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-Appellant,

versus

UNITED STATES OF AMERICA,

Respondent-Appellee.

________________________

Appeal from the United States District Court

for the Middle District 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 career offenders

indirectly attack their federal sentences by first collaterally attacking their prior state

convictions. Federal prisoner Robert Johnson brought such an indirect attack on his

federal sentence, and he now appeals the district court’s denial of his § 2255 petition

as untimely. We issued a certificate of appealability on the following question: 

Whether the district court correctly determined that appellant’s motion

to vacate, filed pursuant to 28 U.S.C. § 2255, was untimely under the

one-year statute of limitations provision in the Antiterrorism and

Effective Death Penalty Act of 1996.

We now conclude Appellant’s indirect attack on his federal sentence was untimely,

and we therefore affirm.

I. BACKGROUND

Between 1983 and 1994, Appellant pled guilty to several state criminal

charges. In 1994, he was indicted as one of five co-defendants on federal drug

conspiracy charges, and he pled guilty. A pre-sentence investigation report

recommended classifying him as a career offender based on his prior state

convictions. Initially, 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 wished to waive all of
3

his objections to the pre-sentence investigation report. Appellant was sentenced as

a career offender and received 188 months’ imprisonment. 

Appellant then filed a direct appeal, contending his prior state convictionswere

obtained in violation of his constitutional right to counsel, and he therefore should not

have been sentenced as a career offender. On December 22, 1995, we affirmed

Appellant’s sentence. Our unpublished order included the following caveat in a

footnote: “We note in passing that, should appellant obtain at some future date the

vacation of the state court conviction[s] in question because they were obtained in

violation of his constitutional rights, he could petition the district court under 28

U.S.C. § 2255 for the relief he now asks us to provide.” United States v. Johnson,

No. 94–9402 (11th Cir. Dec. 22, 1995). Appellant sought certiorari from the

Supreme Court of the United States, but the Supreme Court denied his petition on

April 22, 1996. Johnson v. United States, 517 U.S. 1162, 116 S. Ct. 1559 (April 22,

1996) (mem.).

Just over one year later, on April 25, 1997, Appellant filed a motion in the

district court to extend the time to file a § 2255 petition. The district court ruled that

Appellant’s motion was untimely under § 2255 ¶ 6(1). The district court did

acknowledge the possibility that exists in every habeas case, namely, that something

might transpire that would permit Appellant to take advantage of one of the later
1We subsequently appointed counsel to represent Appellant for this appeal.

4

accrual dates under § 2255 ¶ 6. It therefore denied Appellant’s motion without

prejudice.

On February 6, 1998, Appellant filed a state habeas petition challenging all of

his prior state convictions on the ground that he had not validly waived his right to

counsel in those proceedings. On October 24, 2000, the state court vacated

Appellant’s prior convictions. Appellant then filed the present § 2255 petition on

February 13, 2001, asking the district court to vacate his sentence because he no

longer qualified as a career offender. On August 1, 2001, the district court denied the

§ 2255 petition as untimely. We granted a certificate of appealability, and this appeal

followed.1

II. DISCUSSION

As this case involves an indirect challenge to a federal sentence via a collateral

attack on prior state convictions, some background on the law of such challenges is

helpful.

First, in Custis v. United States, 511 U.S. 485, 114 S. Ct. 1732 (1994), the

Supreme Court held that, during his sentencing proceeding, a federal prisoner could

not attack the validity of his prior convictions that raised his maximum sentence

under the Armed Career Criminal Act, 18 U.S.C. § 924(e); the only exception to this
5

rule is for prior convictions based on a deprivation of the right to counsel under

Gideon v. Wainwright. See Custis, 511 U.S. at 496; 114 S. Ct. at 1738. 

Second, federal prisoners generally cannot attack prior convictions which

enhanced their federal sentences in a § 2255 proceeding challenging 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 District Attorney v. Cross, 532 U.S. 394,

403–04, 121 S. Ct. 1567, 1574 (2001) (reaching same conclusion for § 2254). If a

prior conviction used to enhance a federal sentence is no longer itself open to direct

or collateral attack, the defendant is generally without recourse. Daniels, 532 U.S.

at 382, 121 S. Ct. at 1583. 

