FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

 DECEMBER 30, 2009

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 09-12205

Non-Argument Calendar

________________________

D. C. Docket Nos. 08-80204-CV-DMM,

02-80016-CR-DMM

JORGE ARTURO ARROYO,

Petitioner-Appellant,

versus

UNITED STATES OF AMERICA,

Respondent-Appellee.

________________________

Appeal from the United States District Court

for the Southern District of Florida

_________________________

(December 30, 2009)

Before BLACK, PRYOR and KRAVITCH, Circuit Judges.

PER CURIAM:

Jorge Arturo Arroyo appeals the district court’s dismissal of his motion to
vacate his sentence under 28 U.S.C. § 2255 on the ground that the motion was

time-barred. We affirm.

On July 19, 2002, Arroyo was sentenced in federal district court to 120

months’ imprisonment after pleading guilty to conspiracy to possess with intent to

distribute 5 kilograms of cocaine, in violation of 21 U.S.C. § 846. In determining

Arroyo’s criminal history for sentencing purposes, the probation officer identified

several prior state court convictions dating back to 1993. These prior convictions

increased Arroyo’s criminal history points at his federal sentencing and placed

Arroyo in the criminal history category III. As a result, Arroyo faced a statutory

mandatory minimum sentence of 120 months’ imprisonment and was not eligible

to be sentenced below the mandatory minimum under the safety-valve provision.

21 U.S.C. § 841(b)(1)(A); U.S.S.G. § 5C1.2. Arroyo did not directly appeal his

conviction or sentence, and his conviction became final ten days after the judgment

was entered– or August 5, 2002– when the time to file an appeal expired. See

Adams v. United States, 173 F.3d 1339 (11th Cir. 1999).

In April 2003, Arroyo wrote to the state court clerk’s office seeking records

from his state-court convictions and advising the clerk’s office that he needed the

documents to prepare his state motion for post-conviction relief under Fla. R.

Crim. P. (“Rule”) 3.850. He wrote again in May, July, September, and December

2
2003, and in February 2004. He received copies of the records in January and

November 2005. On March 8, 2006, he filed his Rule 3.850 motion. The state

court granted relief, vacated the convictions, and set a hearing to determine if the

state wished to retry Arroyo. At the hearing in November 2007, the state declined

to prosecute, and the state court dismissed the cases by order dated January 25,

2008. On February 20, 2008, Arroyo filed his federal § 2255 motion challenging

his sentence on the ground that the prior state convictions used to enhance his

sentence had been vacated.

The district court ordered the parties to address whether the motion was

timely. Arroyo asserted that the statute of limitations began to run on January 25,

2008, when he received the state court order vacating his prior convictions.

Arroyo explained that he had acted with due diligence to overturn his prior state

convictions since his federal conviction in 2002. He noted that he filed his § 2255

motion within two months of receiving the state court’s vacatur order.

The government responded that the motion was untimely because the statute

of limitations began to run when the facts supporting the § 2255 claim could have

been discovered through due diligence. It explained that Arroyo failed to act with

the necessary diligence because he did not file his state post-conviction motion

attacking the state convictions until March 2006, more than four years after his

3
federal conviction was final.

The magistrate judge recommended dismissing the motion as time-barred,

finding that, under 28 U.S.C. § 2255(f)(4), the limitations period triggered once

Arroyo was on notice of the state court vacatur, see Johnson v. United States, 554

U.S. 295, 125 S.Ct. 1571 (2005), but that Arroyo could not show he acted with due

diligence in obtaining the vacatur. The magistrate judge defined diligence as the

timely filing of a state post-conviction motion and measured the timeliness from

the date of the federal sentencing and judgment. The magistrate judge found that

Arroyo had waited three years after his federal conviction became final to file his

state post-conviction motion, even though he was aware earlier that his state

convictions were invalid because the state court had failed to advise him of the

possible deportation consequences of his guilty plea.

Arroyo objected to the magistrate judge’s recommendation, asserting that he

had acted with diligence and had been waiting for the records from the state court

in order to file his state post-conviction motion. He noted that state law in effect at

the time of his federal conviction precluded any challenge to the validity of the

plea until the date on which deportation proceedings commenced. Once the

Florida Supreme Court changed that requirement in State v. Green, 944 So.2d 208

(Fla. 2006), he promptly filed his motion.

4
The district court dismissed the motion as time-barred, citing Rivers v.

United States, 416 F.3d 1319 (11th Cir. 2005). First, the court found that diligence

meant prompt action by the movant as soon as the movant was in a position to

realize he had an interest in challenging the prior conviction. In the instant case,

Arroyo did not begin to seek records until nine months after the federal judgment

became final and he had written only six letters seeking copies of his state records

during the three-and-a-half year period between the federal conviction and the date

on which Arroyo filed his state Rule 3.850 motion. The court further found that

Arroyo should have known of the possible deportation consequences of his guilty

pleas in state court when he hired an immigration attorney to discuss citizenship in

2001.

