Brackett v. United States

United States Court of Appeals
For the First Circuit

No. 01-1466

SCOTT BRACKETT,

Petitioner, Appellant,

v.

UNITED STATES OF AMERICA,

Respondent, Appellee.

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

[Hon. William G. Young, U.S. District Judge]

Before

Lynch and Lipez, Circuit Judges,
Doumar*, Senior District Judge.

Neil A. Hourihan for appellant.
Dina Michael Chaitowitz, Assistant United States Attorney,
with whom James B. Farmer, United States Attorney, was on brief for
appellee.

*Of the Eastern District of Virginia, sitting by
designation.
 October 31, 2001

LYNCH, Circuit Judge. This case raises an issue important

to the administration of criminal law: the accrual date for the

application of the one year limitations period in 28 U.S.C. § 2255(4)

(1994 & Supp. II 1996) to a federal prisoner who petitions to reduce

his federal sentence because the underlying state convictions (on which

the length of the federal sentence is predicated) have since been

vacated.

Scott T. Brackett is a federal prisoner who pled guilty in

July 1997 to conspiracy to distribute and possession with intent to

distribute methamphetamine in violation of 21 U.S.C. § 846 (1994) and

21 U.S.C. § 841(a)(1) (1994 & Supp. 2000). His federal sentence of 108

months became final on March 12, 1998. More than two years later, on

December 18, 2000, he filed a petition under 28 U.S.C. § 2255 to set

aside his sentence. His claim was that his federal sentence, as a

career offender under U.S.S.G. § 4B1.1, was predicated on his having

been convicted at least twice before of state crimes; that those

convictions had now been set aside by the state court; and that he

should now be resentenced. He says he is no longer a career offender

and his sentencing range consequently is only 30 to 37 months.

Brackett argues that because he has already served this time he should

now be released.

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 The district court dismissed the petition as untimely under

28 U.S.C. § 2255. The district court later denied reconsideration on

the grounds that Brackett had not brought the petition within one year

of the date the sentence became final as required by 28 U.S.C. §

2255(1) and that none of the other limitation provisions within that

statute applied. Gonzalez v. United States, 135 F. Supp. 2d 112, 123-

25 (D. Mass. 2001). The district court also issued a certificate of

appealability on the question of whether the accrual provision set

forth in § 2255(4) was applicable here. Id. at 125-26.

I.

A chronology of the pertinent events is helpful to understand

the issues presented. In 1991, Brackett was convicted in state

district court of assault and battery with a dangerous weapon, on his

admission to sufficient facts, and was sentenced to 60 days. In 1993,

Brackett pled guilty to a state charge of assault and battery with a

dangerous weapon and received a two year suspended sentence. Further,

in 1995 he also pled guilty to assault with a dangerous weapon in state

court and was placed on probation.

On September 5, 1996, he was arrested on federal charges of

conspiracy to distribute and possession with intent to distribute

methamphetamine.

On October 9, 1997, Brackett moved in state court to vacate

the 1991 and 1993 convictions. He argued that the 1991 and 1993 plea

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colloquies were insufficient and that he was intoxicated at the time of

the plea proceedings. In October of 1997, a state district judge

denied his motion as to the 1991 conviction. In the 1997 memorandum

and ruling from the state district court, the judge found that after

seven years there was no preserved record of the defendant’s plea

conducted before the court. The 1991 case file indicated that Brackett

was represented by counsel, and had executed the standard written jury

waiver. The reviewing judge noted that the familiar events of federal

defendants returning to the state court to vacate state convictions

often repeated themselves in our state courts system as
defendants and defense attorneys seek all avenues of relief
from federal sentencing guidelines. The resources of state
courts, including those of Massachusetts, are called upon
time and again to turn the state criminal justice system
upside down to find any possible reason to vacate state
convictions to afford federal defendants relief from what
apparently is becoming a more and more unworkable, mandatory
federal sentencing system.
Having reviewed the casefile in this matter at
length, and the materials submitted by the defendant in
support of his motion, I find no justifiable grounds to
allow the defendant’s motion. Further, it is to be noted
that justice is not best served by the adoption of novel or
convoluted arguments designed to ultimately afford
defendants relief in state court from a mandatory federal
sentencing system. That relief is best found within the
federal system itself, be it within the federal courts or
within the Congress.

