United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 2, 2000 Decided June 16, 2000
No. 99-3041
United States of America,
Appellee
v.
Kendrick Albert Cicero, a/k/a Kenny,
a/k/a Albert Kenrich Cicero,
a/k/a Paul Haynes,
a/k/a Diamond,
Appellant
Appeal from the United States District Court
for the District of Columbia
(No. 91cr00633-01)
---------
No. 99-3029
United States of America,
Appellee
v.
Ian A. Thorne,
Appellant
Appeal from the United States District Court
for the District of Columbia
(No. 90cr00422-02)
(No. 91cr00633-01)
---------
A. J. Kramer, Federal Public Defender, argued the cause
for appellants. With him on the briefs was Evelina J.
Norwinski, Assistant Federal Public Defender.
John R. Fisher, Assistant U.S. Attorney, argued the cause
for appellee. With him on the briefs was Wilma A. Lewis,
U.S. Attorney. Mary-Patrice Brown, Assistant U.S. Attorney,
entered an appearance.
Before: Edwards, Chief Judge, Ginsburg and Sentelle,
Circuit Judges.
Opinion for the Court filed by Circuit Judge Ginsburg.
Ginsburg, Circuit Judge: Kendrick Cicero and Ian Thorne
filed separate appeals presenting the same questions: Must a
prisoner whose conviction became final before April 24,
1996--the effective date of the Antiterrorism and Effective
Death Penalty Act of 1996--raise any challenge to his convic-
tion or to his sentence, pursuant to 28 U.S.C. s 2255, within
one year of the effective date of the Act? If so, is that time
limitation subject to equitable tolling? And if it is, then is
either appellant entitled to such tolling based upon the equity
of his case?
We hold first that a prisoner whose conviction became final
prior to April 24, 1996 must have filed his s 2255 motion
within one year of that date. Further, we hold that regard-
less whether this limitation is subject to equitable tolling--a
question we need not decide today--the cases before us do
not warrant such relief.
I. Background
Prior to the effective date of the AEDPA a prisoner could
challenge his conviction or sentence as a violation of the
Constitution of the United States by filing a motion under 28
U.S.C. s 2255 at almost any time. See Mickens v. United
States, 148 F.3d 145, 146 (2d Cir. 1998). As amended by that
Act, paragraph six of s 2255 now limits the time in which a
prisoner may bring such a motion 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--
(1) the date on which the judgment of conviction be-
comes final;
(2) the date on which the impediment to making a mo-
tion 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.
Messrs. Cicero and Thorne ask us to excuse the tardiness
of their motions on the ground that they were impeded from
timely filing their s 2255 motions by government actions
beyond their control. They do not, however, claim that the
Government acted unlawfully.
A. Cicero's Case
Mr. Cicero was convicted in 1992 of possession with intent
to distribute and of conspiracy to distribute cocaine base, in
violation of 21 U.S.C. ss 841 and 846. He received concur-
rent sentences of 240 months of incarceration and five years
of supervised release, as well as a fine and a special assess-
ment. Mr. Cicero appealed and this court affirmed his
convictions. See United States v. Cicero, 22 F.3d 1156 (D.C.
Cir.), cert. denied, 513 U.S. 905 (1994).
Mr. Cicero states that he began working on a motion
challenging his conviction and sentence in 1996. His work
was interrupted several times that year, however. In Octo-
ber 1996, Mr. Cicero was stabbed by another inmate; he
spent five days in the hospital and was then placed in
protective segregation for an unspecified period. During this
time, Mr. Cicero had access to the prison library for only one
hour approximately every three weeks. On April 14, 1997,
prison officials packed Mr. Cicero's possessions, including his
legal papers, in anticipation of his transfer to a different
facility. He did not arrive there and regain his possessions
until June 20.
Mr. Cicero signed and mailed his s 2255 motion on July 24,
1997. The district court clerk's office received it on July 28.
The district court dismissed Mr. Cicero's motion as untimely
because he had failed to file it before expiration of the one
year grace period running from the effective date of the
AEDPA. Mr. Cicero appeals, claiming he was prevented
from timely filing by acts of the Government, that is, of prison
officials, beyond his control.
B. Thorne's Case
Mr. Thorne was convicted in 1991 of possession with intent
to distribute and of conspiracy to distribute and to possess
with intent to distribute cocaine base, in violation of 21 U.S.C.
ss 841 and 846. He was sentenced to 151 months of incar-
ceration and five years of supervised release, and on appeal
we affirmed his conviction. See United States v. Thorne, 997
F.2d 1504 (D.C. Cir. 1993).
