NOT PRECEDENTIAL*

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 12-4493

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UNITED STATES OF AMERICA

v.

DION DAKOTA JOHNSON,

 Appellant

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On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. No. 09-cr-00064-003)

District Judge: Honorable A. Richard Caputo

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Argued September 10, 2014

Before: FISHER, JORDAN and HARDIMAN, Circuit Judges.

(Filed: October 22, 2014)

*This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does not 

constitute binding precedent.

Christian A. Fisanick, Esq. [Argued]

Office of United States Attorney

235 North Washington Avenue

P.O. Box 309, Suite 311

Scranton, PA 18503

Stephen R. Cerutti, II, Esq.

Michael A. Consiglio, Esq.

Office of United States Attorney

228 Walnut Street, P.O. Box 11754

220 Federal Building and Courthouse
2

Harrisburg, PA 17108

Attorneys for Plaintiff-Appellee

Sarah S. Gannett, Esq. [Argued]

Federal Community Defender Office for the Eastern District of Pennsylvania

601 Walnut Street

The Curtis Center, Suite 540 West

Philadelphia, PA 19106

Attorneys for Defendant-Appellant

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OPINION

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HARDIMAN, Circuit Judge.

Dion Johnson appeals an order denying his motion for leave to file a motion 

pursuant to 28 U.S.C. § 2255 to vacate his conviction or correct his sentence. The United 

States District Court for the Middle District of Pennsylvania denied Johnson leave to file 

on the grounds that his motion was untimely and did not merit equitable tolling of the 

statute of limitations. Because we conclude that Johnson’s claim for relief warrants 

additional factual development, we will vacate the District Court’s order and remand the 

matter for further proceedings.

I

This appeal, like all appeals pertaining to § 2255 motions, has its origins in a 

federal criminal prosecution. In January 2009, Johnson participated in two gang-related 

armed robberies in the Harrisburg area. Following indictment by a grand jury, he pleaded 

guilty in the District Court to conspiring to commit Hobbs Act robbery, 18 U.S.C. 
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§ 1951, and brandishing a firearm in furtherance of a crime of violence, 18 U.S.C. 

§ 924(c). In April 2010, the District Court sentenced Johnson to 132 months’ 

imprisonment, to be followed by five years of supervised release. Judgment was entered 

against Johnson on May 4, 2010, so his deadline for appealing was May 18, 2010. See

Fed. R. App. P. 4(b)(1)(A)(i). Because Johnson did not file a notice of appeal, his 

judgment became final on May 19, 2010. See Kapral v. United States, 166 F.3d 565, 577 

(3d Cir. 1999).

In October 2010, the District Court sent Johnson a copy of his docket sheet. The 

docket also reflects that Johnson requested another copy of the docket sheet in August 

2011. On January 10, 2012, the Clerk of the Court of Appeals for the Third Circuit wrote 

Johnson a letter, apparently in response to an inquiry from Johnson’s girlfriend, 

informing him that he never had an appeal pending in the Third Circuit. In a letter to the 

District Court postmarked January 24, 2012, Johnson requested permission to file a 

§ 2255 motion, despite the expiration of the default one-year statute of limitations on 

May 19, 2011. See § 2255(f)(1) (the one-year limitations period begins when the 

conviction becomes final). Johnson said he had been using medication at the time of his 

plea and sentencing that had made him “very unaware of the critical circumstances to 

both [his] appeal and 2255.” App. at 66. He also alleged that his lawyer, Rex Bickley, 

failed to file a direct appeal despite saying he would do so.
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The District Court construed Johnson’s submission as a motion for leave to file a 

§ 2255 motion out of time and ordered him to submit a brief explaining why he was 

entitled to equitable tolling of the statute of limitations. Between April and June 2012, 

Johnson wrote to the District Court several more times, culminating in his submission of 

a pro se brief and exhibits in support of his motion for leave to file. Johnson appeared to 

argue that he was entitled to relief for two reasons: (1) Bickley had neglected to file an 

appeal despite being asked to do so, and (2) Johnson’s mental condition had prevented 

him from discovering until recently that an appeal had not been filed and a § 2255 motion 

was his only recourse. In his brief, Johnson specifically alleged that he had called and 

written Bickley after the sentencing seeking further information about his appeal but 

received no response. And in support of his claim that his mental condition and use of 

“psychotropic medication[s]” justified an extension of time, Johnson submitted a list of 

the drugs he had been prescribed since being incarcerated and an excerpt from his 

Presentence Investigation Report (PSR) describing his history of mental illness, suicide 

attempts, and auditory hallucinations.1 App. at 90.

The District Court denied Johnson leave to file out of time, holding that he failed 

to show: “(1) that he has been pursuing his rights diligently, and (2) that some 

 

1 According to the list submitted to the District Court, Johnson was prescribed 

various antidepressants and one antipsychotic medication between August 2010 and 

January 2012. Johnson’s opening brief on appeal states that the side effects of these drugs 

include “confusion” and hallucinations. Johnson Br. 12–13 nn.6–10.
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extraordinary circumstance stood in his way.” Pace v. DiGuglielmo, 544 U.S. 408, 418 

(2005). Even if Bickley’s failure to file an appeal constituted an extraordinary 

circumstance, the Court held, Johnson did not “present any evidence that he exercised 

due diligence in the face of his lawyer’s alleged inaction.” United States v. Johnson, No. 

