### FILED U.S. COURT OF APPEALS ELEVENTH CIRCUIT AUGUST 5, 2003 THOMAS K. KAHN CLERK

* Honorable Walter K. Stapleton, United States Circuit Judge for the Third Circuit, sitting by designation. [PUBLISH]

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH

CIRCUIT

________________________ No. 01-14830

________________________ D. C. Docket No. 01-00014-CV-WDO-7 ROBERT JOHNSON, JR., Petitioner-Appel lant,
versus UNITED STATES OF AMERICA, Respondent-Appellee.

________________________ Appeal from the United States District Court for the Middle Dist

rict of Georgia

_________________________ (August 5, 2003) Before BLACK, RONEY and STAPLETON * , Circuit Judges. BLACK, Circuit Judge:2

This case allows us to clarify the time limits in cases where ca reer offenders indirectly attack their federal sentences by fi rst collaterally

attacking their pri

or state convictions. Federal prisoner Robert Johnson brought

such an indirect attack on his federal sentence, and he

now appeals the distr

ict court’s denia

l of his § 2255 petition as untimely . We issued a ce rtificate of appe

alability on the f

ollowing question: Whether the distri ct court co rrectly deter mined that ap pellant’s motion to vacate, file d pursuant to 28 U.S. C. § 2255, was untim ely under the one-year statute of

lim itations provision in the Antiterrorism

and Effective Dea

th Penalty Act

of 1996. We now conclude Appell ant’s indirect a

ttack on his federal sentence was unt imely, and we there fore a ffirm. I. BACKGROUND Between 1983 and 1994, Appella nt pled guilty to se

veral state c riminal charges. In 1994, he was indic ted a s one of five co-defend ants on federal drug conspiracy

charges, an d he ple d guilty. A pre-sentence investigation report recommended

classifying him as a career offe nder base d on his prior state convictions. Ini tially, Appellant objected to being classed as a career offender without explaining the

basis for his objection. At his sentencing hearing, however, counsel for Appellant

advised the district court that Appellant wis hed to waive all of3

his objectionsto the pre-sentence investigation report. Appellant was sentenced as a career offender and receiv ed 188 months’ imprisonment. Appellant then filed a direct

appeal, contending h

is prior state convic

tion s wer e obtained in violation of his constitutional right to counsel, and he therefore should

not have been sentenced as a career offender. On Dec ember 22, 1 995, we affirmed Ap pellant’s sentence. Our un published order includ

ed the following cav

e at in a footnote: “We note in p assing that, should appellant obtain at so

me future date

the vacation of the state court conviction[s] in question because they were o btaine d in violation of his constitutional rights, he could petition the di strict court under 28 U.S.C. § 2255 for the relief he now asks us to provide.” United States v. J ohnson , No. 94–9402 (11th Cir . D ec. 22, 1995). A ppellant sought certi

orari from the Sup reme Co urt of the United St ates, but the Supre

me Court denie

d his petition on April 22, 1996. Johnson v. United States , 517 U.S. 1162, 116 S. Ct. 1559 (A

pril 22, 1996) (mem.). Just over one year later, on April 25, 1997, Appellan t f iled a motion in th

e district court to ext end th e time to file a § 2255 petitio n. Thedistrict court ruled that Appellant ’s motion was untimely under § 2255 ¶ 6(1). The district co urt did acknowledge

the possibility tha

t exists in every hab eas case , namely, that something migh t transpir e that would permit Appellant to take advantage of one of the later1 We subsequently appointed counse

l to represent App

ellant for this app

eal. 4 accrual dates under § 2255 ¶ 6. It therefore denie d Appellant’s m otion without prejudice. On February 6, 1 998, Appellant file d a state habeas pet

ition challenging

all of his prior state convict

ions on the ground that he had not validly w

aived his right to
couns el in those proceedings. On October 24, 2000, the state court vacated Appellant ’s prior convi c tions. Appellant the n filed the present § 2255 petition on February 13, 2001, asking the di stric t court to vacate his s entence because he no longerqualified as a career offen der. On August

1, 2001, the distric

t court denied the § 2255 petiti on as un timely. We g ranted a certif icate o f appea labili ty, and this appeal followed. 1 II. DISCUSSION As this case involves an indir ect challenge to

a federal sentence via a collateral attack on prior state convic

tions, some bac

kground on the

law of such challenges is helpful. First, in Custis v. United States , 511 U.S. 485, 114 S. Ct. 1732 (1994) , the Supre me Court held

that, during his sente

ncing proceeding,

a federal prisone

r could not attack the validity

of h is prior convictions that raised his maximum sentence underthe Armed Career

Criminal Act, 18 U.S. C. § 924(e); the only exception to this5

rule i s for prior convicti ons based on a deprivat

ion of the right to couns el un de r Gideon v. Wainw

right
. See Custis , 511 U.S. at 496; 114 S. Ct. at 1738. Second, federal prisoners generally cannot attack prior convictions which enhanced their fed

