1998 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

4-23-1998

United States v. Midgley

Precedential or Non-Precedential:

Docket 97-7402

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1998

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 1998 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"United States v. Midgley" (1998). 1998 Decisions. Paper 87.

http://digitalcommons.law.villanova.edu/thirdcircuit_1998/87
Filed April 23, 1998 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

No. 97-7402 

UNITED STATES OF AMERICA, 

 Appellant 

v. 

RAYMOND M. MIDGLEY 

On Appeal from the United States District Court 

for the Middle District of Pennsylvania 

(D.C. Criminal Action No. 91-cr-00169) 

Argued January 29, 1998 

Before: SCIRICA, ROTH and RENDELL, Circuit Judges 

(Opinion filed April 23, 1998) 

 David M. Barasch 

 United States Attorney 

 Bruce Brandler (Argued) 

 Assistant U.S. Attorney 

 U.S. Attorney's Office, Federal 

 Building 

 228 Walnut Street 

 P.O. Box 11754 

 Harrisburg, PA 17108 

 Attorneys for Appellant 
 James V. Wade, Esquire 

 Federal Public Defender 

 Daniel I. Siegel, Esquire (Argued) 

 Assistant Federal Public Defender 

 Middle District of Pennsylvania 

 100 Chestnut Street, Suite 306 

 Harrisburg, PA 17101 

 Attorneys for Appellee 

OPINION OF THE COURT 

ROTH, Circuit Judge: 

The United States appeals from an order entered by the 

U.S. District Court for the Middle District of Pennsylvania, 

denying a motion to reinstate dismissed counts of an 

indictment against the appellee, Raymond Midgley. The 

government had dismissed the counts after Midgley pled 

guilty to one charge of the indictment pursuant to a plea 

agreement. Midgley subsequently made a successful 

collateral attack on his conviction. The district court denied 

reinstatement of the dismissed counts on the grounds that 

the statute of limitations had run. In seeking reversal, the 

government asks us to resolve a conflict among our district 

courts as to whether dismissed counts of an indictment 

may be reinstated under these circumstances. The district 

court had jurisdiction under 28 U.S.C. S 2255, and we have 

appellate jurisdiction pursuant to 28 U.S.C. S 1291. 

Because we find insufficient grounds for withholding 

application of the statute of limitations, we will affirm the 

order of the district court. 

I. FACTS 

On September 3, 1991, a federal grand jury returned an 

indictment against Raymond Midgley, charging six counts 

of controlled substance and firearms violations. Included in 

the indictment was a charge that Midgley had used or 

carried a firearm during and in relation to a drug trafficking 

crime in violation of 18 U.S.C. S 924(c).1 Prior to trial, 

_________________________________________________________________ 

1. An investigation had revealed that Midgley was involved in drug 

trafficking, and that he carried firearms during drug sales. During 

 2 
Midgley entered into a plea agreement with the government 

in which he agreed to plead guilty to the count of violating 

S 924(c) in exchange for dismissal of the remaining counts 

of the indictment.2 The agreement contained no provision 

for waiver of Midgley's statute of limitations defense as to 

the counts to be dismissed. Midgley entered his guilty plea 

and was sentenced on October 5, 1992, to five years

imprisonment, the statutory minimum. The government

dismissed the remaining counts of the indictment on the 

same day. Midgley was incarcerated on October 23, 1992, 

and commenced service of his sentence. 

On December 6, 1995, the United States Supreme Court 

held in Bailey v. United States, 516 U.S. 137 (1995), that in 

order to establish that a defendant "used" afirearm within 

the meaning of S 924(c), the government must show not 

mere possession, but active employment of the firearm by 

the defendant. On May 23, 1996, some 5 years and 3 

months after commission of his offenses, Midgleyfiled a 

motion pursuant to 28 U.S.C. S 2255 to vacate his sentence 

in light of Bailey. Although the government conceded that 

_________________________________________________________________ 

execution of a search warrant at his residence, a handgun was found 

among drugs and drug paraphernalia. The sixth count of Midgley's 

indictment charged a violation of 18 U.S.C. S 924(c)(1), which provides: 

 Whoever, during and in relation to any crime of violence or drug 

 trafficking crime . . . for which he may be prosecuted in a court 

of 

 the United States, uses or carries a firearm, shall, in addition to 

the 

 punishment provided for such crime of violence or drug trafficking 

 crime, be sentenced to imprisonment for five years. . . . 