Brackett’s other effort, to withdraw the admission to

sufficient facts in his 1993 case, was rejected by the state court on

February 10, 1998. The reasons Brackett gave for undoing his 1993 plea

were that the plea colloquy was incomplete and that Brackett was under

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the influence of alcohol at the time and was unaware of the possible

repercussions that could occur at a later date. The court noted that

the tape recording of the plea colloquy no longer existed inasmuch as

the defendant had delayed nearly five years in presenting the motion.

Although Brackett had the right to appeal from the 1997 and 1998

denials of his motions to vacate the 1991 and 1993 convictions under

Rule 30(c)(8) of the Massachusetts Rules of Criminal Procedure, he did

not do so.

On February 19, 1998, Brackett was sentenced on the federal

methamphetamine charges. As a result of having two prior state

convictions, he was in a criminal history category of VI, had an

adjusted offense level of 29, and was sentenced as a career offender

under U.S.S.G. § 4B1.1. At the time he was sentenced, the prior state

convictions stood. The state courts had rebuffed his efforts to vacate

those 1991 and 1993 convictions. If the state convictions had then

been vacated, his sentence would have been in the 30-37 month range, as

opposed to the 108 months he received. Gonzalez, 135 F. Supp. 2d at

117. On March 12, 1998, his federal sentence became final because

there had been no appeal. Consequently the Antiterrorism and Effective

Death Penalty Act ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214 (Apr.

24, 1996), limit in § 2255(1) of one year from the date of the final

judgment of conviction expired before Brackett filed his § 2255

petition on December 18, 2000.

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 Only after his federal sentence was imposed did Brackett

start yet another attempt to vacate his state convictions. On January

3, 2000, he filed a new set of motions to vacate the 1991 and 1993

convictions. In identical motions, Brackett asserted that he was

denied effective assistance of counsel in 1991 and 1993 because counsel

did not object to his pleading guilty even though counsel knew that he

was intoxicated, and for other reasons.

His year 2000 state motions for new trials on his 1993 plea

and his 1991 plea were allowed by the state court when the state

prosecutor's office agreed to the motions. There was no judicial

finding that the pleas should be vacated due to constitutional

violations. In fact, the charges against Brackett were pending in the

state court system at the time this case was briefed to us.

II.

Under 28 U.S.C. § 2255, a prisoner in custody under sentence

of a federal court, claiming the right to be released on the ground

that the sentence was imposed in violation of the Constitution or laws

of the United States, may petition the court that imposed the sentence

to vacate, set aside or correct the sentence. The statute provides for

a one year period of limitations, which 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

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 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.

28 U.S.C. § 2255. The question on the certificate of appealability

concerns only the effect of subsection (4), and it is the only issue

which we now consider.

Brackett argues that "the date on which the facts supporting

the claim or claims presented could have been discovered through the

exercise of due diligence" must mean the date on which the state court

vacated the prior criminal conviction. The government contends that

the statutory language refers to situations where the underlying facts

supporting the vacating of the state conviction were not known to the

defendant and could not have been discovered through the exercise of

due diligence; then the one year runs from the discovery of such facts

(or when they could have been discovered).1 The government says that

1 The government’s brief also argues at great length that
the claim presented here is not cognizable under 28 U.S.C. §
2255. We do not decide this issue. First, this issue was not
raised below. Indeed, the district court dismissed Brackett's
petition without providing the government an opportunity to
respond. The issue is outside of the scope of the certificate
of appealability, and cannot be reviewed by this Court. Bui v.
DiPaolo, 170 F.3d 232, 236-37 (1st Cir. 1999) (holding that in

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because Brackett knew of the facts he used to support his state court

motions well before the date of his federal sentencing, subsection (4)

does not apply and this case is governed by subsection (1). The

government argues that Brackett's claim is time barred because more

than one year has expired since "the date on which the judgment of

conviction [became] final." 28 U.S.C. § 2255(1). We review de novo the

issue of statutory interpretation. Trenkler v. United States, No. 00-

1657, 2001 WL 1215366, at *2 (1st Cir. Oct. 16, 2001).