eral sentences in a

§ 2255 proceeding challeng ing the validity of their federal sentence. Daniels v. United States , 532 U.S. 374, 376, 121 S. Ct. 1578, 1580 (2001); see also Lackawanna County D istrict Attorney v. Cross , 532 U.S. 394, 403–04, 121 S. Ct. 1567, 1574 (2001) (r eaching same conclusion for § 2254). If a prior conviction used to enhance a federal sentence is no longer itself open to direct
or collateral at tack, the defendant is gen erally without recourse. Daniels , 532 U.S. at 382, 121 S. Ct. at 158 3. Following Custis, many Circuits including our own hav e author ized indirect attacks on federal

sentences; a defendant may seek to reopen his federal senten

cing pursuant to § 2255 if he has suc cessfull y attacked a pr ior state conviction u

sed to enhance his federal sentence. United States v. Walker , 198 F.3d 811, 813 (11th

Cir. 1999) (per curiam) (citing cases). The effect of these rules has been to redirect challenges to federal sentences from federal courts to stat e courts, where court records may have be

en d estro yed and where state executive off icials often have no interest in defending a conviction for which the defen dant h as already ser ved his sentence.6

With this backgroun

d in mind, we tu

rn to Appellant’s

arguments on app eal. A. Statute of Lim

itations Appellant first argues his § 2255petition, filed Fe bruary 13,2001, was timely under 28 U.S.C.§ 2255 ¶ 6(4). That section provides as f

ollows: A 1-year period

of limitation sha

ll a p ply to a motio

n under this section. The limitation period shall run from the latest of—

. . . . (4) the date on which the facts supporting the c

laim or cla ims present e dcould have been discov ered through the exe

rcise of due diligence. 28 U.S.C. § 2255 ¶

6. Appella

nt’s a rgume nt is straightforwa rd: the single “fact” supporting

the claim in his § 2255 petition is the vacatur of hi s prior state convictions; absent t

hose state convictions, App ellant should not have been sentenced
as acareer offende

r, and his federa

l sentence should be va

cated. Appellant

contends the “fact” suppor

ting his § 2255 claim —the va catur of his prior st ate convictions—could

not have been discover

ed until October 24,

2000, the date on which the statecourt entered its ord er. He therefore reasons his § 2255 petition, filed
on February

13, 2001, was with

in one year of Octo

ber 24, 2000, and thus

within the AEDPA statute

of limitations.2 AEDPA’s statute of limitations applies somewhat differently to a petitioner, like

Appellant, whose conviction became final prior to the effective date of AEDPA. Like all other circuits to have c

onsidered the issu

e, we allow such p

etitioners a one-

year gr ace period until April 23, 1997, to file a § 2255 petition. See Goodman v. United States , 151 F.3d 1335, 1337 (11th Cir. 1998). 7 The question we must answer is whethe r the vacatur of a state conviction constitutes a “fact” wi

thin the meaning o f § 2255 ¶ 6(4). Or di narily, a federal prisonermust file his § 225 5 petition w ithin one year of the da te on which his judgment of conviction becom

es final. 2 Because an indirec t collateral atta ck is pr edicated

on a successful challenge to prior state convictions used to enhance t h e federal sentence, it is at least plausible to argue that a petitio

ner has one yea

r from the date his prior state convictions were set aside, under § 2255 ¶ 6(4). Common sense, however,

dictates that we di sti nguis h legal propositions and results from th e “facts” ref erred to in § 2255. A

factual proposition i s typically something

capable in principle of fa lsifi catio n (or p ossi bly ev en ver ifica tion ) by so me empiricalinquiry, while a legal proposition is id entif ied by consu ltin g some authoritati

ve leg al source. If w

e are asked wheth

er Appellant’s prior state convicti ons have been vacated, we wo uld consult an authorita

tive legal source: t

he records of decisions of

the state court where

Appellant collater

ally attacked t

hose convictions. On the other hand, if we are asked whether Appellant waived his right to counsel before pleading guilty to t he state charges, we would need to make an empirical3 Of course, the passage of time may make an e mpirical inquiry difficult or impossible. See Lackawanna Cou

nty , 532 U.S. at 403, 121 S. Ct. at 1574 (“As tim e passes, and ce

rtainly 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 revie w diminishes substantially.”). The possible harm from delay further bolsters our narrower interpre tation of AEDPA’s statute of limitations. 8 inquiryinto the matter

, for example

by reading the e

xtant records of

Appellant’s plea hearings. 3 Put another way , the vacatur of pr

ior sta te co nvictions is a court ac tion obtained at the behest of a fed e ral prisoner, not “discov ered” by him. Brackett v. United States , 270 F.3d 60, 68 (1s t Cir. 2001). Applying t he c ommon sense distinction

between the factual and the legal to § 2255 ¶ 6(4), we conclude the vacatur of Appellant ’s prior state convict ions is not a “fac

t” from which the

one-year stat

ute of limitations m

ay run. This co mmon sense

reading of the phras e “facts suppor ting the claim or claims” is bols tered by compari

ng that accrual date

with the other acc

rual dates in § 2255. Section 2255 ¶ 6(1) r efers to the date a

judgment beco

mes final, an

d § 2255 ¶ 6(3) refers to the date a right was initially

recognized by t

he Supreme Co

urt. The
use of the term “fa

cts” in § 2255 ¶ 6(4) is in contr

ast to those other subse

ction’s use of “judgments” and “rights,” two legal res ults distinct fro m historical facts. See Brackett, 270 F.3d at 68–69. It follows that the sta

te court’s vacatur

of Appellant ’s prior convictions is not a “fact” within the meaning of § 2255 ¶ 6(4).9