Following Custis, many Circuits including our own have authorized indirect

attacks on federal sentences; a defendant may seek to reopen his federal sentencing

pursuant to § 2255 if he has successfully attacked a prior state conviction used 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 state courts, where court

records may have been destroyed and where state executive officials often have no

interest in defending a conviction for which the defendant has already served his

sentence.
6

With this background in mind, we turn to Appellant’s arguments on appeal.

A. Statute of Limitations

Appellant first argues his § 2255 petition, filed February 13, 2001, was timely

under 28 U.S.C. § 2255 ¶ 6(4). That section provides as follows:

A 1-year period of limitation shall apply to a motion under this

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

. . . .

(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 ¶ 6. Appellant’s argument is straightforward: the single “fact”

supporting the claim in his § 2255 petition is the vacatur of his prior state

convictions; absent those state convictions,Appellant should not have been sentenced

as a career offender, and his federal sentence should be vacated. Appellant contends

the “fact” supporting his § 2255 claim—the vacatur of his prior state

convictions—could not have been discovered until October 24, 2000, the date on

which the state court entered its order. He therefore reasons his § 2255 petition, filed

on February 13, 2001, was within one year of October 24, 2000, and thus within the

AEDPA statute of limitations.
2AEDPA’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 considered the issue, we allow such petitioners a one-year grace 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 whether the vacatur of a state conviction

constitutes a “fact” within the meaning of § 2255 ¶ 6(4). Ordinarily, a federal

prisoner must file his § 2255 petition within one year of the date on which his

judgment of conviction becomes final.2

 Because an indirect collateral attack is

predicated on a successful challenge to prior state convictions used to enhance the

federal sentence, it is at least plausible to argue that a petitioner has one year from the

date his prior state convictions were set aside, under § 2255 ¶ 6(4).

Common sense, however, dictates that we distinguish legal propositions and

results from the “facts” referred to in § 2255. A factual proposition is typically

something capable in principle of falsification (or possibly even verification) by some

empirical inquiry, while a legal proposition is identified by consulting some

authoritative legal source. If we are asked whether Appellant’s prior state convictions

have been vacated, we would consult an authoritative legal source: the records of

decisions of the state court where Appellant collaterally attacked those convictions.

On the other hand, if we are asked whether Appellant waived his right to counsel

before pleading guilty to the state charges, we would need to make an empirical
3Of course, the passage of time may make an empirical inquiry difficult or impossible. 

See Lackawanna County, 532 U.S. at 403, 121 S. Ct. at 1574 (“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.”). The

possible harm from delay further bolsters our narrower interpretation of AEDPA’s statute of

limitations.

8

inquiry into the matter, for example by reading the extant records of Appellant’s plea

hearings.3 Put another way, the vacatur of prior state convictions is a court action

obtained at the behest of a federal prisoner, not “discovered” by him. Brackett v.

United States, 270 F.3d 60, 68 (1st Cir. 2001). Applying the common sense

distinction between the factual and the legal to § 2255 ¶ 6(4), we conclude the vacatur

of Appellant’s prior state convictions is not a “fact” from which the one-year statute

of limitations may run.

This common sense reading of the phrase “facts supporting the claim or

claims” is bolstered by comparing that accrual date with the other accrual dates in

§ 2255. Section 2255 ¶ 6(1) refers to the date a judgment becomes final, and § 2255

¶ 6(3) refers to the date a right was initially recognized by the Supreme Court. The

use of the term “facts” in § 2255 ¶ 6(4) is in contrast to those other subsection’s use

of “judgments” and “rights,” two legal results distinct from historical facts. See

Brackett, 270 F.3d at 68–69. It follows that the state 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 Appellant is also inconsistent with

the parallel habeas provision that applies to state prisoners, § 2244(d)(1). 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.” Were we to adopt Appellant’s interpretation of § 2255

and apply it to the parallel provision in § 2244, we would render redundant the word

“factual” in § 2244, because all such predicates would be functionally “factual” in

nature.