1:09-CR-64, 2012 WL 4482740, at *2 (M.D. Pa. Sept. 27, 2012). The Court highlighted 

Johnson’s failure to ask the Court of Appeals about his case until January 2012 and stated 

that Johnson had shown “no correspondence with his lawyer” and had made “no 

allegations of telephone calls by him to his lawyer.” Id. The Court also dismissed 

Johnson’s mental-health argument, finding “nothing in the record concerning his mental 

condition that suggests the needed connection between his condition due to medication 

and [his] inaction.” Id. We provisionally granted Johnson a certificate of appealability. 

II

A

The District Court had jurisdiction over Johnson’s original criminal case pursuant 

to 18 U.S.C. § 3231 and, under 28 U.S.C. § 2255, had jurisdiction over his motion for 

leave to file a § 2255 motion. See United States v. Thomas, 713 F.3d 165, 169 (3d Cir. 

2013). We have jurisdiction under 28 U.S.C. § 1291, having provisionally granted a 
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certificate of appealability under 28 U.S.C. § 2253(c)(1)(B). Our review of a district 

court’s ruling on the timeliness of a § 2255 motion is plenary.2

B

Before we review the District Court’s denial of Johnson’s motion, a brief 

overview of the § 2255 statute of limitations is in order. Subsection 2255(f) imposes a 

one-year limitations period on motions that begins on the latest of four possible dates, 

only one of which is relevant to this appeal: “the date on which the facts supporting the 

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

diligence.” § 2255(f)(4).3In other words, the prisoner has one year to file from the date 

on which he should have discovered the facts underlying the claims made in the § 2255 

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

In addition, the § 2255 statute of limitations, like the habeas statute of limitations, 

is subject to equitable tolling. Miller v. N.J. State Dep’t of Corrs., 145 F.3d 616, 619 n.1 

 

2 Thomas noted that this Court had not previously “had the opportunity to 

determine the appropriate standard of review” for evaluating denials of motions for leave 

to file § 2255 motions, and Thomas did not take that opportunity. 713 F.3d at 174. We 

have established, however, that our review of dismissals of habeas corpus petitions as 

untimely is plenary. See Merritt v. Blaine, 326 F.3d 157, 161 (3d Cir. 2003) (citing Nara 

v. Frank, 264 F.3d 310, 314 (3d Cir. 2001)). The statutes of limitations for § 2255 

motions and habeas petitions are very similar, both having been imposed by the 

Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Clay v. United States, 

537 U.S. 522, 528 (2003). It is therefore appropriate that we apply the same standard of 

review to timeliness-based denials of habeas petitions and § 2255 motions. 
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(3d Cir. 1998). As the District Court correctly noted, equitable tolling requires a § 2255 

movant to show (1) that he faced “extraordinary circumstances that stood in the way of 

timely filing,” and (2) that he exercised reasonable diligence. Pabon v. Mahanoy, 654 

F.3d 385, 399 (3d Cir. 2011) (citing Pace, 544 U.S. at 418). Although the due diligence 

requirements of both § 2255(f)(4) and equitable tolling are fundamentally objective tests, 

those analyses must include consideration of the prisoner’s particular circumstances. See 

Wims, 225 F.3d at 190; Pabon, 654 F.3d at 399.

C

In this case, the record before the District Court was insufficiently developed for 

proper disposition of Johnson’s request for leave to file, making the Court’s denial of his 

motion premature. In finding that Johnson had not exercised the diligence required to 

warrant equitable tolling, the Court focused almost exclusively on Johnson’s failure to 

contact the Court of Appeals until January 2012. Although this troubling fact is relevant 

to Johnson’s exercise of due diligence, the Court neglected to acknowledge other aspects 

of Johnson’s claims that might entitle him to relief. First, the Court erroneously stated 

that Johnson had never alleged that he attempted to contact his attorney, Bickley. 

Johnson, 2012 WL 4482740, at *2. Johnson claimed in his brief to the District Court that 

he had called and written to Bickley concerning “the whereabouts of his appeal” to no 

 

3 There is no dispute that the default limitations period of § 2255(f)(1), measuring 

one year from “the date on which the judgment of conviction becomes final,” elapsed 

months before Johnson sought leave to file.
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avail. App. at 89. Second, the Court did not appear to consider the docket sheet requests 

of October 2010 and August 2011, which Johnson may have made in an effort to 

determine the status of his appeal. Third, the Court found that there was nothing in the 

record to demonstrate a link between Johnson’s mental condition and his failure to file a 

timely § 2255 motion, even though Johnson had repeatedly claimed that his medication 

had impaired his ability to think clearly during the relevant post-conviction period, see, 

e.g., App. at 66–67, 77, and had submitted excerpts from his PSR documenting his 

apparently severe mental health history, App. at 106–07. Finally, the Court missed 

altogether the possibility that Johnson’s efforts to file a § 2255 motion were timely under 

the discovery rule of § 2255(f)(4), making equitable tolling potentially unnecessary.

None of this means, of course, that Johnson is entitled to file a § 2255 motion, and 

it certainly does not mean that such a motion would ultimately succeed. Rather, we 

simply hold that the District Court’s denial of Johnson’s motion for leave to file was 

based on an insufficiently developed record. Without findings of fact concerning the 

matters we have discussed—and any other matters that the District Court may find 

relevant—it was error to conclude that Johnson’s motion was both untimely under 

§ 2255(f) and undeserving of equitable tolling.

III

In light of the foregoing, we will vacate the District Court’s order and remand for 

further proceedings, which may include written discovery, expansion of the record, an 
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evidentiary hearing, or any other factfinding the District Court deems appropriate. See

Laws v. Lamarque, 351 F.3d 919, 924 (9th Cir. 2003). Upon examination of a more 

complete record, the Court should determine whether Johnson’s request for leave to file a 

§ 2255 motion was timely under § 2255(f)(4) or entitled to equitable tolling of the statute 

of limitations.