The interpretation of § 2255 ¶ 6(4) urged by A

ppellant is also inconsistent w

ith the pa rallel hab eas provision that applies to state prisoners, § 2244(d)(1). Under § 2244(d)(1)(D), the o ne-year lim itation period runs fr

om “the dat

e on which the factual predicate of the claim or claims presented could have been discov

ered through the exercise of due diligence.” Were we to ado pt Appellant’s int

erpretation

of § 2255 and apply it to the parallel prov

ision in § 2244, we would render redundant the word “factual” in § 2244, because all such predicates would b e functionally “ factual” in nature. Others of our siste

r Circuits have inte

rpreted “fac

tual predicate” in

§ 2244 to
mean historical facts,

not court rulings

or legal consequen ces. See Hasan v. Galaz a , 254 F.3d 1150, 1154 & n.3 (9th Cir. 2001); Owens v. Boyd , 235 F.3d 356, 359 (7

th Cir. 2000); Yb anez v. Johnson , 204 F .3d 64 5, 646 (5th C ir. 20 00) (p er cur iam) (characterizin

g as an “ext raordi nary propo sition” the argument that “the factual predicate of their claim

consists neither of e

vidence nor events

that happened at trial but in the state court’ s ruling on their const itut iona l clai ms”). As the Su preme Court commonly

interprets § 2 254 and § 2255 in light o f each other, see Lackawanna County , 532 U.S. at 402, 121 S. Ct. at 1573, we i nterpret the limita

tions period of § 2255 consistently

with the limitations pe riod of § 2244. See Brackett , 270 F.3d at 69 (“Beca

use § 2254 (habeas corpus f rom state convi

ctions) and § 2255 (post-4 We have previously cited Brackett approvingly. See Jones , 304 F.3d at 1039. 10 conviction

relief from federa

l convictions)are analogous to one a nother, the way

the state habeas provisions are interpreted should be used to interpret § 2255(4).”). Finall y, A ppellant’s interpretation of § 2255 ¶ 6(4) is contrary to the clear legislative

purpose of AE D PA. It is generally accepted that one of the principal functions of AEDPA wa

s to ensure a greate

r degree of finali

ty for convictions. See Duncan v. Walker , 533 U.S. 167, 178, 121 S. Ct. 2120, 2127 (2001); Williams v. Taylor , 529 U.S. 420, 436, 120 S. Ct. 1479, 1490 (2000); Jones v. United States , 304 F.3d 1035, 1039 (11th Cir. 2002) (“A fundamental purpose for the AEDPA was t o establish finality in post- conviction proceedin gs.”); Brackett, 270 F.3d at 69 (“ [O]ne of the signal purposes animating AEDPA is the desire of Congress to achie ve finality in criminal cases, both federal and state.”). Given the other substantial grounds for interpreting

§ 2255 ¶ 6(4) as we do, we cannot accept analternative interpretation that would also run directly

counter to th e general congressional intent behind AEDPA and indefinitely

extend the opportunity

for post-conviction c

hallenges. Our view thus accords with that of the First Circuit. See Brackett , 270 F.3d at 68. 4 In Brackett, the petitioner pledguilty to federa l criminal cha

rges in July 1997, and he was sentenced as a career offender based on two prior

state conviction s. Id
. at62 His federal sentence became final on March 12, 1998. Id. On January 3, 2000,5 As we explain infra , Part II. B, we would rea ch the same resul

t as the Fourth Circ

uit in Gadsen on the facts as the y appeare d in that case, but w

e would do so on the b

asis of equitable tolling, not statuto

ry construc

tion. On the equita

ble tolling issue,

however, Appell

ant’s case is materially

different from Gadsen
. 11 he filed motions in s

tate court to vacate his p

rior state convicti

ons on the ground that he was denied effective ass istance of counsel. Id. at 63. The state prosecutor’s office agreed to the motions, a

nd his prior sta

te co nvictions were vac ated without any judicial finding of a consti tutional violat ion. Id . On December 18, 2000, t h e petitionerthen filed a § 2255 petition to set aside his federal sentence. Id . at 62. Like Appellant, he claimed tha t his § 2255 petition was

within one year of the

vacatur of his state convictions, so that under § 2255 ¶ 6(4), his petition was timely. Id . at 64. The First Circuit disa

greed, concluding “the o

perative date

under § 2255(4) is not th

e date the state con

vict ion was vacated, but rather the date on which the defenda

nt learned, or with due diligence should have learned, the

facts supporting his c

laim to vacate the state conviction.” Id . at 68. We recognize that the Fourth Circuit has recen