The problem before us is best understood in context. Through

several different mechanisms the federal sentencing guidelines increase

the duration of imprisonment for a federal offender who has prior state

or federal convictions. One of those mechanisms is the career offender

enhancement found in U.S.S.G. § 4B1.1. Because the length of the

federal sentences increases with prior state convictions, the

a habeas case only issues certified for appeal in the
certificate of appealability can be reviewed by the appellate
court). Second, in United States v. Tucker, 404 U.S. 443
(1972), the Supreme Court allowed the use of § 2255 to attack a
sentence and remanded for reconsideration of the sentence when
the federal sentence took into account state convictions which
violated the 6th Amendment right to counsel under Gideon v.
Wainwright, 372 U.S. 335 (1963). The government made a similar
argument in United States v. Pettiford, 101 F.3d 199, 201 (1st
Cir. 1996), where it tried to "limit the availability of §
2255." We rejected this argument at that time and held that
"whether on constitutional or grounds otherwise subject to
collateral attack, we concur with the district court's
recognition of federal habeas jurisdiction." Id.

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sentencing guidelines have led to a cottage industry of diligent

defense counsel seeking to vacate old state convictions in order to

reduce the federal sentence. See United States v. Payne, 894 F. Supp.

534, 537 n.7 (D. Mass. 1995) (noting the "surprising infirmity" of

Massachusetts state court convictions "as they are increasingly coming

under intense scrutiny in the last ditch attempt to avoid" enhanced

federal sentences). In this sense, as the Massachusetts state court

judge noted in his 1997 denial of Brackett's motion to vacate, the

federal sentencing guidelines have imposed an unwanted burden on the

state courts, which are now faced with a flood of petitions from

federal defendants and prisoners attempting to vacate state court

convictions. These efforts often come many years after the date of

those state convictions. This is particularly problematic because, as

the Supreme Court noted in Lackawanna County District Attorney v. Coss,

532 U.S. 394, 121 S. Ct. 1567, 1574 (2001), "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." Attempts to

vacate or set aside state court convictions have posed a particular

problem in Massachusetts, because in the state district courts, where

a great many criminal offenses are tried, the records of the

proceedings may be destroyed after two and one half years. Special

Rule of the District Courts 211(A)(4) (1997).

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 The problem of whether to adjust federal sentences when a

federal defendant asserts that the state convictions were

constitutionally invalid presents a number of issues. One was the

issue of where a claim that the state conviction was invalid should

first be heard. In Custis v. United States, 511 U.S. 485, 493-97

(1994), the Supreme Court held that the federal prisoner could not

attack the validity of his prior conviction which raised his penalty

from a maximum of 10 years to a mandatory minimum of 15 years in prison

pursuant to the Armed Career Criminal Act, 18 U.S.C. § 924(e) ("ACCA"),

during the federal sentencing proceedings, unless the attack was based

on a deprivation of the right to counsel under Gideon v. Wainwright,

372 U.S. 335 (1963). Custis was animated by two policy interests: ease

of administration and finality of judgments. Custis, 511 U.S. at 496-

97. Custis noted that it is easier to administer cases in which Gideon

claims are made than cases that claim ineffective assistance of counsel

or failure to assure a voluntary guilty plea. Id. at 496. In

addition, finality is especially important where a defendant challenges

a previous conviction because "the defendant is asking a district court

'to deprive [the] [state-court judgment] of [its] normal force and

effect in a proceeding that ha[s] an independent purpose other than to

overturn the prior judgmen[t].'" Id. at 497 (quoting Parke v. Raley,

506 U.S. 20, 30 (1992) (alterations in original)). Naturally, the

Custis ruling applies whether the sentence enhancement was imposed

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because of ACCA or because of the Sentencing Guidelines. United States

v. Arango-Montoya, 61 F.3d 1331, 1336 (7th Cir. 1995); United States v.