2. Count I charged that Midgley distributed heroin on or about December 

14, 1990, in violation of 21 U.S.C. S 841(a)(1). Count II charged that 

Midgley distributed marijuana on or about February 10, 1991, in 

violation of 21 U.S.C. S 841(a)(1). Count III charged that Midgley 

distributed L.S.D. on or about February 11, 1991, in violation of 21 

U.S.C. S 841(a)(1). Count IV charged that Midgley possessed marijuana 

with the intent to distribute on or about February 11, 1991, in violation 

of 21 U.S.C. S 841(a)(1). Count V charged that Midgley, a previously 

convicted felon, possessed a .38 caliber handgun on or about February 

11, 1991, in violation of 18 U.S.C. S 922(g)(1). Count VI, to which 

Midgley had pled guilty, charged that he violated 18 U.S.C. S 924(c) by 

using and carrying a firearm during and in relation to a drug trafficking 

crime on or about February 11, 1991. 

 3 
Bailey required Midgley's sentence to be vacated, it 

requested that the court reinstate the dismissed counts of 

his original indictment. The U.S. District Court for the 

Middle District of Pennsylvania, Kosik, J., granted Midgley's 

S 2255 motion but refused to reinstate the dismissed 

counts. In a Memorandum Opinion dated March 11, 1997, 

No. 96-7494, we affirmed the order but stated that the 

disposition was "without prejudice to whatever rights the 

government may have to pursue in the district court its 

application to reinstate the dismissed counts of Midgley's 

indictment and without prejudice to Midgley's right to raise 

the statute of limitations in opposition to that motion or a 

new indictment." On March 21, 1997, the government filed 

a motion to reinstate the dismissed counts which the 

district court denied on July 31, 1997. The government 

now appeals. 

II. DISCUSSION 

Our review of a district court's legal determinations and 

its application of legal precepts to facts is plenary. Epstein 

Family Partnership v. KMart Corp., 13 F.3d 762, 766 (3d 

Cir. 1994). 

The general federal statute of limitations applies to all 

offenses charged in Midgley's indictment. That statute 

provides: 

 Except as otherwise expressly provided by law, no 

 person shall be prosecuted, tried, or punished for any 

 offense, not capital, unless the indictment is found or 

 the information is instituted within five years next after 

 such offense shall have been committed. 

18 U.S.C. S 3282 (1994). On appeal, the government asks 

us to hold that this statute does not prevent reinstatement 

of any or all of the five dismissed counts of the original 

indictment against Midgley, notwithstanding that more 

than five years have elapsed since the commission of the 

underlying offenses. The government argues alternatively 

that (1) the literal terms of the statute do not apply to 

counts which are brought within five years, dismissed, and 

then reinstated; (2) the statute should be tolled under 

principles of contract law and equity because Midgley 

breached the plea agreement; and (3) the statute should be 

 4 
tolled as a matter of policy in order to prevent abuse of the 

plea bargain process. Whether the statute of limitations 

prevents reinstatement of dismissed counts of an 

indictment when the defendant's guilty plea conviction is 

vacated is a question of first impression before this Court. 

Two district judges in the Middle District of Pennsylvania 

have addressed this issue prior to the case sub judice, with 

contrary results. In United States v. Gaither, 925 F. Supp. 

50 (M.D. Pa. 1996) (Rambo, C.J.), the defendant, pursuant 

to a written plea agreement, pled guilty in 1990 to violating 

S 924(c). In 1996, after the defendant's conviction was 

vacated under Bailey, the government sought to reinstate a 

dismissed count of the original indictment. Despite

sympathy for the government's position that the defendant 

would "reap a windfall" by evading the dismissed charge, 

the court maintained that the "overwhelming concern" of 

the policy underlying the statute of limitations was 

protection of the accused. For this reason, the court 

refused to toll the statute. 925 F. Supp. at 53-54. Only 

weeks later, however, in United States v. Viera, 931 F. 

