Brackett v. United States ( 2001 )


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  •          United States Court of Appeals
    For the First Circuit
    No. 01-1466
    SCOTT BRACKETT,
    Petitioner, Appellant,
    v.
    UNITED STATES OF AMERICA,
    Respondent, Appellee.
    APPEAL FROM THE UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF MASSACHUSETTS
    [Hon. William G. Young, U.S. District Judge]
    Before
    Lynch and Lipez, Circuit Judges,
    Doumar*, Senior District Judge.
    Neil A. Hourihan for appellant.
    Dina Michael Chaitowitz, Assistant United States Attorney,
    with whom James B. Farmer, United States Attorney, was on brief for
    appellee.
    *Of the    Eastern   District     of   Virginia,   sitting   by
    designation.
    October 31, 2001
    LYNCH, Circuit Judge.    This case raises an issue important
    to the administration of criminal law: the accrual date for the
    application of the one year limitations period in 
    28 U.S.C. § 2255
    (4)
    (1994 & Supp. II 1996) to a federal prisoner who petitions to reduce
    his federal sentence because the underlying state convictions (on which
    the length of the federal sentence is predicated) have since been
    vacated.
    Scott T. Brackett is a federal prisoner who pled guilty in
    July 1997 to conspiracy to distribute and possession with intent to
    distribute methamphetamine in violation of 
    21 U.S.C. § 846
     (1994) and
    
    21 U.S.C. § 841
    (a)(1) (1994 & Supp. 2000). His federal sentence of 108
    months became final on March 12, 1998. More than two years later, on
    December 18, 2000, he filed a petition under 
    28 U.S.C. § 2255
     to set
    aside his sentence. His claim was that his federal sentence, as a
    career offender under U.S.S.G. § 4B1.1, was predicated on his having
    been convicted at least twice before of state crimes; that those
    convictions had now been set aside by the state court; and that he
    should now be resentenced. He says he is no longer a career offender
    and his sentencing range consequently is only 30 to 37 months.
    Brackett argues that because he has already served this time he should
    now be released.
    -2-
    The district court dismissed the petition as untimely under
    