tly disagreed w

ith Brackett, see United States v. Gadsen , 332 F.3d 224 (4th Cir. 2003), b

ut we respectfull

y differ with
our sister circuit’ s interpretation of § 2255 ¶ 6(4). 5 In Gadsen , the petitioner pled no contest to a South Carolina a

ssault charge

on February 27, 1997. Id . at 225. On December

3, 1997, he was convicted in federal court of two federal crimes, and based12

in part on his February

1997 state convic tion, was sentenced as a career offender. Id
. On January 7, 1998—

less than one yea

r after his state c

onvictio n, m erely a m

onth after his fe deral conv ictio n, and well b efore his fe deral conv ictio n beca me fin al fo llowingappeal on June 1, 1999— the petitioner file

d a petition in South Ca

rolin a state court for post-conv iction relief from his sta te conviction. Id
. On December 20, 1999, the South Carolina cour t granted hisapplication for post- conviction relief, and the South Carolina Supr

eme Court dec

lined to review tha

t decision on January

10, 2001. Id . at 225–26. With this final order vacating his state conviction in ha nd, the petitionerfiled

a § 2255 petition on December 17, 2001, seekingto vacate his federal sentence on the ground tha t he was no longer a career offender. Id . at 226 The district court, howev er, dismissed his § 2255 petition as untimely. Id
. On appeal, the Fourth Circuit rejec ted Br ackett ’s interpretati on of § 2255 ¶ 6(4), treat

ing the South Carolina

court’s vacatur

of the peti tioner’s state conviction

as a “fact” wit

hin the meaning of t

hat section. In par

ticular, the Four

th Circuit relied upon a pass age of

the Su preme Court’s opinion in Daniels in which the Court acknowledgedthat “after an enhanced federal sent ence has been imposed . . . , the perso n sent enced ma y pursu e any channels of direct or collater

al review still available to challenge his pr ior convictions.” Id. at 228 (quoting Daniels , 532 U.S. at382, 121 S. Ct. at 1583 ). The Fourth Circuit reas oned that, if it did not interpret13

§ 2255 ¶ 6(4) liberall

y, “we w ould be punishing Gadsen and other litigants li ke him for ha ving faith fully follo wed th ese in struc tion s [fro m Daniels ].” Id
. We think the Fourth Circ

uit reads the language of Daniels for much more than itis worth. To be sure, “[t]he entire point of Custis and Daniels was th at litigants should not bypass state cour

ts to litigate the facts underlying their state convictions during challenges to a fed eral sentencing

determination.” Id . But as the First C ircuit aptly put it in Brackett, Custis and Daniels ans wer the ques tion of where a federal prisonermay bring an attack on a prior state conviction in order to mount an indirect attack on a federa l sent ence, while the q uestion in this case (

as in Brackett

and Gadsen ) is when that indirect attack may be brought. See Brackett, 270 F.3d at 66. The language of Daniels on which the Fourth C ircuit relies m

erely outli

nes the procedure that a federal prisoner must follow to bring an indirect attack on his federal sentence. The “when” question was not present in Daniels , so the Suprem e Court did not address it and the relevant passage of Daniels does not speak to the tim e limit s that apply. The F ourth Circuit reads the Supreme Court’s sil ence on this issue as dictating one interpretation o f § 2255 ¶ 6(4) when it does n o such thing. Cf. Barnhart6 We do not mean to suggest that the “when” question is entirely irrelevant to the “w here” question the Supreme Court answered in Daniels
. Daniels would make little sense if, in many ordinary c

ases, a petitione

r seeking to make

an indirect attac

k would find himself

permanently shut out of federal court when he brings his § 2255 petition. As we explain infra , however, equitable tolling may be available to a petitioner who acts with the requisite diligence in bringing an indirect attack on his federal sentence. See infra Part II.B . The availability of that equitable remedy helps to render the procedure outlined in Daniels fair and just. 14 v. Wal ton , 535 U.S. 212, ___, 122 S. Ct. 1265, 1270 (2002) (“[S]ilence, after a ll , normally creates ambiguity.It does not resolve it.”). 6 Thus, we hold with the Fir st Circuit and contra the Fourt h C ircuit that the pu rported“fact” of a state court’s vacatur of a federal prisoner’s prior

sta t e convictions is not

a “fact suppor

ting the claim or c

laims” under § 22 55 ¶ 6(4) from which AEDPA’s statute of limitation will run. In this case, Appellant

knew all of the facts supporting his challenge to his state convictions before hi s federal convicti on became final. On direct appeal, he attempted to argue his prior state convictions had been obtained in violation of his right to counsel, a

nd it is probable that this was the
un statedbasis for his initial objection to the pre-sentence investigation re port that Appellant withdrew at his se

ntencing hearing. Appellant was therefore aware of all the rel evant

operative facts before his conviction be came final. Absent some ba sis for equitable tolling, di scussed infra , he had to file his § 2255 motion within the oneyear grace period follow