Garcia, 42 F.3d 573, 581 (10th Cir. 1994).

After Custis, the "where" question became whether the

constitutional infirmity of the state conviction could be raised

initially in federal court by a § 2255 petition. In Daniels v. United

States, 532 U.S. 374, 121 S. Ct. 1578 (2001), the Supreme Court

answered this question negatively, with the exception of convictions in

violation of the Gideon right to counsel. The Court said that a

defendant may raise the issue of the validity of a state conviction in

state court on direct appeal or in state post-conviction proceedings,

or, if those routes had been exhausted, by petition for habeas under 28

U.S.C. § 2254. Daniels, 121 S. Ct. at 1582-83. But the Court would

not permit leapfrogging of those state procedures to attack the state

conviction initially by a federal § 2255 petition. The Court did leave

open the possibility that a prisoner, who is prevented by no fault of

his own from bringing a state proceeding to vacate, and was now barred

by state law from doing so, could bring a § 2255 petition. Id. at

1584.

This means that, absent a Gideon challenge, the "where"

question is answered: the initial attack on the validity of the state

conviction should be brought in state court. Only after the state

court proceedings are exhausted, as a general rule, can a prisoner come

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to federal court to pursue a habeas claim. This rule is generally true

both under § 2255, the federal post-conviction review for those in

federal custody, and, more usually, under 28 U.S.C. § 2254, the habeas

statute for those in state custody. O'Sullivan v. Boerckel, 526 U.S.

838, 842 (1999).

In this case, Brackett has exhausted his state court remedies

because he has managed to vacate two state convictions. He has

accomplished the first step necessary to have his sentence reviewed by

a habeas court. However, he must still contend with the time

limitation contained in § 2255 -- that is, the question of when such a

claim is no longer timely. Initially, we look at this question by

analogy to the parallel habeas statute.

AEDPA affected both federal post-conviction relief and

habeas. The Supreme Court commonly interprets § 2255 and § 2254 in

light of each other. See Lackawanna County, 121 S. Ct. at 1573 (2001)

(extending Daniels rule under § 2255 to a § 2254 case). Just as §

2255, the statute that concerns us, has time limits, so too does §

2244, which applies to § 2254 petitions.

Section 2244(d)(1) provides that "[a] 1-year period of

limitation shall apply for a writ of habeas corpus by a person in

custody pursuant to the judgment of a State court." It goes on to

state that the period of limitation starts to run from the latest of

four potential occurrences which are substantially similar to the ones

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outlined in § 2255. 28 U.S.C. § 2244(d)(1). Indeed, § 2244(d)(1)(D)

is strikingly similar to the provision that concerns us, § 2255(4).

The limitation under § 2244(d)(1)(D) states that the limitation period

shall run from the latest of "the date on which the factual predicate

of the claim or claims presented could have been discovered through the

exercise of due diligence." 28 U.S.C. § 2244(d)(1).2 The only

difference between the two provisions is that § 2255(4) uses the phrase

"facts supporting the claim" while § 2244(d)(1)(D) uses the phrase "the

factual predicate of the claim."

The jurisprudence on the limits imposed on § 2254 by § 2244

is more developed and sheds some light on our problem. The Supreme

Court addressed the issue of statutory tolling of § 2244(d)'s one year

limitation period in Artuz v. Bennett, 531 U.S. 4 (2000), and held

that, under § 2244(d)(2), an application to a state court for post-

conviction relief tolls the limitations period in § 2244(d)(1), even if

the application contains procedurally barred claims. Recently, in

Duncan v. Walker, 121 S. Ct. 2120 (2001), the Court once more addressed

the issue of tolling of the one year limitation period in § 2244(d).