Others of our sister Circuits have interpreted “factual predicate” in § 2244 to

mean historical facts, not court rulings or legal consequences. See Hasan v. Galaza,

254 F.3d 1150, 1154 & n.3 (9th Cir. 2001); Owens v. Boyd, 235 F.3d 356, 359 (7th

Cir. 2000); Ybanez v. Johnson, 204 F.3d 645, 646 (5th Cir. 2000) (per curiam)

(characterizing as an “extraordinary proposition” the argument that “the factual

predicate of their claim consists neither of evidence nor events that happened at trial

but in the state court’s ruling on their constitutional claims”). As the Supreme Court

commonly interprets § 2254 and § 2255 in light of each other, see Lackawanna

County, 532 U.S. at 402, 121 S. Ct. at 1573, we interpret the limitations period of

§ 2255 consistently with the limitations period of § 2244. See Brackett, 270 F.3d at

69 (“Because § 2254 (habeas corpus from state convictions) and § 2255 (post-
4We have previously cited Brackett approvingly. See Jones, 304 F.3d at 1039. 

10

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).”).

Finally, Appellant’s interpretation of § 2255 ¶ 6(4) is contrary to the clear

legislative purpose of AEDPA. It is generally accepted that one of the principal

functions of AEDPA was to ensure a greater degree of finality 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 to

establish finality in post-conviction proceedings.”); Brackett, 270 F.3d at 69 (“[O]ne

of the signal purposes animating AEDPA is the desire of Congress to achieve finality

in criminal cases, both federal and state.”). Given the other substantial grounds for

interpreting § 2255 ¶ 6(4) as we do, we cannot accept an alternative interpretation that

would also run directly counter to the general congressional intent behind AEDPA

and indefinitely extend the opportunity for post-conviction challenges.

Our view thus accords with that of the First Circuit. See Brackett, 270 F.3d at

68.4 In Brackett, the petitioner pled guilty to federal criminal charges in July 1997,

and he was sentenced as a career offender based on two prior state convictions. Id.

at 62 His federal sentence became final on March 12, 1998. Id. On January 3, 2000,
5As we explain infra, Part II.B, we would reach the same result as the Fourth Circuit in

Gadsen on the facts as they appeared in that case, but we would do so on the basis of equitable

tolling, not statutory construction. On the equitable tolling issue, however, Appellant’s case is

materially different from Gadsen.

11

he filed motions in state court to vacate his prior state convictions on the ground that

he was denied effective assistance of counsel. Id. at 63. The state prosecutor’s office

agreed to the motions, and his prior state convictions were vacated without any

judicial finding of a constitutional violation. Id. On December 18, 2000, the

petitioner then filed a § 2255 petition to set aside his federal sentence. Id. at 62. Like

Appellant, he claimed that 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 disagreed, concluding “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.” Id. at 68.

We recognize that the Fourth Circuit has recently disagreed with Brackett, see

United States v. Gadsen, 332 F.3d 224 (4th Cir. 2003), but we respectfully differ with

our sister circuit’s interpretation of § 2255 ¶ 6(4).5 In Gadsen, the petitioner pled no

contest to a South Carolina assault charge on February 27, 1997. Id. at 225. On

December 3, 1997, he was convicted in federal court of two federal crimes, and based
12

in part on his February 1997 state conviction, was sentenced as a career offender. Id.

On January 7, 1998—less than one year after his state conviction, merely a month

after his federal conviction, and well before his federal conviction became final

following appeal on June 1, 1999—the petitioner filed a petition in South Carolina

state court for post-conviction relief from his state conviction. Id. On December 20,

1999, the South Carolina court granted his application for post-conviction relief, and

the South Carolina Supreme Court declined to review that decision on January 10,

2001. Id. at 225–26. With this final order vacating his state conviction in hand, the

petitioner filed a § 2255 petition on December 17, 2001, seeking to vacate his federal

sentence on the ground that he was no longer a career offender. Id. at 226 The

district court, however, dismissed his § 2255 petition as untimely. Id.

On appeal, the Fourth Circuit rejected Brackett’s interpretation of

§ 2255 ¶ 6(4), treating the South Carolina court’s vacatur of the petitioner’s state

conviction as a “fact” within the meaning of that section. In particular, the Fourth

Circuit relied upon a passage of the Supreme Court’s opinion in Daniels in which the

Court acknowledged that “after an enhanced federal sentence has been imposed . . . ,

the person sentenced may pursue any channels of direct or collateral review still

available to challenge his prior convictions.” Id. at 228 (quoting Daniels, 532 U.S.

at 382, 121 S. Ct. at 1583). The Fourth Circuit reasoned that, if it did not interpret
13

§ 2255 ¶ 6(4) liberally, “we would be punishing Gadsen and other litigants like him

for having faithfully followed these instructions [from Daniels].” Id. 

