### FILED U.S. COURT OF APPEALS ELEVENTH CIRCUIT December 22, 2003 THOMAS K. KAHN CLERK [PUBLISH]

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

________________________ No. 01-14830

_______________________ D.C. Docket N

o. 01-00014-CV-W

DO-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

_______________________ (December

22, 2003) ON PETITION FOR REHEARING EN BANC

(Opinion August 5, 20 03) Before EDMONDSON, Chief Judge, TJOFLAT, ANDERSON, BIRCH, DUBINA, BLACK, CARNES, BARKETT, HULL, MARCUS and WILSON, Circuit Judges.2

O R D E R: The Court having bee

n polled at the reques

t of one of the me

mbers of the Court and a maj ority of the Cir cuit Judges who are i

n regular active se

rvice not having voted in favor of it (Rule 35, Federal Rules of Appellate Procedure; Eleventh Circuit Rul e 35-5), the Petition for Rehearing En Banc is DENIED.

/s/ J. L. Edm

ondson CHIEF JUDGE1 United States v. Gadsen , 332 F.3d 224 (4th Cir. 2003).

2 See Webster's Third New International Dictionary 813 (1993) (defining ‘fact,’ ‘1: a thing done’); The American Heritage Dict ionary of the En glish Language 46 (1975) (defining ‘fact,’ ‘1. something kno

wn with certainty

’); Black's Law Dictionary 738 (3d ed.1933) (defining ‘fact,’ ‘1-a thing done’). 3 BARKETT, Circuit Judge, disse nting from the de

nial of rehearing en banc : I believe the issue i

n this case mer

its en banc consideration. The panelmajority holds that when a fe

deral court bases an enhanced sentence on a state conviction, the subsequent state vacatur of that very same conviction is not a fact supporting a prisoner’s habeas claim that his sentence should be reduced accordingly. I do not believe the pa nel-majori

ty’s statutor

y interpretati

on of 28 U.S.C. § 2255 ¶ 6(4) (2003 ) is supported by law or lo gic. On the contrary, I believe that Judge Ron

ey’s dissent a

nd Judge Wilkinson’ s opinion for the Fourt h Circuit 1 correctly explicate the rel evant law. It is axiomatic that cour ts must give words their o rdinary meaning. 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 pr esume that Congr

ess said what it meant and meant what it said.”). The

ordinary m

eaning of “fac

t” refers to “a thing done” that can b e “known with certainty.” 2 In this case, the v acatur of state conviction is a fact because it is something that ac tually occurre

d and can be3 See Webster's Third N ew Internat

ional Dictionary

813 (1993) (defi

ning “fact” a

s: “6 usu pl a : an y of t he ci rcum sta nces of a c ase a t la w as it e xis ts o r is all eged to e xis t in real ity: something proved by the evidence to be or alleged to be of actual occurrence b: the reality or events or things the actual occurrence or existence of which is to be determined by evidence.”); American Heritage College Dictionary (1982) (defining “fact” as “[t]he aspect of a case at law, comprising events determined by evidence as distinguished from interpr etation of law: The jury made a finding of fact.”). 4 proven in support of Johnson’s claim. However, the panel-majority concludes that a vacatur cannot be a fact because it comes from an authori tative legal source

. Although distinctions are often made between the facts and the legal consequences of a case, 3 no metaphysical barrier prevents a legal consequence from som etimes operating as a fac

t. With regard

to Johnson’s federa

l habeas claim

, the vacatur of his state court conviction is the operative fact that supports his claim, while a reduction in his sente

nce would be the possible “legal eff ect or consequence

” of that fact. The panel-majority suggests that the underlying state Gideon violations–and not the state vacatu rs–are the facts that s upport Johnson ’s habeas claim. Simultaneously, the panel-majority asserts that the underlying constitutional claims would not h ave be en suf ficie nt to supp ort a federa l habe as cla im, acknowledging that “[t]he entire point of Custis [ v. United States , 511 U.S. 485 (1994)] and Daniels [ v. United States , 532 U.S. 374, 382 (2001)] was that litigants should not bypass sta