Duncan held that, while the time during which a properly filed

application for state post-conviction or other collateral review is

2 In addition, § 2244(d)(2) includes a tolling provision:
"[t]he time during which a properly filed application for State post-
conviction or other collateral review . . . is pending shall not be
counted toward any period of limitation under this subsection." 28
U.S.C. § 2244(d)(2).

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pending is not counted toward the limitation period for filing a § 2254

petition from AEDPA’s effective date, the tolling provision does not

apply to the time taken by a prior application for federal habeas

corpus. Duncan, 121 S. Ct. at 2129. The Court noted that the one year

limitation period in § 2244(d)(1) expressed Congress’s interest in

finality of state court judgments because it "reduces the potential for

delay on the road to finality." Id. at 2128. The Court also observed

that while the tolling provision in § 2244(d)(2) potentially lengthens

the road to finality, it "limits the harm to the interest in finality

by according tolling effect only to 'properly filed application[s] for

State post-conviction or other collateral review.'" Id. (alteration in

original).

Justices Souter and Stevens concurred in the result in Duncan

and noted that they thought there was nothing to bar a district court

from retaining jurisdiction of a § 2254 petition from a state prisoner

while state remedies were exhausted. Id. at 2129 (Souter, J.,

concurring); id. at 2129-30 (Stevens, J., concurring). This is their

view, although in a pre-AEDPA decision, Rose v. Lundy, 455 U.S. 509

(1982), the Supreme Court directed district courts to dismiss, not

stay, petitions under § 2254 while the state remedies were being

exhausted.

Justices Souter and Stevens also discussed the possibility

of equitable tolling in their concurrences. Justice Stevens stated

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that because "federal habeas corpus has evolved as the product of both

judicial doctrine and statutory law," AEDPA does not "preclude[] a

federal court from deeming the limitations period tolled . . . as a

matter of equity." Id. at 2130. The possibility of equitably tolling

the statute of limitations contained in § 2244(d)(1) has been discussed

in many cases. Indeed, this court in Neverson v. Bissonnette, 261 F.3d

120, 127 (1st Cir. 2001), remanded a § 2254 petition for consideration

of the possibility of equitable tolling, without expressing a view as

to whether the doctrine was available. In Delaney v. Matesanz, 264

F.3d 7, 14-15 (1st Cir. 2001), we considered that even if equitable

tolling were available on that § 2254 petition, the defendant there did

not qualify. See also Fahy v. Horn, 240 F.3d 239, 244 (3d Cir.)

(equitable tolling of § 2244(d)'s limitation is only available in

extraordinary circumstances), cert. denied, No. 01-17, 2001 WL 82597

(U.S. Oct. 1, 2001); Felder v. Johnson, 204 F.3d 168, 171-73 (5th Cir.)

(ignorance of the law does not warrant equitable tolling), cert.

denied, 531 U.S. 1035 (2000); Smith v. McGinnis, 208 F.3d 13, 17 (2d

Cir.) (per curiam) (equitable tolling applies to the one year statute

of limitations in § 2244(d) "only in . . . rare and exceptional

circumstance[s]" (internal quotation marks omitted)), cert. denied, 531

U.S. 840 (2000).

It is clear that the jurisprudence under § 2254, through §

2244, suggests a strong concern for finality, possibly leavened in

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instances of clear injustice by narrow safety valves of either

equitable tolling or a stay of a premature federal petition. Similar

concerns must animate the limitations period under § 2255.

To return to § 2255, the net result of Custis and Daniels

was to leave federal prisoners in a practical bind. They could not

bring a § 2255 petition to federal court until they had gotten the

state convictions vacated and they had only one year in which to

accomplish that from the date of federal conviction -- a daunting task.

That was so unless there was an alternate reading of the timelines.