ing AEDPA’s

enactment, o

r by April 23, 1997. Appellant15

did not file his present § 2255 petition until Fe bruary 13, 2001, s o we conclude his petition was untimely und er AEDPA. B. Equitable Tolling Appellant also argues he is ent

itled to equitable toll

ing of the AEDPA

statute of limitations. We have held that equi table tol ling is ap propriate when a priso ner’s § 2255 petition is untimely because of ext raordinary ci rcumstances t

hat are both beyond his control and un avoidable even with diligence. Drew v. Dep’t of Corr. , 297 F.3d 1278, 1286 (11th Cir. 2002); Sandvik v. United States , 177 F.3 d 1269, 1271 (11th Cir. 1999). W

e have emphasiz

ed, however, tha

t equitable

tolling applies only in truly extraordinary circumstances
. Jones , 304 F.3d at 1039–40; Drew , 297 F.3d at1286. Appellant bea rs the burden of esta

blish ing tha t he is entitled to this extraordinary

relief. See Helton v. Sec ’y for Dep’t of Corr

. , 259 F.3d 1310, 1313–1 4 (11th Cir. 2001). On the facts of this case, Appellant cannot show that the d elay in filing his initial § 2255 petition was the result of extraordinary circumstances that were bey ond his controleven with

the exercise of due

diligence. Appell

ant was plainly

aware of whatever facts supported his collate ral attack on his pri

or state convictions a

t the time his federal sentence became final in 1996. He did not comm ence his challenge to the state con viction s until February 1998, nearly two years later. H ad Appellant been16

actingwith due diligence, he woul d have attacked his st

ate convictions im

mediately after his federal senten

ce became fi

nal, or perhaps

even before he

was sentenced on the federal offense. Yet

Appellant has not eve

n proffered any

explanation

or excuse that might show why the delay in attacking his underlying state convictions was beyond his control. By way of comparison, Appellant has even less of a claim for equi

table tolling than the petitioner in Sandvik
. In that case, the petitioner’s law yer maile d his § 2255 petition from Atlanta

to the district court in Miami on April 18, 1997
. Sandvik , 177 F.3d at 1270. The

dis trict court file-stamped t he motion on April 25, 19 97. Id
. Because the petitio

ner’s conviction w

as final prior to

the effective

date of AEDPA, his § 2255 motion was due no later than April 23, 1997, in accord with the one-year grace period

following the enact ment of AEDPA. Id . Thus, despite counsel’s attem pt to meet the deadline, the peti tion was untimely. When petitioner argued f

or equitable tolling on appeal, we concluded that petitioner’s co uns el could have ma iled the petition earlier or used a private delivery service or a private courier to be certain that itwas timely filed. Id . at 1272. As it w as not a circumstanc e beyond pet itioner’s controlwith the exercise

of due diligence, w

e found no ground for equitable

tolling. Id . Unlike the petiti

oner in Sandvik

, who at least att

empted to file a

petition within the one-year

grace period,

Appellant mad

e no similar at

tempt to act dili

gently in this17

case. Rather,

he did not even file

the state post-convic

tion challenges on

which his § 2255 petition was pre

di cated until nearly two years after his federal convict

ion became final, despite knowing the basis for those state challenges at the time of his conviction. This is therefo re hardl y an extr aordin ary c ase in w hich petitioner was unable to meet t

he deadline through no f

ault of his own. Appellant attempts to re scue his argume ntfor equitable tolling by

pointing to his April 25, 1997 motion in federal district court seeki ng to exten d the t ime to file his § 2255 petition
. Appellant claim s the district court’s

denial of that m

otion without prejudice led him believe that he could still file a § 2255 petition

at a later date. Yet the district court’s

order dismissing

Appellant’s 1997 m

otion found it to be untim ely under§ 2255 ¶ 6(1), and it o nly suggested that

he could subseque

nt ly file a § 2255 petition if he could establish one of the later accrual dates set forth in § 2255 ¶ 6. As explained supra , however, Appell ant cannot come

within § 2255 ¶ 6(4) to establi sh a later accrual date. Appellant also points to the footnot ed caveat in our opinion affirm ing his sentence on direct appeal, claiming the

caveat misled

him into thinking § 2255 relief would be available

whenever he successfully attacked his state convictions.Nothing in our caveat suggested tha

t Appellant could tak

e an unlimited ti

me to comm

ence his7 In this respect, our caveat is like the passage of Danielsthat the Fourth Circuit overemphasizes; our statement, like the Supreme Court’s statement in Daniels , says nothing about the applicable time limits for an indirect attack. This is not surprising, since our caveat was explicitly noted “in passing.” One cannot infer from such a passing statement how the background sta

tute of limitations w

ould apply to A

ppellant when he f

inally got a

round to bringing his indirect attack on his federal sentence. 18 collateral attack on his state convictions. 7 In addition, our opinion affirm ing his
con viction

issued prior to the ef

fective date of A

EDPA; the cave

at may not ha

ve contemplated

the effect of the new AEDPA limitations peri od. Follo wing the enact me ntof AEDPA, A ppellant still had the e