Mr. Thorne states that in November 1995, after several
unsuccessful attempts to obtain from his attorney discovery
materials and other documents related to his case, he peti-
tioned the district court to compel their release. In March
1996 the district court ordered Mr. Thorne's attorney to
provide him with a copy of his case file, and Mr. Thorne
submitted a motion seeking the transcript of argument in the
appeal of his codefendant. In December 1996 the court
denied Mr. Thorne's request for the transcript, reasoning that
the appeal was a matter of public record and Mr. Thorne had
not demonstrated that he could not otherwise obtain a copy of
the transcript.
Mr. Thorne further states that he had been working on his
s 2255 motion with a "jailhouse lawyer" named Muhammad
Al'Askari, and that their progress was halted when Mr.
Al'Askari was placed in segregation some time prior to April
24, 1997. Mr. Thorne's legal papers were packed and stored
with Mr. Al'Askari's possessions during the period of his
segregation, which ended early in June. Mr. Thorne gave his
s 2255 motion to prison officials for mailing on June 11 and
the motion was filed in the district court on June 24. The
district court dismissed Mr. Thorne's motion as untimely
because it was submitted more than one year after the
effective date of the AEDPA. Mr. Thorne requested recon-
sideration and asked the court equitably to toll the time
limitation. The court declined, stating that although the time
limitation in s 2255 is subject to equitable tolling, Mr. Thorne
had not alleged facts that would warrant tolling in his case.
On appeal Mr. Thorne argues that the time limitation in
s 2255 is subject to equitable tolling and that tolling is
warranted in his case.
II. Analysis
We consider first application of the time limitation in
s 2255 to a prisoner whose conviction became final before the
effective date of the AEDPA. We address this issue de novo.
See Moore v. United States, 173 F.3d 1131, 1133 (8th Cir.
1999). Second, we consider whether, assuming the time limit
in s 2255 is subject to equitable tolling, it should be tolled in
the cases before us.
A. One Year Grace Period
We need not linger long over the first issue. The parties
agree, as do our sister Circuits, that a prisoner whose convic-
tion became final before the AEDPA was enacted has a one
year grace period from the date of enactment in which to file
a motion under s 2255. See Rogers v. United States, 180
F.3d 349, 354 (1st Cir. 1999); Mickens v. United States, 148
F.3d 145, 148 (2d Cir. 1998); Burns v. Morton, 134 F.3d 109,
112 (3d Cir. 1998); Brown v. Angelone, 150 F.3d 370, 374-75
(4th Cir. 1998); United States v. Flores, 135 F.3d 1000, 1006
(5th Cir. 1998); Brown v. O'Dea, 187 F.3d 572, 576-77 (6th
Cir. 1999); O'Connor v. United States, 133 F.3d 548, 550 (7th
Cir. 1998); Moore v. United States, 173 F.3d 1131, 1135 (8th
Cir. 1999); United States v. Valdez, 195 F.3d 544, 546 (9th
Cir. 1999); United States v. Simmonds, 111 F.3d 737, 746
(10th Cir. 1997); Goodman v. United States, 151 F.3d 1335,
1337 (11th Cir. 1998). This unanimity of view reflects, no
doubt, that without such a grace period a prisoner convicted
before the effective date of the AEDPA, when there was no
time limitation for filing a s 2255 motion, would be denied a
reasonable time within which to bring a claim before losing
the right to do so. See Flores, 135 F.3d at 1003-06. In any
event, the grace period expired on April 24, 1997. See
Rogers, 180 F.3d at 355; Mickens, 148 F.3d at 148; Villegas
v. Johnson, 184 F.3d 467, 469 & n.1 (5th Cir. 1999); Towns v.
United States, 190 F.3d 468, 469 (6th Cir. 1999); Moore, 173
F.3d at 1135; Simmonds, 111 F.3d at 746; but cf. Morton,
134 F.3d at 112 (grace period expires April 23, 1997); Ange-
lone, 150 F.3d at 375-76 (same); O'Connor, 133 F.3d at 550
(same); Valdez, 195 F.3d at 546 (same); Goodman, 151 F.3d
at 1337 (same); United States v. Jones, 963 F. Supp. 32, 34-
35 (D.D.C. 1997) (same).
Although Messrs. Cicero and Thorne were entitled to the
benefit of the grace period, neither appellant filed his s 2255
motion within the period allowed. Their motions will be
deemed timely, therefore, only if that time limitation may be
equitably tolled in their cases.