The "when" question then becomes whether the language of §

2255(4) means that such a claim for federal resentencing does not

accrue, Wims v. United States, 225 F.3d 186, 190 (2d Cir. 2000);

McGinnis, 208 F.3d at 15, until the state convictions are vacated,

regardless of when the prisoner knew or should have known of the facts

supporting the vacating of the state conviction.

We hold 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. Section 2255(4)

provides that the period begins to run from the date "on which the

facts supporting the claim or claims presented could have been

discovered through the exercise of due diligence." 18 U.S.C. §

2255(4). Brackett's reading of that clause -- that the key date is the

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date on which the state court vacates his conviction -- is supported by

some district court decisions.3 The district court here rejected that

reading, finding that such an outcome is "contrary to the intent of

Congress to impose stringent limitations to habeas relief and provide

finality to federal sentences." Gonzalez, 135 F. Supp. 2d at 125. We

too reject Brackett’s reading for three reasons: it is not the most

natural reading of the statute, it is inconsistent with the readings

given to parallel uses of similar language by Congress, and such a

reading would contravene legislative intent.

The most natural reading of subsection (4), both alone and

in the context of the entire § 2255, is inconsistent with Brackett’s

argument. It would make little sense for Congress to have used the

phrase "facts supporting the claim [that] could have been discovered

through the exercise of due diligence" if "facts" included a state

court set aside of a prior conviction. Such court actions are obtained

at the behest of the petitioners and not "discovered" by them. It

3 In United States v. Cavallaro, No. CRIM. 95-52-P-H,
2000 WL 230225 (D. Me. Feb. 9, 2000), the court interpreted the
term "facts" in subsection (4) as the fact of the state court
decision vacating the prior convictions and held that such facts
were not "discoverable" until the date of that decision.
Similarly, in United States v. Hoskie, 144 F. Supp. 2d 108, 111
(D. Conn. 2001), the court held that the one year statute of
limitations under 2255(4) "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."

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would be an odd usage to say that court actions "could have been

discovered." The language rather suggests that this provision is

concerned with facts that were not known and could not have been

discovered through the exercise of due diligence as of the date of the

federal sentence. Although it is true that Brackett did not know how

the state court would act on his motion and did not know when it would

act on his motion, we do not think that these are the type of facts to

which Congress referred. The construction Brackett gives, although

arguable, is not the most plausible reading on a purely linguistic

basis.

Further, the construction of the remaining clauses of § 2255

undercuts Brackett's argument. In the law, "facts" are usually

distinguished from court decisions. That distinction is itself

contained within § 2255. Indeed, § 2255(3) refers to the date a right

asserted was initially recognized by the Supreme Court, and § 2255(1)

refers to the date a judgment becomes final. The use of the term

"facts" in subsection (4) is in contrast to both the language about the

recognition of rights asserted recognized by a court in subsection (3)

and a court's judgments in subsection (1).

We think that the reference in subsection (4) was to basic,

primary, or historical facts, as that is the sense in which Congress

has used similar language elsewhere. There are a great many other

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instances where courts4 and statutes refer to dates on which facts

supporting claims presented could have been discovered through the

exercise of due diligence.

Perhaps the most important examples are in the parallel

habeas provisions. We start with 28 U.S.C. § 2244(d)(1), with its

parallel language to § 2255. 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." This

provision's reference to "factual predicates" has been

interpreted to mean evidentiary facts or events and not court

rulings or legal consequences of the facts. Owens v. Boyd, 235

F.3d 356, 359 (7th Cir. 2000) (stating that "the trigger in

2244(d)(1)(D) is (actual or imputed) discovery of the claim's

4 For example, in tort law under the discovery rule, the
running of the statute of limitations does not begin until the fact of
the injury becomes known, or should have become known in the exercise
of due diligence. See, e.g., Collins v. Nuzzo, 244 F.3d 246, 253 (1st
Cir. 2001) (stating that in Massachusetts defamation cases "the statute
only starts to run when the harm becomes known, or in the exercise of
reasonable diligence should have become known, to the injured party"
(internal quotation marks omitted)); Saenger Org., Inc. v. Nationwide
Ins. Licensing Assocs., Inc., 119 F.3d 55, 65 (1st Cir. 1997) ("Under
the Massachusetts discovery rule, the running of the statute of
limitations is delayed while 'the facts,' as distinguished from the
'legal theory for the cause of action,' remain 'inherently unknowable'
to the injured party." (quoting Catrone v. Thoroughbred Racing Ass'ns
of N. Am., Inc., 929 F.2d 881, 885 (1st Cir. 1991)) (emphasis and
internal quotation marks omitted)).