We think the Fourth Circuit reads the language of Daniels for much more than

it is worth. To be sure, “[t]he entire point of Custis and Daniels was that litigants

should not bypass state courts to litigate the facts underlying their state convictions

during challenges to a federal sentencing determination.” Id. But as the First Circuit

aptly put it in Brackett, Custis and Daniels answer the question of where a federal

prisoner may bring an attack on a prior state conviction in order to mount an indirect

attack on a federal sentence, while the question 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 Circuit relies merely outlines 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 Supreme Court did

not address it and the relevant passage of Daniels does not speak to the time limits

that apply. The Fourth Circuit reads the Supreme Court’s silence on this issue as

dictating one interpretation of § 2255 ¶ 6(4) when it does no such thing. Cf. Barnhart
6We do not mean to suggest that the “when” question is entirely irrelevant to the “where”

question the Supreme Court answered in Daniels. Daniels would make little sense if, in many

ordinary cases, a petitioner seeking to make an indirect attack 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. Walton, 535 U.S. 212, ___, 122 S. Ct. 1265, 1270 (2002) (“[S]ilence, after all,

normally creates ambiguity. It does not resolve it.”).6

Thus, we hold with the First Circuit and contra the Fourth Circuit that the

purported “fact” of a state court’s vacatur of a federal prisoner’s prior state

convictions is not a “fact supporting the claim or claims” under § 2255 ¶ 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 his federal conviction

became final. On direct appeal, he attempted to argue his prior state convictions had

been obtained in violation of his right to counsel, and it is probable that this was the

unstated basis for his initial objection to the pre-sentence investigation report that

Appellant withdrew at his sentencing hearing. Appellant was therefore aware of all

the relevant operative facts before his conviction became final. Absent some basis

for equitable tolling, discussed infra, he had to file his § 2255 motion within the oneyear grace period following AEDPA’s enactment, or by April 23, 1997. Appellant
15

did not file his present § 2255 petition until February 13, 2001, so we conclude his

petition was untimely under AEDPA.

B. Equitable Tolling

Appellant also argues he is entitled to equitable tolling of the AEDPA statute

of limitations. We have held that equitable tolling is appropriate when a prisoner’s

§ 2255 petition is untimely because of extraordinary circumstances that are both

beyond his control and unavoidable even with diligence. Drew v. Dep’t of Corr., 297

F.3d 1278, 1286 (11th Cir. 2002); Sandvik v. United States, 177 F.3d 1269, 1271

(11th Cir. 1999). We have emphasized, however, that equitable tolling applies only

in truly extraordinary circumstances. Jones, 304 F.3d at 1039–40; Drew, 297 F.3d

at 1286. Appellant bears the burden of establishing that he is entitled to this

extraordinary relief. See Helton v. Sec’y for Dep’t of Corr., 259 F.3d 1310, 1313–14

(11th Cir. 2001).

On the facts of this case, Appellant cannot show that the delay in filing his

initial § 2255 petition was the result of extraordinary circumstances that were beyond

his control even with the exercise of due diligence. Appellant was plainly aware of

whatever facts supported his collateral attack on his prior state convictions at the time

his federal sentence became final in 1996. He did not commence his challenge to the

state convictions until February 1998, nearly two years later. Had Appellant been
16

acting with due diligence, he would have attacked his state convictions immediately

after his federal sentence became final, or perhaps even before he was sentenced on

the federal offense. Yet Appellant has not even 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 equitable tolling

than the petitioner in Sandvik. In that case, the petitioner’s lawyer mailed his § 2255

petition from Atlanta to the district court in Miami on April 18, 1997. Sandvik, 177

F.3d at 1270. The district court file-stamped the motion on April 25, 1997. Id.

Because the petitioner’s conviction was 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 enactment of AEDPA. Id. Thus, despite counsel’s attempt

to meet the deadline, the petition was untimely. When petitioner argued for equitable

tolling on appeal, we concluded that petitioner’s counsel could have mailed the

petition earlier or used a private delivery service or a private courier to be certain that

it was timely filed. Id. at 1272. As it was not a circumstance beyond petitioner’s

control with the exercise of due diligence, we found no ground for equitable tolling.