B. Equitable Tolling
Unless the Congress has provided otherwise, courts gener-
ally apply a rebuttable presumption that a statute of limita-
tion is subject to equitable tolling. See Irwin v. Department
of Veterans Affairs, 498 U.S. 89, 95-96 (1990). Although
most of the circuits that have considered the questions have
concluded that s 2255 is a statute of limitation and that it is
subject to equitable tolling, see Kapral v. United States, 166
F.3d 565, 575 (3d Cir. 1999); Harris v. Hutchinson, No. 99-
6175, 2000 U.S. App. LEXIS 6170, at *13 (4th Cir. Apr. 4,
2000); Fisher v. Johnson, 174 F.3d 710, 713 (5th Cir. 1999);
Calderon v. United States Dist. Court (Calderon), 128 F.3d
1283, 1289 (9th Cir. 1997); Miller v. Marr, 141 F.3d 976, 978
(10th Cir. 1998); Sandvik v. United States, 177 F.3d 1269,
1271 (11th Cir. 1999); cf. also Moore, 173 F.3d at 1134
(holding s 2255 is statute of limitation in case where equita-
ble tolling was not at issue), the Seventh Circuit has ques-
tioned this conclusion even while applying it to a petition filed
under s 2254, see Taliani v. Chrans, 189 F.3d 597, 598 (7th
Cir. 1999) (in view of "express tolling provisions [of 28 U.S.C.
s 2244(d)(1)] it is unclear what room remains for importing
the judge-made doctrine of equitable tolling"), and at least
one district court has disagreed entirely, see Giles v. United
States, 6 F. Supp. 2d 648, 649 (E.D. Mich. 1998) (concluding
that s 2255 is a limit on jurisdiction of court, not a statute of
limitations, and therefore is not subject to equitable tolling).*
The circuits holding that s 2255 is subject to equitable
tolling have announced some general principles for determin-
__________
* Some of the cited cases consider whether a court may equitably
toll the time limitation in 28 U.S.C. s 2254, which applies to post-
conviction motions filed by state prisoners. Courts have generally
ing whether the facts in a particular case justify tolling the
limitation. Equitable tolling, which is to be employed "only
sparingly" in any event, see Irwin, 498 U.S. at 96, has been
applied in the context of the AEDPA only if " 'extraordinary
circumstances' beyond a prisoner's control make it impossible
to file a petition on time." See Calderon, 128 F.3d at 1288. In
the last-quoted case the court equitably tolled the time limit
in s 2244(d)(1) because the prisoner's lead counsel had with-
drawn from the representation after accepting employment in
another state and his successor as counsel was unable to use
his work product. See also Miles v. Prunty, 187 F.3d 1104,
1107 (9th Cir. 1999) (equitably tolling time limit where prison-
er submitted petition for mailing five days before deadline
and petition was returned to him after deadline had passed).
The Fifth Circuit has suggested several circumstances in
which equitable tolling is not warranted. The prisoner's
ignorance of the law or unfamiliarity with the legal process
will not excuse his untimely filing, nor will a lack of represen-
tation during the applicable filing period. See Fisher, 174
F.3d at 714-15; Turner v. Johnson, 177 F.3d 390, 392 (5th
Cir. 1999). In addition, the court will not relieve a petitioner
who has sat upon his rights. See Coleman v. Johnson, 184
F.3d 398, 402-03 (5th Cir. 1999).
As it turns out, we need not decide today whether s 2255 is
subject to equitable tolling because neither Mr. Cicero nor
__________
applied the same analysis to the time limitations in s 2254 and
s 2255. See Flores, 135 F.3d at 1002 n.7 ("Because of the similarity
of the actions under sections 2254 and 2255, they have traditionally
been read in pari materia where the context does not indicate that
would be improper"); but cf. Hoggro v. Boone, 150 F.3d 1223, 1226
(10th Cir. 1998) (noting that unlike s 2255, s 2254 is tolled for time
spent pursuing post-conviction relief in state court, and suggesting
that "the apparently firm deadline of April 24, 1997, in [United
States v. Simmonds, 111 F.3d 737 (10th Cir. 1997)] is appropriate
only for motions ... under s 2255"); Paige v. United States, 171
F.3d 559, 561 (8th Cir. 1999) (citing Hoggro for proposition that
equitable tolling is available in s 2254 cases but not in s 2255
cases).
Mr. Thorne has alleged such "extraordinary circumstances"
as to warrant equitable tolling in any event.