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'factual predicate', not recognition of the facts' legal

significance"); Ybanez v. Johnson, 204 F.3d 645, 646 (5th Cir.)

(per curiam) (rejecting the argument that a state court decision

can be the factual predicate under § 2244(d)(1)(D)), cert.

denied, 531 U.S. 881 (2000). Similarly, 28 U.S.C. § 2254(d)(2)

refers to state court decisions which refer to an "unreasonable

determination of the facts." We recently held that for this

purpose "facts" are defined as "basic, primary, or historical

facts." Sanna v. DiPaolo, No. 01-1008, 2001 WL 1013148, at *3

(1st Cir. 2001). Because § 2254 (habeas corpus from state

convictions) and § 2255 (post-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).

Using this model, Brackett was aware of the "facts"

supporting his claim that his state court conviction was invalid --

that he was intoxicated during the plea colloquy and that the colloquy

was incomplete -- long before the date of his federal sentencing.

Our final reason is that Brackett's reading of § 2255 would

create a loophole which is contrary to the legislative intent of

insuring a greater degree of finality. Duncan and other cases

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establish that one of the signal purposes animating AEDPA is the desire

of Congress to achieve finality in criminal cases, both federal and

state. Duncan, 121 S. Ct. at 2127-28; Williams v. Taylor, 529 U.S.

420, 436 (2000); Calderon v. Thompson, 523 U.S. 538, 554-58 (1998); see

also Trenkler, 2001 WL 1215366 at *4 (noting importance of not creating

an "end-run" around AEDPA's statute of limitations because of concern

for delay); United States v. Barrett, 178 F.3d 34, 38 (1st Cir. 1999)

("gatekeeping mechanisms . . . augment society’s interests in finality

of criminal convictions"). To read the statute as Brackett does would

be to create strong counter-incentives working against finality in both

the state and federal criminal justice systems. On Brackett's reading,

federal prisoners would be given incentives to delay or repeat their

challenges to their state court convictions, and particularly to wait

until the state had destroyed the trial or plea records, thus making it

easier in some instances to obtain an order vacating the conviction.

Assuming the state court vacates the conviction, the delay would also

diminish the chances of retrial, as witnesses' memories fade or

witnesses become unavailable. New trials might never be held, for

reasons unrelated to the merits of the case. Rather than affording

respect and finality to state proceedings, such a reading of the

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statute would lead to new burdens on the states through increased

filings of motions to vacate, and would upset finality.5

We acknowledge that there may be situations in which our

reading of this one year period of limitation in § 2255(4) would

arguably work an injustice. As the Supreme Court noted in Lackawanna

County, 121 S. Ct. at 1575, there may be cases of federal prisoners

who, at the time of federal sentencing, were actually innocent of the

state crime for which they had been convicted. It may be that such

prisoners do not become aware of facts and could not reasonably in the

exercise of due diligence have become aware of facts to prove their

innocence until later. And it may be that once they discover such

facts they move promptly in state court to vacate the conviction but

they are unable to obtain a state decision vacating the conviction

5 In the pre-AEDPA era, this Court in Pettiford held that
a prisoner may use § 2255 to challenge a federal sentence that
had been enhanced by Massachusetts state convictions that were
vacated after federal sentencing. This conclusion was reached
although the vacating of the state court decisions there appear
to have been based on the absence of records that had been
destroyed, and on what was thought to be the Commonwealth’s
burden to prove that the procedures were regular. Pettiford,
101 F.3d at 202. Pettiford did not, of course, construe the
limitation period language in AEDPA, but it did anticipate that
AEDPA’s limitations period would resolve the problem posed. 101
F.3d at 202 n.2. The Court noted that the one year limitation
period would eliminate the possibility of prisoners
"sandbagging" the government by having their state convictions
vacated long after federal sentencing has taken place.