Supp. 1224 (M.D. Pa. 1996) (Caldwell, J.), another judge in 

the same district held on nearly identical facts3 that the 

government could reinstate dismissed charges after 

expiration of the limitation period where the government 

was "not at fault" and "the defendant has upset what the 

government reasonably understood to be a final disposition 

of a criminal matter." 931 F. Supp. at 1230-31. 

Much of the analysis in Gaither was embraced by the

Second Circuit in United States v. Podde, 105 F.3d 813 (2d 

Cir. 1997), vacating United States v. Reguer, 901 F. Supp. 

525 (E.D.N.Y. 1995). In Podde, nearly nine years after the 

alleged misconduct, the defendant's guilty plea conviction 

for structuring financial transactions under 31 U.S.C. 

S 5313 was reversed. The government then sought to 

reinstate dismissed charges of conspiracy and wire fraud. 

Podde, 105 F.3d at 815. In vacating a district court order 

_________________________________________________________________ 

3. In Viera, after the defendant's conviction was vacated in light of 

Bailey, the government in 1996 requested reinstatement of two 

dismissed counts based on acts committed in May of 1990. 931 F. Supp. 

at 1226. 

 5 
permitting reinstatement, the Second Circuit rejected 

arguments similar to those offered by the government here 

in favor of the rule that the statute of limitations applies to 

counts of an indictment dismissed pursuant to a plea 

agreement and that the statute is not tolled following 

vitiation of the agreement merely because the government 

"acts diligently and without fault." Id. at 819. 

A. Applicability of the Statute of Limitations 

Section 3282 itself does not indicate whether the 

limitation period applies to reinstated counts of an 

indictment which was originally "found" within five years. 

The government maintains that a district court may simply 

vacate the order dismissing the original indictment, at 

which point "the indictment becomes pending as though it 

had never been dismissed." In this posture, the statute of 

limitations would be inapplicable on its face, and the result 

that follows would comport with the policy objectives 

behind the statute. We disagree with both contentions. 

A statute of limitations "limit[s] exposure to criminal 

prosecution to a certain fixed period of time following the 

occurrence of " criminal acts. Toussie v. United States, 397 

U.S. 112, 114 (1970). Limitations are "designed to protect 

individuals from having to defend themselves against 

charges when the basic facts may have become obscured by 

the passage of time and to minimize the danger of official 

punishment because of acts in the far-distant past." Id. at 

114-15. "Limitations statutes . . . are intended to foreclose 

the potential for inaccuracy and unfairness that stale 

evidence and dull memories may occasion in an unduly 

delayed trial." United States v. Levine, 658 F.2d 113, 127 

(3d Cir. 1981) (emphasis in original). 

In order to adhere to this mandate and still determine 

that a dismissed indictment is "found" within the meaning 

of S 3282, it would be necessary to conclude that a

defendant could never be prejudiced in his defense by the 

delay in prosecution that occurs between the times of 

dismissal and reinstatement. Yet this proposition is 

inherently unsound, because any statute of limitations 

incorporates an "irrebuttable presumption" that, beyond 

 6 
the period of limitation, "a defendant's right to a fair trial 

would be prejudiced." United States v. Marion, 404 U.S. 

307, 322 (1971). Absent a statute of limitations, an 

indefinite suspension of prosecution impairs a defendant's 

constitutional rights and prolongs the defendant's "anxiety 

and concern" over the pending charges. See Klopfer v. North 

Carolina, 386 U.S. 213, 222 (1966) (holding State's nolle 

prosequi procedure to be an unconstitutional violation of 

right to speedy trial where statute of limitations was tolled 

during pendency). 

Other circuit courts faced with this issue have held that 

the terms of S 3282 do apply to dismissed counts of an 

indictment which was brought within the limitation period. 

Podde, 105 F.3d at 818 (holding that "the statute of 

limitations begins to run again once an indictment is 

dismissed"); United States v. Davis, 487 F.2d 112, 118 (5th 

Cir. 1973) (applying Klopfer, and holding that dismissal of 

criminal charges "does not impair the protection afforded 

by the statute of limitations," which is a defendant's 

"primary protection" against prosecutorial delay). We agree 

that, for purposes of S 3282, counts of an indictment do not 

survive a dismissal. We therefore reject the government's 

position that the statute does not apply to reinstatement of 

dismissed counts. 

