robert Watt Miller, 957 F.2d 1575, 1578 (11th Cir. 1992)(explaining

that dicta is neither law of the case nor binding precedent); McDonald’s Corp. v.

Robertson, 147 F.3d 1301, 1305 (11th Cir. 1998)(Carnes, J., concurring)(“For

20
these reasons, among others, dicta in our opinions is not binding on anyone for any

purpose.”). If the district court finds the facts to be that Aron was diligent after but

not before the enactment or effective date of the AEDPA, that court can then

decide whether such non-continuous, non-persistent diligence is enough under §

2255(4). And we can review that decision if the losing party appeals. Then and

only then will we be able to reach a holding on that issue.

One other point is worth mentioning. We have held that the statute of

limitations contained in § 2255 is not jurisdictional. Sandvik v. United States, 177

F.3d 1269, 1271 (11th Cir. 1999)(describing § 2255's deadline as “a garden-variety

statute of limitations, and not a jurisdictional bar”). As a result, a district court is

not required to rule on whether an asserted statute of limitations bar applies if the §

2255 motion may be denied on other grounds. Sometimes it will be easier for a

court to deny relief on the merits than to figure out the issues relating to the statute

of limitations. Nothing in the statute prohibits a court from proceeding in that

way, nor do the instructions we are issuing in this case. I join this Court’s

instructions to the district court that it may not dismiss Aron’s § 2255 motion on

statute of limitations grounds – insofar as the motion raises ineffective assistance

issues involving the appeal of Aron’s sentence – without conducting an

21
evidentiary hearing to ascertain the true facts relating to Aron’s efforts to ascertain

the issues his attorney had raised in the direct appeal.

22