ntire one-yea

r grace period wi

th i n which to take some action to attack his conviction and sentence, yet he did nothing. This is the fundamental problem that plagues Appellant’s ar gument: the long delay before he commenced his state col lateral attacks. Drewpresented a somewhat similar scenario. In that case, the petitioner filed a t

imely § 2254 pe

tition, which the district court dismissed without prejudice while ordering the petitioner to first file a third state motion for

post-conviction r

elie f. See Drew , 297 F.3d at 1287. T hough the petitioner co mpl ied with the distric t court’s order,

we concluded that e

quitable tolling was not warranted in that case in part because the petitioner

delayed filing t

he state motion. Id . If

the timeliness o f that petitioner’ s initial § 2254 petition d id not justify equitable tolling bec ause of his subsequent delay, it is impossible to fin

d any justification

for equitable tolling in this case, where Appellant’s initial motion was not even timely in the first place.19

The facts of Gadsen are usefully i llustrative

on this p oint. The petitione r in Gadsen collaterally

attacked his prior s

tate conviction in sta

te court before his

federal conviction

and sentence were even fi nal. Gadsen , 332 F.3d at 225. H is state collateral attack was pending i n the South

Carolina courts fo

r three year

s, until he ultimately

prevailed. Id . at 226. If that p etitione r were not given the benefit of equitabletolling, then und er o ur interpretation of

§ 2255 ¶ 6(4), he wou ld be p rec luded from carry

ing out his indirect att

ack for no other re

ason that the state courts’ delay. Such a

result would

obviously

be unfair. Under

our circuit prece

dents, however, we would readil y conclu de the S outh Ca rolina courts ’ delay i n finally dis posing of the petitioner’s state collateral attack amounted to an extraordinary circumstance beyond the petitio ner’s control. And because the petitionerlaunched his challenge in the Sout h Carolina state co

urts before his

fe deral conviction was final, ther e can be no doubt as to th e petitioner’s dil

igence in pursuing his c

laims. Thus, while we depart from the Fourth Circuit’s opinion on the issue of statutory interpretation, see supra part II.A, on t he facts of Gadsen we would ultimately reach the same result as our sis ter circuit by allowing th at petitioner equi table tolling. The facts of the present petition, however, are materia lly different from

those in Gadsen ; the crucial point he re is that Appellan

t did nothing during the

one-year AEDPA gra ce p eriod to attack his pr ior state convictions

collaterally.

Unlike the8 In a final effort to get the benefit of equitable tolling, Appellant claims the denia l of equitable tolling would be unconstitutional suspension of the writ of habeas corpus. We have already he

ld that the AEDPA limi

tations periods do n

ot per se constitute a suspension of the writ. See Tinker v. Moo

re , 255 F.3d 1331, 133 4 (11th Cir. 2001); Wyzykowski v . Dep’t of Corr. , 226 F.3d 1213 (11th Cir

. 2000). Appellan

t’s argument the

refore fails. In addition, we do not reach Appellant’s further argument—raised f or the first time on appeal—tha t the failu re to reach th e merits of h is § 2255 pe tition wo uld amount to a miscarr iage of justice. Arguments not raised in the district court are waived. Tannenbaum v. United States , 148 F.3d 1262, 1263 (11th Cir. 1998) (per curiam). 20 petitionerin Gadsen , Appellant did not commence hi s state collateral attack un

t il almost two years af

ter hi s fe deral sentence became final, and then nearly one yea r after AEDPA’s one-year grace period expire d. Given that de lay, we are compelled to find there are no e

xtraordinary c

ircumstances in Appell ant’s case, nor can we conclude that Appellant act ed with appropriate dilig ence. We cannot allow equitable tolling of the AEDPA limitations period on the facts of this case. 8 III. CONCLUSION We hold the vac atur of Appellant’s prior state convictions is not a “fact supp orting the claim or c laims” within t

he meaning of 28 U .S.C. § 225 5 ¶ 6(4)
. Under the statute of lim

itations that applies t

o § 2255 petitions, Appel lant’s petition
was therefore untimely. Further, we hold Appellant cannot show, on the fa cts of this case, that his peti

tionwas untimely because of extraordinary circumstance s beyond21

his control and unavoidabl e even with the exer

cise of due diligence. H

e therefore is not entitled to equitable tolling. AFFIRMED.22

RONEY, Cir

cuit Judge, dissenting : I respec tful ly dissent. In m y judgment

, Johnson’s Februa

ry 13, 2001 § 2255 petition for wri t of habeas corpus sho uld not have been dism issed as untimely because the one-y

ear statute

of limitation on t

he claim asser

ted did not begin to run until October 24, 2000,

the date the state court vacated Johnson’ s July 5, 1989 state conviction

for distribution of cocaine – one of the tw o prerequisite state

convictions relie dupon by the distric t court to enhance Joh

nson’s sentence unde

r the caree r offender categor

y of the Sentenc

ing Guidelines. Contrary to the Court’s opinion, I think a decision of a state court reversing a state crimina

