Aron v. U.S., No. 99-14518.

• Decision Date: 13 May 2002
• Docket Number: No. 99-14518.
• Citation: 291 F.3d 708
• Parties: Anthony ARON, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

291 F.3d 708

Anthony ARON, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

No. 99-14518.

United States Court of Appeals, Eleventh Circuit.

May 13, 2002.

Kathleen Cooper Grilli, Law Offices of Grilli & Corvato, P.A., Hollywood, FL, for Petitioner-Appellant.

Anne Ruth Schultz, Lisette M. Reid, Mark Fagelson, Miami, FL, for Respondent-Appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before CARNES, BARKETT and KRAVITCH, Circuit Judges.

BARKETT, Circuit Judge:

Anthony Aron, a federal prisoner, appeals the dismissal as untimely of his motion to vacate his sentence pursuant to 28 U.S.C. § 2255. Aron argues that his motion was timely under 28 U.S.C. § 2255(4) because he exercised due diligence in discovering the facts supporting his claim, and his motion was filed within one year of the date on which he discovered those facts. Alternatively, he argues that the district court erred in refusing to hold an evidentiary hearing on his claim to have exercised due diligence. We reverse and remand.

BACKGROUND

Aron was convicted of conspiracy to possess cocaine with the intent to distribute and of possession of cocaine with the intent to distribute in violation of 21 U.S.C. §§ 841(a)(1) and 846. He was sentenced to 151 months' incarceration, with a five-year term of supervised release. Aron filed a direct appeal from his conviction, arguing that the trial court should have granted a mistrial based upon prosecutorial misconduct, that it gave improper jury instructions, and that it erred by declining to give a requested jury instruction. We affirmed his conviction on September 23, 1994. United States v. Aron, 37 F.3d 636 (11th Cir.1994) (Table).

On July 4, 1998, Aron filed a motion pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. His motion raised three claims of ineffective assistance of appellate counsel, based on his attorney's failure to appeal the term of his sentence and the sufficiency of the evidence at trial, and on an alleged conflict of interest created by the attorney's representation of both Aron and his co-defendant on appeal. A final claim challenged the legality of his conviction and sentence on the ground that 21 U.S.C. §§ 841 and 846 were not published in the Federal Register as mandated by Congress.

The government responded to the motion by arguing that it was untimely under the one-year period of limitation imposed by the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA). Aron answered that, in spite of numerous letters and telephone calls to his appellate attorney, he did not receive a copy of the brief that had been filed in his direct appeal until September 4, 1997, which was when he learned of his attorney's failure to appeal his sentence. Since his § 2255 motion was filed within one year of that date, he argued that it was timely under § 2255(4), which allows petitioners to file within one year of "the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence."

The magistrate recommended denying Aron's motion as untimely, finding that he had offered no proof of any due diligence on his part after discovering that his conviction was affirmed. Aron then filed sworn objections to the magistrate's report and recommendation, listing his efforts to obtain information about his appeal. The government did not present evidence contradicting Aron's assertions. The district court entered an order adopting the magistrate's report and recommendation, and we granted a certificate of appealability on the question whether the district court erred in its determination that Aron's motion was barred by the one-year period of limitation.

DISCUSSION

The AEDPA amended 28 U.S.C. § 2255 to impose a one-year "period of limitation" for filing a motion to vacate, set aside or correct a sentence. The limitation period runs from the latest of:

(1) the date on which the judgment of conviction becomes final;

(2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action;

(3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or

(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. Aron argues that his motion was timely under § 2255(4) because it was filed within a year of the date he received a copy of the brief that was filed in his direct appeal, and he exercised due diligence in discovering the failure of his attorney to appeal his sentence by that date.