This conclusion is particularly compelling when we 

examine the policy goals served by a statute of limitations. 

The government argues that reinstatement of the dismissed 

counts would be faithful to the policy concerns underlying 

the statute because (1) the initial indictment against 

Midgley fulfilled the objective of providing notice to the 

defendant, (2) no concerns of prosecutorial unfairness or 

dilatory conduct are implicated, and (3) any remaining 

concerns involving protection of the defendant do not apply 

where the defendant "created the problem."4 

_________________________________________________________________ 

4. Bailey was decided in December of 1995, approximately three months 

prior to the expiration of the limitation period applicable to Midgley's 

dismissed counts. The government suggests that it is no coincidence that 

Midgley delayed filing his S 2255 petition until May of 1996, three 

months after the limitation period had run. We express no opinion as to 

whether Midgley's delay "created the problem" here.

 7 
The government is correct that giving notice to the

defendant and discouraging prosecutorial delay are both 

important policies served by a statute of limitations. We do 

not disagree that those goals would still be fulfilled were 

reinstatement of the dismissed charges permitted here. Yet 

in terms of policy, our primary focus must be upon the 

defendant. While the Supreme Court stated in Toussie that 

"several considerations" formed the policy basis of a statute 

of limitations, it explained first that the limitation protects 

the accused "from having to defend themselves against 

charges when the basic facts may have become obscured by 

the passage of time," and added that the time limit "may 

also have the salutary effect of encouraging law 

enforcement officials promptly to investigate suspected 

criminal activity." Toussie, 397 U.S. at 114-15 (internal 

quotations and citations omitted) (emphasis added).

Following Toussie, the Court instructed us in Marion that 

 the applicable statute of limitations is the primary 

 guarantee against bringing overly stale criminal 

 charges. Such statutes represent legislative

 assessments of relative interests of the State and the 

 defendant in administering justice; they are made for 

 the repose of society and the protection of those who 

 may during the limitation have lost their means of 

 defence. 

Marion, 404 U.S. at 322 (internal quotations, citations, 

brackets, ellipses and footnotes omitted). 

In evaluating Toussie and Marion, the Second Circuit 

concluded that the statute of limitations "exists primarily to 

protect the rights of the defendant," and the fact that a 

defendant's guilty plea conviction was later vacated by a 

Supreme Court decision "in no way affects the fact that his 

defense to the original charges may have been jeopardized 

by the passage of time." 105 F.3d at 819-20. We agree that 

the primary purpose of the statute of limitations is to 

protect the ability of the accused to present an effective 

defense to the charges against him. Consequently, applying 

 8 
the terms of S 3282 to dismissed counts of an indictment 

best fulfills that objective.5 

B. Tolling 

The government next argues that, even if the statute of 

limitations applies to reinstated counts, the statute should 

be tolled because Midgley breached his plea bargain

agreement. In exchange for Midgley's guilty plea to one 

charge, the United States dismissed the five other charges 

it now seeks to reinstate. According to the government, by 

successfully moving to vacate his guilty plea conviction, 

Midgley has "revoked his acceptance" of the plea agreement 

and the government should be free to withdraw its part of 

the bargain. See United States v. Reguer, 901 F. Supp. 525, 

529 (E.D.N.Y. 1995), vacated, United States v. Podde, 105 

F.3d 813 (2d Cir. 1997). The government thus seeks an 

equitable restoration of the parties to the status quo ante by 

a tolling of the statute of limitations from the time of the 

dismissal order. 

We have observed that criminal statutes of limitations are 

subject to tolling, suspension, and waiver. United States v. 