l conviction is a “

fact” within the m

eaning of 28 U.S.C. § 2255 ¶ 6(4). Se e United States v. Gadsen , 332 F.3d 224, 229 (4 th Cir. 2003) (holdin

g that “the fed eral st atute of limita

tions begins running whe n the state court conv

iction is conclusively

invalidated”); United St ates v. Hoskie , 144 F. Supp.2d 108, 11 1 (D. Conn. 2001) (holding that “ the one-year s

tatute of limit

ations starts to run

on the date the state convictions are vacated, not an earlier date when the defendant discovered the facts forming the basi s for the attack on th e state conviction s”). With this Court’s decis

ion and the decision in Brackett v. United States , 27 0 F.3d 60, 68 (1st Cir. 200 1) (holding that “the operative date unde

r § 2255(4) isnot the date the state convi

ction was vacated,

but rather the date on

which the defendan

t23

learned, or with due

diligence should have l

earned, the fac

ts supporting his claim

to vacate the stateconviction”), ther e is a clear split

in the circuits, w

hich at some point should be resolved by C ongress or the Supreme Court. Without question, i f the rule announced in this decision and in Brackett is consistently a

pplied, in some c

ircuits there will be defendants serving time in federal prison under a federal sentence based uponconviction of a state crime that the

state court has auth oritatively hel d the defendant unquestionably

did not comm

it, who would be bar

red from relief, while i

n other circuits relief from such imprisonment will be readily available. The relevant sec

tion, 28 U.S.C.§ 2255 ¶ 6(4), provide s: A 1-year period

of limitation sha

ll apply to a m

otion under thi s section. The limitation period shall run from the latest of—

. . . . (4) the date on which the facts s uppo rting the cl aim or c laims presentedcould have been discovere d through the exercis e of due diligence. As a “fac t” within the mea ning of this section, i

t is obviously new a

nd not previously

discoverable because u ntil the state court a ctually entere

d the judgment reversing seven outstandin

g convictions, including Johnson’s July 5,

1989 conviction, it had yet to happe n and therefore, by definition, could not be a fact at a ll. See Black’s Law D

ictionary 610 (7t

h ed. 1999) (defining “fa

ct,” “1. Something that actually exists”); Webster’s Third New Inte rnational Dictiona

ry 813 (1993) (defining24

“fact,” “1: a thing done”); The Am erica n Heritage Dicti onary of the En

glish Language 46 (1975) (defining

“fact,” “ 1. something k nown with c ertainty”); Black’s LawDictionary 738 (3d ed. 1933) (defi ni ng “fact ,” “1– a thing don e”); see also United States v. Steele , 147 F.3d 1316, 1318 (11th Cir.1998) (en banc) (“Where the language Congress chose to express its intent is clear and unambiguous, thatis as far
as we go to ascertain its inte nt because we m

ust presume that C ongress said what it
m eant a nd meant what i

t said.”). Unti

l that date, the fa

ct was that Johnson sto od convicted of those numerous crimes. The fact that he does not now stand convicted of those crimes clearly supports his claim because: (1) those seven vacated
co nvictions were relied upon by the sentencing court

in one way or a

nother in deriving Johnson’s total off

ense level of

25 and a crimina

l history catego

ry of 6; and (2) only one of the two requir ed convictions relied upo n by the district c

ourt to enhance Johnson’s sentence as a caree r o ffender was a va lid conviction. W

ithout Johnson ’s vacated July 5, 1989 state conviction f or distribution of coc aine, th e undenia ble fact is that he was not a career offender within the meaning of th e Sentencing

Guidelines. See, e.g. , United States v. Duty , 302 F.3d 1240,1241 (11th Cir. 2002) (n oting that a defendan t is a “caree

r offender” under

the Sentencing Guidelines if, inter alia , “the defend ant has at least two

prior felony co

nvictions for either a crime of violence or a controll ed substance offense

”); U.S.S.G . § 4B1.1. The25

sentencing

court did not rely

u pon the underlying c

onduct that resulted i

n those convictions, but instead simply relied upon the m

ere fact that those

were valid state court convictions, as recited in the Presentence Investigation Report (“PSI”). Johnson ’s PSI indicates a total offense level of 25 and a c riminal hi story category of 6, qualifying him for a s entencing ra nge of 110 to 137 mont hs’ imprisonme

nt. See U.S. S.G. Ch. 5, Pt. A. The dist rict court, howe

ver, relied upon the “facts” o f two prior state convictions to boost Johnson into the career offender category and thus increase

his sentence: (1) a

July 5, 1989 conviction for

distribution of cocaine; and (2) a

November 13,

1989 conviction for sale of cocaine. Utilizing the
career offender enhance

ment, the district court enhanced the total offense level from 25 to 32 with a crim

inal history cat

egory of 6, qual

ifying Johnso

n for a s entencing range of 151 to 188 months’ impris onment. See id. § 4B1.1( b). The district court sentencedJohnson

to 188 months’ imprisonment, the highest end of that sentencing range. See id. Ch. 5, Pt. A. As a timel y peti tion , the c ase sh ould be rema nded for the district court to considerJohnson ’s claims on the merits. If that petition is grant