To our knowledge, only one court has previously discussed the standard of review of a district court's decision concerning due diligence in the context of § 2255. See Montenegro v. United States, 248 F.3d 585 (7th Cir.2001), partially overruled on other grounds by Ashley v. United States, 266 F.3d 671 (7th Cir.2001). Drawing an analogy to Rule 52(a) of the Federal Rules of Civil Procedure, which "assigns to the trial judge the responsibility of determining not only the historical events that are relevant to how the case should be decided but also the legal significance of those events," id. at 591 (quoting Mucha v. King, 792 F.2d 602, 605 (7th Cir.1986)), the Seventh Circuit reasoned that "due diligence" is a legal characterization — like negligence, possession, ratification, and principal place of business — and should be reviewed for clear error. Id. We agree. In the context of a motion pursuant to § 2255(4), we will therefore review for clear error a district court's finding with regard to whether the petitioner exercised due diligence.

The government emphasizes that the one-year limitation period of § 2255(4) begins to run when the facts could have been discovered through the exercise of due diligence, not when they were actually discovered. This is indeed the language of the statute; the beginning of the one-year period is triggered by a date that is not necessarily related to a petitioner's actual efforts or actual discovery of the relevant facts. Of course, if a court finds that a petitioner exercised due diligence, then the one-year limitation period would begin to run on the date the petitioner actually discovered the relevant facts, because the dates of actual and possible discovery would be identical. But if the court finds that the petitioner did not exercise due diligence, the statute does not preclude the possibility that the petitioner's motion could still be timely under § 2255(4). For example, if the court concludes that, with the exercise of due diligence, the relevant facts could have been discovered two months earlier than the petitioner (who it finds did not exercise due diligence) actually discovered them, then the motion would still be timely if filed within ten months of the date of actual discovery. Nonetheless, the court should begin the timeliness inquiry under § 2255(4) by determining whether the petitioner exercised due diligence because, as previously noted, if he did so, the limitation period would not begin to run before the date he actually discovered the facts supporting the claim.¹

As the government concedes, § 2255(4) does not require the maximum feasible diligence, but only "due," or reasonable, diligence. See Wims v. United States, 225 F.3d 186, 190 n. 4 (2d Cir.2000). Due diligence therefore does not require a prisoner to undertake repeated exercises in futility or to exhaust every imaginable option, but rather to make reasonable efforts. Moreover, the due diligence inquiry is an individualized one that "must take into account the conditions of confinement and the reality of the prison system." Montenegro, 248 F.3d at 592; Wims, 225 F.3d at 190-91 (citing Easterwood v. Champion, 213 F.3d 1321, 1323 (10th Cir. 2000)). Aron contends that the deficiencies in his appellate counsel's performance did not become known to him until September 4, 1997, when he received a copy of the brief that had been filed in his appeal. Although he acknowledges that he received a copy of the opinion affirming his conviction in 1994, the opinion did not indicate which grounds had been raised on appeal, and so Aron was not aware that his attorney had failed to appeal his sentence, as Aron claims he had instructed him to do.

In assessing whether Aron's petition was timely, the magistrate (and the district court, by adopting the magistrate's report) assumed that Aron was required to show due diligence from the time his conviction became final in 1994.² We think this assumption was incorrect, because the law imposed no diligence requirement on habeas petitioners until AEDPA was enacted on April 24, 1996. Therefore Aron's allegations, if true, mean only that he did more than the law requires.

Before AEDPA was enacted, there was no limitation period for filing a petition pursuant to § 2255. If prisoners wished to spend more time preparing their petitions — albeit at the potential cost of suffering a longer period of unlawful confinement — the law afforded them that opportunity. In reliance upon that law, many prisoners had not filed within one year, as the subsequently enacted legislation required. Therefore, in Goodman v. United States, 151 F.3d 1335 (11th Cir.1998), we held that the one-year limitation period should start to run from the date of AEDPA's enactment, if the conviction being challenged became final before the enactment date.³ We did not apply the new limitation period to cases in which the period for filing had expired before the new requirement was enacted "because `[i]t would be unfair and impermissibly retroactive' to cut...