Id. Unlike the petitioner in Sandvik, who at least attempted to file a petition within

the one-year grace period, Appellant made no similar attempt to act diligently in this
17

case. Rather, he did not even file the state post-conviction challenges on which his

§ 2255 petition was predicated until nearly two years after his federal conviction

became final, despite knowing the basis for those state challenges at the time of his

conviction. This is therefore hardly an extraordinary case in which petitioner was

unable to meet the deadline through no fault of his own.

Appellant attempts to rescue his argument for equitable tolling by pointing to

his April 25, 1997 motion in federal district court seeking to extend the time to file

his § 2255 petition. Appellant claims the district court’s denial of that motion 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 motion found it to be untimely

under § 2255 ¶ 6(1), and it only suggested that he could subsequently file a § 2255

petition if he could establish one of the later accrual dates set forth in § 2255 ¶ 6. As

explained supra, however, Appellant cannot come within § 2255 ¶ 6(4) to establish

a later accrual date.

Appellant also points to the footnoted caveat in our opinion affirming 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 that Appellant could take an unlimited time to commence his
7

In this respect, our caveat is like the passage of Daniels that 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 statute of limitations would apply to Appellant when he finally got around to

bringing his indirect attack on his federal sentence.

18

collateral attack on his state convictions.7

 In addition, our opinion affirming his

conviction issued prior to the effective date of AEDPA; the caveat may not have

contemplated the effect of the new AEDPA limitations period. Following the

enactment of AEDPA, Appellant still had the entire one-year grace period within

which to take some action to attack his conviction and sentence, yet he did nothing.

This is the fundamental problem that plagues Appellant’s argument: the long

delay before he commenced his state collateral attacks. Drew presented a somewhat

similar scenario. In that case, the petitioner filed a timely § 2254 petition, which the

district court dismissed without prejudice while ordering the petitioner to first file a

third state motion for post-conviction relief. See Drew, 297 F.3d at 1287. Though

the petitioner complied with the district court’s order, we concluded that equitable

tolling was not warranted in that case in part because the petitioner delayed filing the

state motion. Id. If the timeliness of that petitioner’s initial § 2254 petition did not

justify equitable tolling because of his subsequent delay, it is impossible to find 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 illustrative on this point. The petitioner in

Gadsen collaterally attacked his prior state conviction in state court before his federal

conviction and sentence were even final. Gadsen, 332 F.3d at 225. His state

collateral attack was pending in the South Carolina courts for three years, until he

ultimately prevailed. Id. at 226. If that petitioner were not given the benefit of

equitable tolling, then under our interpretation of § 2255 ¶ 6(4), he would be

precluded from carrying out his indirect attack for no other reason that the state

courts’ delay. Such a result would obviously be unfair. Under our circuit precedents,

however, we would readily conclude the South Carolina courts’ delay in finally

disposing of the petitioner’s state collateral attack amounted to an extraordinary

circumstance beyond the petitioner’s control. And because the petitioner launched

his challenge in the South Carolina state courts before his federal conviction was

final, there can be no doubt as to the petitioner’s diligence in pursuing his claims.

Thus, while we depart from the Fourth Circuit’s opinion on the issue of statutory

interpretation,see supra part II.A, on the facts of Gadsen we would ultimately reach

the same result as our sister circuit by allowing that petitioner equitable tolling. 

The facts of the present petition, however, are materially different from those

in Gadsen; the crucial point here is that Appellant did nothing during the one-year

AEDPA grace period to attack his prior state convictions collaterally. Unlike the
8

In a final effort to get the benefit of equitable tolling, Appellant claims the denial of

equitable tolling would be unconstitutional suspension of the writ of habeas corpus. We have

already held that the AEDPA limitations periods do not per se constitute a suspension of the writ. 

See Tinker v. Moore, 255 F.3d 1331, 1334 (11th Cir. 2001); Wyzykowski v. Dep’t of Corr., 226

F.3d 1213 (11th Cir. 2000). Appellant’s argument therefore fails.

In addition, we do not reach Appellant’s further argument—raised for the first time on

appeal—that the failure to reach the merits of his § 2255 petition would amount to a miscarriage

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

petitioner in Gadsen, Appellant did not commence his state collateral attack until

almost two years after his federal sentence became final, and then nearly one year

after AEDPA’s one-year grace period expired. Given that delay, we are compelled

to find there are no extraordinary circumstances in Appellant’s case, nor can we

conclude that Appellant acted with appropriate diligence. We cannot allow equitable

tolling of the AEDPA limitations period on the facts of this case.8

III. CONCLUSION

We hold the vacatur of Appellant’s prior state convictions is not a “fact

supporting the claim or claims” within the meaning of 28 U.S.C. § 2255 ¶ 6(4).