ed and a resentenci

ng is ordered, Johnson m

ay indeed be fa

ced with some n

ew problems. Johnson ’s state petition did not a ssert that he was in

nocent of the facts which supported his conviction, but simply alleged that although he pled guilty in each case,26

the convictions were no

netheless invalid because he di d not affirmat

ively waive his right to counsel. The sta

te made no genuin

e attempt to defe

at his claim, perhaps because Johnson had already served the state prison

sentences accom

panying those state convictions. This la ck of defense to the state petitions is reflected in the state court’s opinion, which leav es some doubt as to

whether Johnson met the Strickland standard for

relief from

a claim of

ineffective assista nce of counsel. See Strickland

v. Washington , 466 U.S. 668, 687 (1984). The state court’s opinion reads as follows:

Petitioner, after being sentenced to an enhanced sentence because of certain state convictions, f

iled his Petition for Wr

it of Habeas Corpus alleging that his pleas in seve

n cases in Cook County

Superio r Cou rt were not voluntary in tha t he did not knowingly

, intelligently

and voluntarily waive his right to counsel at the hearing on the ent

ry of his guilty pleas. The case s that were challe nged by Petition were numbered 83F-9 [Feb. 11, 1989 –

burglary], 88 F–32 [Mar. 9 , 1988 – con version], 88M-43 [Mar. 9, 1988 – cont empt], 89F- 122 [July 5, 1989 – distribution

of cocaine], 9 0F-383 [Dec. 5, 1990 – th eft and violation of pro bation], 92F-36 [Mar. 11, 1992 – possession of coca ine] and 93F-148 [April 21, 1993 – possession of cocaine] filed in Cook County Superior Court. Petitioner

. . . filed copies of the plea petitions that accompanied the entry of his pleas. These pleas contained questions about his waiver of the p resenc e and us e of an at torney. The State responded den ying the allega

ti ons but have not filed any f urther transcript

s of the hearing whi

ch would support their

position
. This Court findings that the recordin these cases does not s how an affirmative waiver of his ri ght to an attorney. . . .27 IT IS HEREBY

ORDERED that

Petitioner’s Pe

tition For Writ of Habeas Corpus is hereby

GRANTED a

nd the convictions in

the abovecited cases are he

reby reverse

d. Regardles s of t he ground for the decision, this state court judgment reversed those convictions, and they are no longer valid

convictions upon

which a sentencing courtcould rely. T

hat statecourt judgmen

t is entitled to the sam

e fact analysi s as if the convictions had been reversed on the basis of irrefutable evidence that a defendant
was in fact innocent of the crimes fo r which he had been convicted. If the state court’s vacatur of the

seven state

convictions came before the sentencing in this case, itwould have been cle

ar error for the

court to rely on

the fact of convictio n. Without those convictions to rely

upon, an analysi s of Jo hnson’ s PSI would show: ( 1) only three criminal histor

y points derived f

rom Johnson’s N

ovember 13, 1989 sa le of cocaineconviction, corresponding to an offense level of 25 and a criminal history categ oryof 2; an d (2) an insufficie nt number of pri

or offenses (one) to support a career offender enhancement. Atthe time of sentencing, the PS I properly noted that U.S.S.G. § 4A1 .3 provides that a sentencing court may depart upward if “reliable information indicates t hat the criminal history category does not adequately reflect the ser iousness of t h e defendant ’s past criminal conduct or the likelih ood that the de fen dant will comm it
o ther crim es.” U.S.S.G. § 4A1.3. This Court has affirm ed several circumstances28

where a district courtapplied an upward departure under § 4A1.3. See, e.g. , United States v. Jones , 289 F.3d 1260 (11th Cir. 2002) (two-level criminal history category upward departure for a de

fendant’s prior j uvenile offenses an d other offens es to o remote to use in calculating a criminal hist ory under the guid

elines); United States v. Hernandez , 160 F.3d 661 (11th Cir. 1998) (one-level criminal history category upward departure for a defendant’s prior non-criminal misconduct related to t he sentencedoffense); United States v. Spr aggins , 868 F.2d 1541 (11th Cir . 1989) (three-level criminal histor y upward depar

tur e for defendant with hist ory of mole sting children, the need to deter such conduct in the future , and to acco unt for def endant’s older previous crime s); United States v. Dorsey , 888 F.2d 79 (11th Ci r. 1989) (upheld district court’s upward d

eparture to

acareer offende

r, even though defe

ndant did not have two qualifying pri or felony convictions under 4B1.1). Based on the informat

ion contained in

the PSI, it may well be that a departure upward would be appropriat

e, but these are m

atters not be for e us at this time . The sole issue before us is w

hether Johnson’s § 225 5 petition is timely bec aus e it was filedwithin one year

of the Georg ia state court’s vacatur of Johnson’ s seven prior state convictions. I wou

ld hold that it

was timely

, would reverse t

he decision of the district court to the

contrary, an

d would remand t

o the district court f

or consideration of the petition on its m

erits.