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until more than one year after they learn of the facts, and so cannot

bring a petition within the time limit in § 2255(4).6

In situations of potential injustice, there may be

mechanisms, both before and after the federal sentencing, which act as

safety valves. For example, when there are pending state proceedings

to vacate state convictions instituted before the federal sentence is

imposed, it would be within the power of the federal sentencing judge

to continue the sentencing hearing for a reasonable period to permit

the conclusion of the state court proceedings. See Fed. R. Crim. P.

32(a) ("The time limits prescribed [for sentencing] may be either

shortened or lengthened for good cause."); see also United States v.

Ottens, 74 F.3d 357, 359 (1st Cir. 1996) (the district court judge has

wide discretion in granting a sentencing continuance).

Alternatively, petitioners could argue for a rule of

equitable tolling under § 2255. The First Circuit has yet to adopt

such a rule, Trenkler, 2001 WL 1215366 at *6, but equitable tolling

under § 2255 has been adopted by several circuits in cases where

claimants file late petitions because of extraordinary circumstances.

See Dunlap v. United States, 250 F.3d 1001, 1008-09 (6th Cir. 2001)

In another context we have acknowledged the possible
unfairness that could result if the gatekeeping requirements
of § 2255 barred relief when a new legal argument does not
become available until after a first petition has been filed
and denied. Sustache-Rivera v. United States, 221 F.3d 8, 12-
18 (1st Cir. 2000), cert. denied, 121 S. Ct. 1364 (2001).

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(adopting standard to apply in § 2255 equitable tolling cases); United

States v. Marcello, 212 F.3d 1005, 1010 (7th Cir.) (holding that "§

2255's period of limitation is not jurisdictional but is instead a

procedural statute of limitations subject to equitable tolling."),

cert. denied, 531 U.S. 878 (2000); Sandvik v. United States, 177 F.3d

1269, 1271 (11th Cir. 1999) ("[T]here is every indication that § 2255's

deadline is a garden-variety statute of limitations, and not a

jurisdictional bar that would escape equitable tolling.").

However, we do not reach the issue of whether this Circuit

should adopt the doctrine of equitable tolling because the defendant

here did not present an argument of equitable tolling and so it is

waived. Even were equitable tolling not waived, this defendant is no

candidate for equitable tolling. If he was intoxicated at the time of

the 1991 and 1993 convictions or received an inadequate colloquy, he

knew it then. Moreover, in contrast to a more sympathetic candidate

for equitable tolling who acts with "reasonable diligence throughout

the period he seeks to toll," Brackett sat on his hands for a great

many years. McGinnis, 208 F.3d at 17-18 (outlining the Second

Circuit's requirements for equitable tolling of the limitations period

in § 2255); see also Delaney, 264 F.3d at 14 (the diligence of the

party pursuing judicial remedies may be a factor in deciding whether

equitable tolling applies). Further, the only state decisions

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reviewing the merits of his attempts to vacate his convictions resulted

in denials of his claim.

That Brackett even has an argument here is a situation that

was brought about by the defendant and the prosecutor agreeing to

vacate the prior state conviction, years after the records of his

conviction were destroyed. We do not know why the prosecution agreed

-- perhaps it was inertia. But nothing about his case suggests that

the equities are in Brackett’s favor. Cf. Jamison v. United States,

244 F.3d 44, 48 (1st Cir. 2001) (under circumstances where defendant

never disputed that he committed the crime and his case was only

dismissed because he fled the jurisdiction "counting the [state]

conviction is not even remotely an injustice").

Affirmed.

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