Under the statute of limitations that applies to § 2255 petitions, Appellant’s petition

was therefore untimely. Further, we hold Appellant cannot show, on the facts of this

case, that his petition was untimely because of extraordinary circumstances beyond
21

his control and unavoidable even with the exercise of due diligence. He therefore is

not entitled to equitable tolling.

AFFIRMED.
22

RONEY, Circuit Judge, dissenting:

I respectfully dissent. In my judgment, Johnson’s February 13, 2001 § 2255

petition for writ of habeas corpus should not have been dismissed as untimely

because the one-year statute of limitation on the claim asserted 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 two prerequisite state convictions

relied upon by the district court to enhance Johnson’s sentence under the career

offender category of the Sentencing Guidelines.

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

state criminal conviction is a “fact” within the meaning of 28 U.S.C. § 2255 ¶ 6(4).

See United States v. Gadsen, 332 F.3d 224, 229 (4th Cir. 2003) (holding that “the

federal statute of limitations begins running when the state court conviction is

conclusively invalidated”); United States v. Hoskie, 144 F. Supp.2d 108, 111 (D.

Conn. 2001) (holding that “the one-year statute of limitations 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”). 

With this Court’s decision and the decision in Brackett v. United States, 270

F.3d 60, 68 (1st Cir. 2001) (holding that “the operative date under § 2255(4) is not

the date the state conviction was vacated, but rather the date on which the defendant
23

learned, or with due diligence should have learned, the facts supporting his claim to

vacate the state conviction”), there is a clear split in the circuits, which at some point

should be resolved by Congress or the Supreme Court. Without question, if the rule

announced in this decision and in Brackett is consistently applied, in some circuits

there will be defendants serving time in federal prison under a federal sentence based

upon conviction of a state crime that the state court has authoritatively held the

defendant unquestionably did not commit, who would be barred from relief, while in

other circuits relief from such imprisonment will be readily available.

The relevant section, 28 U.S.C. § 2255 ¶ 6(4), provides:

A 1-year period of limitation shall apply to a motion under this

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

. . . .

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

presented could have been discovered through the exercise of due

diligence.

As a “fact” within the meaning of this section, it is obviously new and not

previously discoverable because until the state court actually entered the judgment

reversing seven outstanding convictions, including Johnson’s July 5, 1989

conviction, it had yet to happen and therefore, by definition, could not be a fact at all.

See Black’s Law Dictionary 610 (7th ed. 1999) (defining “fact,” “1. Something that

actually exists”); Webster’s Third New International Dictionary 813 (1993) (defining
24

“fact,” “1: a thing done”); The American Heritage Dictionary of the English

Language 46 (1975) (defining “fact,” “1. something known with certainty”); Black’s

Law Dictionary 738 (3d ed. 1933) (defining “fact,” “1– a thing done”); 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, that is as far

as we go to ascertain its intent because we must presume that Congress said what it

meant and meant what it said.”). Until that date, the fact was that Johnson stood

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

convictions were relied upon by the sentencing court in one way or another in

deriving Johnson’s total offense level of 25 and a criminal history category of 6; and

(2) only one of the two required convictions relied upon by the district court to

enhance Johnson’s sentence as a career offender was a valid conviction. Without

Johnson’s vacated July 5, 1989 state conviction for distribution of cocaine, the

undeniable fact is that he was not a career offender within the meaning of the

Sentencing Guidelines. See, e.g., United States v. Duty, 302 F.3d 1240, 1241 (11th

Cir. 2002) (noting that a defendant is a “career offender” under the Sentencing

Guidelines if, inter alia, “the defendant has at least two prior felony convictions for

either a crime of violence or a controlled substance offense”); U.S.S.G. § 4B1.1. The
25

sentencing court did not rely upon the underlying conduct that resulted in those

convictions, but instead simply relied upon the mere 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 criminal history

category of 6, qualifying him for a sentencing range of 110 to 137 months’

imprisonment. See U.S.S.G. Ch. 5, Pt. A. The district court, however, relied upon

the “facts” of 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 enhancement, the district court enhanced the total offense level from

25 to 32 with a criminal history category of 6, qualifying Johnson for a sentencing

range of 151 to 188 months’ imprisonment. See id. § 4B1.1(b). The district court

sentenced Johnson to 188 months’ imprisonment, the highest end of that sentencing

range. See id. Ch. 5, Pt. A. 