Levine, 658 F.2d 113, 119-121 (3d Cir. 1981). Equitable 

tolling of a statute of limitations may apply where a 

complaint succeeds a filing deadline through either the 

complainant's benign mistake or an adversary's 

misconduct. Irwin v. Department of Veterans Affairs, 498 

U.S. 89, 96 (1990). "[E]quitable tolling may be appropriate 

if (1) the defendant has actively misled the plaintiff, (2) if 

the plaintiff has "in some extraordinary way" been 

prevented from asserting his rights, or (3) if the plaintiff has 

timely asserted his rights mistakenly in the wrong forum." 

Kocian v. Getty Refining & Marketing Co., 707 F.2d 748, 

753 (3d Cir. 1983) (citations omitted). Although the doctrine 

of equitable tolling is most typically applied to limitation 

periods on civil actions, see Irwin, 498 U.S. at 95, "there is 

no reason to distinguish between the rights protected by 

_________________________________________________________________ 

5. Because we hold that the dismissed counts may not be reinstated, we 

need not reach the issue of whether facts admitted to by Midgley in his 

guilty plea to Count VI might constitute admissions as to elements of 

these other offenses. 

 9 
criminal and civil statutes of limitations." Powers v. 

Southland Corp., 4 F.3d 223, 233 (3d Cir. 1993). 

Federal courts invoke the doctrine of equitable tolling 

"only sparingly," and will not toll a statute because of "what 

is at best a garden variety claim of excusable neglect" on 

the part of the defendant. Irwin, 498 U.S. at 96. Absent a 

showing of intentional inducement or trickery by the 

defendant, a statute of limitations should be tolled only in 

the "rare situation where equitable tolling is demanded by 

sound legal principles as well as the interests of justice." 

Alvarez-Machain v. United States, 96 F.3d 1246, 1251 (9th 

Cir. 1996) (tolling two-year limitation period for actions 

against the U.S. under the Federal Tort Claims Act where 

the plaintiff, a foreign national, had been incarcerated in 

the U.S. for over two years); Lewis v. United States, 985 F. 

Supp. 654, 657 (S.D. W. Va. 1997) (finding circumstances 

"sufficiently extraordinary" to warrant equitable tolling of 

new one-year statute of limitations for relief under 28 

U.S.C. S 2255 where information charging defendant was 

"negligently and carelessly prepared" and the government 

delayed other remedial action). Thus, the government's 

tolling argument here depends on a finding that Midgley's 

"breach" of the plea agreement, if indeed it can be so 

characterized, prevented the government in an 

"extraordinary way" from exercising its right to prosecute 

him on the dismissed counts. 

In our consideration of tolling, we find it unnecessary to 

engage, as other courts have, in an analysis of the

defendant's conduct under contract principles. See, e.g., 

Podde, 105 F.3d at 820 (finding defendant certainly voided, 

and may well have breached, the plea agreement, yet

remaining "suspicious of the application of contract law 

doctrine in favor of the prosecution"); United States v. 

Anderson, 514 F.2d 583, 587 (7th Cir. 1975) (finding 

vacated conviction removed "condition precedent" to

government's agreement not to prosecute on dismissed 

charges); Gaither, 926 F. Supp. at 51-52 (finding 

defendant's successful collateral attack on sentence more 

analogous to a discharge of performance by supervening 

impracticability). A party aggrieved by a breach of contract 

is not entitled per se to relief from a statutory limitation 

 10 
period. Even assuming that Midgley "breached" his 

agreement here, equitable tolling is appropriate only if the 

breach constituted an "extraordinary" interference with the 

government's ability to assert its rights. 

Midgley alone did not create the situation of which the 

government complains. Had it not been for the Supreme 

Court's decision in Bailey, he would have had no 

opportunity to "breach" his plea agreement while avoiding 

prosecution on the remaining charges. While the 

government makes much of Midgley's three month delay in 

filing his S 2255 petition, we cannot say that Midgley did 

not simply take advantage of a serendipitous circumstance 

created by others. Although Midgley may in fact have 

frustrated the government's purpose, he did not solely by 

his own design contrive a "rare situation where equitable 

tolling is demanded by sound legal principles." 

Moreover, our conclusion here does not depend upon an 

evaluation of the relative equity or good faith exhibited by 

the parties. Congress has the authority to make a"good 

faith" exception to S 3282, yet has declined to do so. See 

Podde, 105 F.3d at 820; Gaither, 926 F. Supp. at 54. While 

the government has pursued its rights here with diligence 

and good faith, it is not entitled to equitable tolling of the 

statute of limitations merely because it is without fault. 