te courts to litigate

the facts underly

ing their state convictions during challenges to a federal sentencing determination.” Johnson v.4 See, e.g., Williams v. Taylor , 529 U.S. 420, 436 (2000) (“AEDPA's purpose to further

the principles of

comity, fina

lity, and fe

deralism . . . Fed

eral habeas co

rpus principles mu

st inform and shape t

he historic and stil

l vital relation of

mutual respect a

nd common purpose existing between the States and the federal courts. In keeping this delicate ba lance we have been careful to limit the scope of federal intrusion into state criminal adjudications and to safeguard the States' inter

est in the integr

ity of their c

riminal and collat

eral proceedin

gs.”); Coleman v. Thompson , 501 U.S. 722, 726 (1991) ("This is a case about federalism. It concerns the respe ct that federal courts owe the States and the States' procedural rules when reviewing the claims of state prisoners in

federal habea

s corpus"); McCleskey v. Zant, 499 U.S. 467, 493 (1991) ("[T]he doctrines of procedural default and abuse of the writ are both designed to lessen the injury to a State that results through reexamination of a state conviction on a ground that the State did not have the opportun

ity to addre

ss at a prior, appr

opriate time; and b

oth doctrines see

k to vindicate the State's interest in the finality of its criminal judgments."). 5 United States , 340 F.3d 1219, 1225 ( 11th Cir. 2003). T hus, the panel-m

ajority paradoxically a

sserts that federa

l courts are not the p

roper forum f

or litigating facts underlyi

ng a state conviction,

but these very sa

me facts can trigger the sta

tute of limitations for federal habeas review. The panel-ma

jority also supports its interpreta tion by arguing tha

t it promotes AED

PA’s goal of fin

ality. But tha

t is not AEDPA’ s only goal. The Supreme Court

has continually a

sserted that AED

PA is designed “

to further the principles of comity, finality, and federalism.” See, e.g. , Woodford v. Garceau , 123 S.Ct. 1398, 1401 (2003); Duncan v. Walker , 533 U.S. 167, 178 (2001); Williams v.Taylor , 529 U.S. 420, 436 (2000). Often d ecisions will simultaneously promote all th ree of these principl es. In many inst ances, the Supreme Court

has extolled the virt

ues of finality b ecause of its rela tion to comity. 4 However, in this case, the feder al court poses no risk o f disrupting the5 The Supreme Court h as explicitly i

nstructed prisone

rs to attack their

convictions in state court. Daniels , 532 U.S. at 382 (“After an enhanced federal sentence has been imposed . . ., the person sentence

d may pursue

any channe

ls of direct or co

llateral review

still available to challenge his p

rior conviction.”

); Custis , 511 U.S. 485 (statin g that a prisoner

who was still in custody on his prior convi ctions cou ld “attack h is state se ntences [i n state cour t] or thro ugh federal habeas review”).

6 In this case,

the result is even

more cruel and un

fair, since this Co

urt has previously instructed this Appellant to do precisely what he has done. In a pr ior opinion affirming Johnson’s sentence

, we included the f

ollowing cavea

t in a footnote: “We n

ote in passing tha

t, should Johnson obtain a

t some future date

the vacation of th

e state court con

viction[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, 73 F.3d 1108 (11th Cir. 1995). 6 finality of a st

ate action. The state itself has dec ided to vacate the conviction. The Supreme Court

has stated that in the

habeas context a fe

deral court should not “deprive [a] state-court judgment of its norm al force and effect.” Daniels , 532 U.S. at 378. T

his is exactly w

hat the panel-m

ajority does by

stripping the state court of the ability to e xculpate criminal defend ants. In summar

y, I believe t

hat this particular

litigant, who follo

wed the instructions of the Su

preme Court, 5 who followed the dir ect instructions of t

his Court, 6 who followed the pr oper instructions of t

he state and was able to have his state convictions tim

ely vacated,

and who probably

relied on the plain la

nguage of § 2255 ¶ 6(4), is unfa

irly being denied

his right to present hi s habeas petition.