As a timely petition, the case should be remanded for the district court to

consider Johnson’s claims on the merits. If that petition is granted and a resentencing

is ordered, Johnson may indeed be faced with some new problems.

Johnson’s state petition did not assert that he was innocent of the facts which

supported his conviction, but simply alleged that although he pled guilty in each case,
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the convictions were nonetheless invalid because he did not affirmatively waive his

right to counsel. The state made no genuine attempt to defeat his claim, perhaps

because Johnson had already served the state prison sentences accompanying those

state convictions. This lack of defense to the state petitions is reflected in the state

court’s opinion, which leaves some doubt as to whether Johnson met the Strickland

standard for relief from a claim of ineffective assistance 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, filed his Petition for Writ of Habeas Corpus

alleging that his pleas in seven cases in Cook County Superior Court

were not voluntary in that he did not knowingly, intelligently and

voluntarily waive his right to counsel at the hearing on the entry of his

guilty pleas. The cases that were challenged by Petition were numbered

83F-9 [Feb. 11, 1989 – burglary], 88F–32 [Mar. 9, 1988 – conversion],

88M-43 [Mar. 9, 1988 – contempt], 89F-122 [July 5, 1989 –

distribution of cocaine], 90F-383 [Dec. 5, 1990 – theft and violation of

probation], 92F-36 [Mar. 11, 1992 – possession of cocaine] 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 presence and use of an attorney.

The State responded denying the allegations but have not filed

anyfurther transcripts of the hearing which would support their position.

This Court findings that the record in these cases does not show

an affirmative waiver of his right to an attorney. . . .
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IT IS HEREBY ORDERED that Petitioner’s Petition For Writ of

Habeas Corpus is hereby GRANTED and the convictions in the abovecited cases are hereby reversed.

Regardless of the ground for the decision, this state court judgment reversed

those convictions, and they are no longer valid convictions upon which a sentencing

court could rely. That state court judgment is entitled to the same fact analysis as if

the convictions had been reversed on the basis of irrefutable evidence that a defendant

was in fact innocent of the crimes for which he had been convicted. If the state

court’s vacatur of the seven state convictions came before the sentencing in this case,

it would have been clear error for the court to rely on the fact of conviction. Without

those convictions to rely upon, an analysis of Johnson’s PSI would show: (1) only

three criminal history points derived from Johnson’s November 13, 1989 sale of

cocaine conviction, corresponding to an offense level of 25 and a criminal history

category of 2; and (2) an insufficient number of prior offenses (one) to support a

career offender enhancement. 

At the time of sentencing, the PSI properly noted that U.S.S.G. § 4A1.3

provides that a sentencing court may depart upward if “reliable information indicates

that the criminal history category does not adequately reflect the seriousness of the

defendant’s past criminal conduct or the likelihood that the defendant will commit

other crimes.” U.S.S.G. § 4A1.3. This Court has affirmed several circumstances
28

where a district court applied 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 defendant’s prior juvenile offenses and other offenses too

remote to use in calculating a criminal history under the guidelines); 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 the

sentenced offense); United States v. Spraggins, 868 F.2d 1541 (11th Cir. 1989)

(three-level criminal history upward departure for defendantwith history of molesting

children, the need to deter such conduct in the future, and to account for defendant’s

older previous crimes); United States v. Dorsey, 888 F.2d 79 (11th Cir. 1989) (upheld

district court’s upward departure to a career offender, even though defendant did not

have two qualifying prior felony convictions under 4B1.1). 

Based on the information contained in the PSI, it may well be that a departure

upward would be appropriate, but these are matters not before us at this time. The

sole issue before us is whether Johnson’s § 2255 petition is timely because it was

filed within one year of the Georgia state court’s vacatur of Johnson’s seven prior

state convictions. I would hold that it was timely, would reverse the decision of the

district court to the contrary, and would remand to the district court for consideration

of the petition on its merits.