1

Arroyo appealed and requested a certificate of appealability, which the

district court granted on the following issue: “Whether petitioner exercised the

requisite due diligence in seeking vacatur of his state-court convictions, such that

his petition was timely under § 2255(f)(4).”

In reviewing the denial of a § 2255 motion, we review legal issues de novo

and factual findings for clear error. Lynn v. United States, 365 F.3d 1225, 1232

The district court identified 2001 as the date, but the record shows that an attorney advised 1

Arroyo in 1999 that his prior convictions rendered him ineligible to become a citizen and that he

could face deportation if he initiated citizenship proceedings. 

5
(11th Cir. 2004). The determination of whether a party acted with due diligence is

a factual finding subject to clear error review. Drew v. Dep’t of Corr., 297 F.3d

1278, 1283 (11th Cir. 2002).

Section 2255 provides that a motion to vacate a sentence must be filed

within one year of the latest of, relevant to this appeal, “the date on which the facts

supporting the claim or claims presented could have been discovered through the

exercise of due diligence.” 28 U.S.C. § 2255(f)(4). In cases involving a

state-court vacatur of a federal prisoner’s prior state conviction, which was used to

enhance his federal sentence, the limitation period begins to run on the date that the

prisoner receives notice of the order vacating the predicate conviction. Johnson,

544 U.S. 295, 302, 304-07, 308. Thus, a prisoner may file a § 2255 motion up to

one year from the date on which he received notice of the order vacating his prior

state conviction if he exercised due diligence in seeking to overturn his prior

conviction. See id. at 298. At issue in this case is whether Arroyo exercised due

diligence under Johnson to obtain the vacatur.

2

Arroyo did not file his state motion for post-conviction relief until 2006,

more than three-and-a-half years after the district court imposed the federal

The government concedes that the state court vacatur qualifies as a matter of fact for 2

purposes of the limitations period and that Arroyo filed his motion within one year of the state court

order vacating his prior convictions. 

6
sentence that was enhanced by the state court convictions. In general, a delay of

this length will negate a finding of due diligence. See Johnson, 544 U.S. at 310-

311; Rivers 416 F.3d at 1322-23 (concluding the movant failed to act with due

diligence when he waited three years to file his state habeas petition).

Arroyo contends that his actions during those three-and-a-half years showed

that he acted with diligence and that filing his state post-conviction motion earlier

would have been futile because state law prevented him from bringing his claim.

Arroyo’s arguments are without merit.

First, Arroyo has not shown that his actions qualified as due diligence. He

wrote only six letters over three years in an attempt to gain records, and he did not

begin to correspond with the clerk’s office seeking those records until nine months

after his federal conviction. Waiting nine months after sentencing to seek records

does not show that Arroyo acted diligently to obtain the vacatur.

Second, the changes in state law are not relevant. In State v. Green, the

Florida Supreme Court held that the limitations period for filing a Rule 3.850

motion begins to run when the judgment and sentence become final “unless the

defendant could not, with the exercise of due diligence, have ascertained within the

two-year period that he or she was subject to deportation.” 944 So.2d at 210. In

reaching this conclusion, the court overturned its prior holding in Peart v. State,

7
756 So.2d 42, 48 (Fla. 2000), which required the defendant to show that he had

been threatened with deportation in order to challenge his conviction on the ground

that the state court failed to advise him of the deportation consequences of his

plea. Green, 944 So.2d at 218. Arroyo’s claim that he could not file a Rule 3.850

3

motion before Green and that Green renders his Rule 3.850 motion timely fails

because (1) Arroyo, in fact, filed his Rule 3.850 motion several months before

Green was decided, and (2) Arroyo knew of the immigration consequences of his

pleas and convictions in state court when he consulted an immigration attorney in

1999.

4

Therefore, even though there was a change in state law, that change had no

impact on Arroyo’s actions and the determination of whether he acted with due

diligence. The purpose of the Green decision was to trigger the limitations period

when the movant learned or could have ascertained the deportation consequences

of his plea. Because Arroyo knew of the immigration consequences resulting from

his state convictions in 1999, before he entered his plea in federal court, yet waited

over three years after his federal conviction to file his Rule 3.850 motion, Arroyo

Moreover, “[a] defendant filing outside the two-year limitation period must allege and 3

prove that he . . . could not have ascertained the immigration consequences of the plea with the

exercise of due diligence within the two-year period.” Green, 944 So.2d at 219.

Even if Green applied, Arroyo would not be entitled to relief because he knew of the 4

immigration consequences in 1999 and did not file a motion for post-conviction relief within two

years of that date. See Green, 944 So.2d at 218.

8
cannot show that he acted with due diligence.

Accordingly, the district court’s order is

AFFIRMED.

9