Johnson v. U.S., No. 01-14830.

• Decision Date: 05 August 2003
• Docket Number: No. 01-14830.
• Citation: 340 F.3d 1219
• Parties: Robert JOHNSON, Jr., Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

340 F.3d 1219

Robert JOHNSON, Jr., Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

No. 01-14830.

United States Court of Appeals, Eleventh Circuit.

Decided: August 5, 2003.

Benjamin Warren Pope and Courtland L. Reichman (Court-Appointed), King & Spalding, Atlanta, GA, for Petitioner-Appellant.

John L. Lynch, Columbus, GA, Jessica Joan-Marie Hagen, Macon, GA, for Respondent-Appellee.

Appeal from the United States District Court for the Middle District of Georgia.

Before BLACK, RONEY and STAPLETON^*, Circuit Judges.

BLACK, Circuit Judge:

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 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 convictions were 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, 73 F.3d 1108 (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, 134 L.Ed.2d 659 (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 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, 128 L.Ed.2d 517 (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 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, 149 L.Ed.2d 590 (2001); see also Lackawanna County District Attorney v. Cross, 532 U.S. 394, 403-04, 121 S.Ct. 1567, 1574, 149 L.Ed.2d 608 (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.

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.

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 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).

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...