C. Potential for Abuse 

Lastly, the United States contends that if we fail to create 

an exception to the statute under the circumstances of this 

case, defendants will be encouraged to "sit on their rights 

until the statute has expired on the remaining charges," 

thus encouraging "gamesmanship of a most offensive 

nature."6 Although it stops short of accusing Midgley 

himself of bad faith, the government maintains that Midgley 

"created the statute of limitations problem" here by delaying 

the filing of his S 2255 motion until after the expiration of 

_________________________________________________________________ 

6. The government borrows this phrase from United States ex rel. 

Williams v. McMann, 436 F.2d 103 (2d Cir. 1970), where it was held that 

reinstatement of an indictment should be permitted during the 

limitations period. 

 11 
the five-year period. The government urges that the inequity 

of Midgley's tactics, compared to its own diligence in 

prosecution, warrants tolling of the statute from at least the 

date of the Bailey decision. While we agree that the 

government has not been at all dilatory and that Midgley 

has in fact upset what the government "reasonably 

understood to be a final disposition of the matter," we 

nonetheless decline to fashion a tolling rule on this basis. 

First, as the Podde court observed, the government may 

seek to include a clause in future plea agreements whereby 

the defendant waives the statute of limitations defense as to 

dismissed counts if the defendant withdraws or challenges 

the guilty plea after the limitations period on the original 

charges has expired.7 Podde, 105 F.3d at 821. The 

government may also in the future negotiate a guilty plea to 

more than one count. Moreover, the "potential for abuse" 

complained of here is now substantially reduced because of 

a recent statutory amendment imposing a limitation period 

for petitions brought under 28 U.S.C. S 2255.8 Because a 

_________________________________________________________________ 

7. See Levine, 658 F.2d at 120-21 ("It is also possible for a defendant 

knowingly and intelligently to waive the statute of limitations, thus 

sanctioning a later indictment which, absent such a waiver, would be 

untimely"); United States v. Meeker, 701 F.2d 685, 688 (7th Cir. 1983) 

("The purposes of a time bar are not offended by a knowing and 

voluntary waiver of the defense by the defendant"). The validity of such 

waivers is not, however, a question before us, and we will not, therefore, 

decide it. 

8. The Antiterrorism and Effective Death Penalty Act of 1996 adds the 

following to 28 U.S.C. S 2255: 

 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 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 

 12 
habeas petition must now be filed not later than one year 

after an intervening change in the law, it is only when less 

than one year remains of the limitation period on the 

dismissed counts that a defendant can delay filing until 

after this limitation period has run. 

Finally, we must not forget that "criminal limitation 

statutes are to be liberally interpreted in favor of repose." 

Toussie, 397 U.S. at 115 (quoting United States v. Habig, 

390 U.S. 222, 227 (1968)). Section 3282 establishes a fixed 

limitation period with no exception. However tempting it 

may be to create equitable exceptions to bright line rules, 

we must concur with Chief Judge Rambo's observation in 

Gaither that "the very existence of a statute of limitations 

entails the prospect that wrongdoers will benefit," and that 

this reason alone cannot serve as the basis for an exception 

to the statute. Ultimately, the clear and unambiguous rule 

afforded by the criminal statute of limitations is preferable 

to a shifting standard based on the perceived equity of the 

defendant's conduct. While Congress and the courts may 

continue to weigh competing policy interests concerning the 

administration of justice, the unqualified limitation period 

of S 3282 reflects a balance that has already been struck. 

III. CONCLUSION 

For the foregoing reasons, we will affirm the order of the 

district court denying the government's motion to reinstate 

charges against the appellee. 

A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

_________________________________________________________________ 

 (4) the date on which the facts supporting the claim or claims 

 presented could have been discovered through the exercise of due 

 diligence. 

Pub. L. No. 104-132, S 105, 110 Stat. 1214, 1220 (codified as amended 

at 28 U.S.C. S 2255) (Apr. 24, 1996) (emphasis added). 

 13