1. Cicero's Case
Mr. Cicero claims that he first learned of the one year
limitation in the AEDPA in October 1996 when he filed a
s 2255 motion while he was in protective segregation. He
continued work on the s 2255 motion he had begun earlier
that year, although he was hampered by reduced access to
the prison law library due to his segregation. His work was
interrupted from April 14 until sometime in June 1997 while
he was separated from his legal papers during a transfer
between prisons--an interruption caused by prison officials
whose conduct was beyond his control. Mr. Cicero concedes
that his transfer and incidental separation from his papers
were not unlawful, and therefore do not implicate s 2255
p 6(2). He asserts, nonetheless, that the time to file should
be tolled because the Government's action--rather than his
own inaction--caused him to miss the filing deadline.
Mr. Cicero's conviction became final in 1994. He had from
then until April 24, 1997 to prepare a s 2255 motion. Al-
though he has identified several impediments to his work on
the motion during the last six months of the grace period, Mr.
Cicero has not suggested that he was prevented from working
on the motion at any time before that period. In Miller, 141
F.3d at 978, the court considered whether to toll the time
limitation in s 2244(d) for a state prisoner who was convicted
in 1993 and in 1995 was transferred to a private correctional
institution that did not have the law books relevant to his
case. It was not until the prisoner was returned to a state
institution, after the one year grace period had expired, that
he learned of the time limitation. Id. Because the prisoner's
lack of access to legal materials from 1995 to 1997 "[did] not
explain [his] lack of pursuit of his federal claims before the
transfer," the Tenth Circuit did not toll the time limitation.
Mr. Cicero, too, had ample time in which to complete his
motion. Although his work may have been interrupted dur-
ing the final months of the grace period, we cannot say that
Mr. Cicero presents such "extraordinary circumstances" as to
warrant equitable tolling.
2. Thorne's Case
Mr. Thorne also argues that his s 2255 motion was untime-
ly for reasons beyond his control. He began work on his
motion in 1995; his work was delayed in part by the district
court's lengthy consideration of his requests for documents,
the last of which the court resolved in December 1996. In
the spring of 1997, however, Mr. Thorne unfortunately gave
his legal papers to a jailhouse lawyer whose placement in
segregation separated Mr. Thorne and his papers from some
time before the expiration of the one year grace period until
after the filing deadline had passed.
The district court declined to toll the limitation for Mr.
Thorne because "[t]here has been no showing here that the
defendant diligently pursued the filing of his motion." The
Court explained its reasoning as follows:
It is unclear when [Mr. Al'Askari] was placed in ad-
ministrative segregation. For example, [Mr. Al'Askari]
may have been placed in administrative segregation just
prior to [the deadline], or shortly before that date. It is
not clear what, if any, action the defendant took to have
the papers returned to him. Moreover, the defendant
has not stated why he did not request an extension of
time from the Court within which to file his motion.
Mr. Thorne acknowledges that he never asked the prison
officials to return his legal documents, but he claims that such
a request would have been futile because one inmate was not
permitted to retrieve the property of another after it had
been packed up due to a segregation order. He did not file a
motion for an extension of time, he says, because he was
unaware that he could do so. Mr. Thorne argues that before
dismissing his motion as untimely the district court should
have sought additional information regarding what steps he
might have taken to regain possession of his papers. He asks
us either to toll the time limitation or at least to remand his
case to the district court for further factfinding.
Mr. Thorne has not given us sufficient reason to take either
step. He was not prejudiced by the district court's delay in
deciding his requests for documents, as the court ruled upon
his motions well in advance of the deadline for filing his
s 2255 motion. Further, he entrusted Mr. Al'Askari with his
legal documents at his peril. See, e.g., Paige v. United States,
171 F.3d 559, 561 (8th Cir. 1999) (equitable tolling not avail-
able to prisoner whose petition, prepared by an inmate in a
different prison, was delayed in mail); Henderson v. Johnson,
1 F. Supp. 2d 650, 655 (N.D. Tex. 1998) (equitable tolling
denied to prisoner to whom fellow inmate had fraudulently
represented that he had timely filed petition for him). We
agree with the district court, therefore, that Mr. Thorne has
not alleged any circumstances surrounding the untimeliness
of his s 2255 motion so compelling as to warrant tolling the
time limit.
III. Summary and Conclusion
Prisoners whose convictions became final prior to the effec-
tive date of the AEDPA had until April 24, 1997 to file a
motion for relief under s 2255. We do not decide whether
this limitation is generally subject to equitable tolling because
even if it is we would not toll the limitation in either of the
cases before us. The judgments of the district court are
therefore
Affirmed.