    28 U.S.C. § 2255
    . The district court later denied reconsideration on
    the grounds that Brackett had not brought the petition within one year
    of the date the sentence became final as required by 
    28 U.S.C. § 2255
    (1) and that none of the other limitation provisions within that
    statute applied. Gonzalez v. United States, 
    135 F. Supp. 2d 112
    , 123-
    25 (D. Mass. 2001). The district court also issued a certificate of
    appealability on the question of whether the accrual provision set
    forth in § 2255(4) was applicable here. Id. at 125-26.
    I.
    A chronology of the pertinent events is helpful to understand
    the issues presented.    In 1991, Brackett was convicted in state
    district court of assault and battery with a dangerous weapon, on his
    admission to sufficient facts, and was sentenced to 60 days. In 1993,
    Brackett pled guilty to a state charge of assault and battery with a
    dangerous weapon and received a two year suspended sentence. Further,
    in 1995 he also pled guilty to assault with a dangerous weapon in state
    court and was placed on probation.
    On September 5, 1996, he was arrested on federal charges of
    conspiracy to distribute and possession with intent to distribute
    methamphetamine.
    On October 9, 1997, Brackett moved in state court to vacate
    the 1991 and 1993 convictions. He argued that the 1991 and 1993 plea
    -3-
    colloquies were insufficient and that he was intoxicated at the time of
    the plea proceedings. In October of 1997, a state district judge
    denied his motion as to the 1991 conviction. In the 1997 memorandum
    and ruling from the state district court, the judge found that after
    seven years there was no preserved record of the defendant’s plea
    conducted before the court. The 1991 case file indicated that Brackett
    was represented by counsel, and had executed the standard written jury
    waiver. The reviewing judge noted that the familiar events of federal
    defendants returning to the state court to vacate state convictions
    often repeated themselves in our state courts system as
    defendants and defense attorneys seek all avenues of relief
    from federal sentencing guidelines. The resources of state
    courts, including those of Massachusetts, are called upon
    time and again to turn the state criminal justice system
    upside down to find any possible reason to vacate state
    convictions to afford federal defendants relief from what
    apparently is becoming a more and more unworkable, mandatory
    federal sentencing system.
    Having reviewed the casefile in this matter at
    length, and the materials submitted by the defendant in
    support of his motion, I find no justifiable grounds to
    allow the defendant’s motion. Further, it is to be noted
    that justice is not best served by the adoption of novel or
    convoluted arguments designed to ultimately afford
    defendants relief in state court from a mandatory federal
    sentencing system. That relief is best found within the
    federal system itself, be it within the federal courts or
    within the Congress.
    Brackett’s other effort, to withdraw the admission to
    sufficient facts in his 1993 case, was rejected by the state court on
    February 10, 1998. The reasons Brackett gave for undoing his 1993 plea
    were that the plea colloquy was incomplete and that Brackett was under
    -4-
    the influence of alcohol at the time and was unaware of the possible
    repercussions that could occur at a later date. The court noted that
    the tape recording of the plea colloquy no longer existed inasmuch as
    the defendant had delayed nearly five years in presenting the motion.
    Although Brackett had the right to appeal from the 1997 and 1998
    denials of his motions to vacate the 1991 and 1993 convictions under
    Rule 30(c)(8) of the Massachusetts Rules of Criminal Procedure, he did
    not do so.
    On February 19, 1998, Brackett was sentenced on the federal
    methamphetamine charges.     As a result of having two prior state
    convictions, he was in a criminal history category of VI, had an
    adjusted offense level of 29, and was sentenced as a career offender
    under U.S.S.G. § 4B1.1. At the time he was sentenced, the prior state
    convictions stood. The state courts had rebuffed his efforts to vacate
    those 1991 and 1993 convictions. If the state convictions had then
    been vacated, his sentence would have been in the 30-37 month range, as
    opposed to the 108 months he received. Gonzalez, 
    135 F. Supp. 2d at 117
    . On March 12, 1998, his federal sentence became final because
    there had been no appeal. Consequently the Antiterrorism and Effective
    Death Penalty Act ("AEDPA"), Pub. L. No. 104-132, 
    110 Stat. 1214
     (Apr.
    24, 1996), limit in § 2255(1) of one year from the date of the final
    judgment of conviction expired before Brackett filed his § 2255
    petition on December 18, 2000.
    -5-
    Only after his federal sentence was imposed did Brackett
    start yet another attempt to vacate his state convictions. On January
    3, 2000, he filed a new set of motions to vacate the 1991 and 1993
    convictions. In identical motions, Brackett asserted that he was
    denied effective assistance of counsel in 1991 and 1993 because counsel
    did not object to his pleading guilty even though counsel knew that he
    was intoxicated, and for other reasons.
    His year 2000 state motions for new trials on his 1993 plea
    and his 1991 plea were allowed by the state court when the state
    prosecutor's office agreed to the motions. There was no judicial
    finding that the pleas should be vacated due to constitutional
    violations. In fact, the charges against Brackett were pending in the
    state court system at the time this case was briefed to us.
    II.
    Under 
    28 U.S.C. § 2255
    , a prisoner in custody under sentence
    of a federal court, claiming the right to be released on the ground
    that the sentence was imposed in violation of the Constitution or laws
    of the United States, may petition the court that imposed the sentence
    to vacate, set aside or correct the sentence. The statute provides for
    a one year period of limitations, which 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
    -6-
    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
    . The question on the certificate of appealability
    concerns only the effect of subsection (4), and it is the only issue
    which we now consider.
    Brackett argues that "the date on which the facts supporting
    the claim or claims presented could have been discovered through the
    exercise of due diligence" must mean the date on which the state court
    vacated the prior criminal conviction. The government contends that
    the statutory language refers to situations where the underlying facts
    supporting the vacating of the state conviction were not known to the
    defendant and could not have been discovered through the exercise of
    due diligence; then the one year runs from the discovery of such facts
    (or when they could have been discovered).1 The government says that
    1    The government’s brief also argues at great length that
    the claim presented here is not cognizable under 
    28 U.S.C. § 2255
    . We do not decide this issue. First, this issue was not
    raised below. Indeed, the district court dismissed Brackett's
    petition without providing the government an opportunity to
    respond. The issue is outside of the scope of the certificate
    of appealability, and cannot be reviewed by this Court. Bui v.
    DiPaolo, 
    170 F.3d 232
    , 236-37 (1st Cir. 1999) (holding that in
    -7-
    because Brackett knew of the facts he used to support his state court
    motions well before the date of his federal sentencing, subsection (4)
    does not apply and this case is governed by subsection (1).        The
    government argues that Brackett's claim is time barred because more
    than one year has expired since "the date on which the judgment of
    conviction [became] final." 
    28 U.S.C. § 2255
    (1). We review de novo the
    issue of statutory interpretation. Trenkler v. United States, No. 00-
    1657, 
    2001 WL 1215366
    , at *2 (1st Cir. Oct. 16, 2001).
    The problem before us is best understood in context. Through
    several different mechanisms the federal sentencing guidelines increase
    the duration of imprisonment for a federal offender who has prior state
    or federal convictions. One of those mechanisms is the career offender
    enhancement found in U.S.S.G. § 4B1.1. Because the length of the
    federal sentences increases with prior state convictions, the
    a habeas case only issues certified for appeal in the
    certificate of appealability can be reviewed by the appellate
    court).   Second, in United States v. Tucker, 
    404 U.S. 443
    (1972), the Supreme Court allowed the use of § 2255 to attack a
    sentence and remanded for reconsideration of the sentence when
    the federal sentence took into account state convictions which
    violated the 6th Amendment right to counsel under Gideon v.
    Wainwright, 
    372 U.S. 335
     (1963). The government made a similar
    argument in United States v. Pettiford, 
    101 F.3d 199
    , 201 (1st
    Cir. 1996), where it tried to "limit the availability of §
    2255." We rejected this argument at that time and held that
    "whether on constitutional or grounds otherwise subject to
    collateral attack, we concur with the district court's
    recognition of federal habeas jurisdiction." Id.
    -8-
    sentencing guidelines have led to a cottage industry of diligent
    defense counsel seeking to vacate old state convictions in order to
    reduce the federal sentence. See United States v. Payne, 
    894 F. Supp. 534
    , 537 n.7 (D. Mass. 1995) (noting the "surprising infirmity" of
    Massachusetts state court convictions "as they are increasingly coming
    under intense scrutiny in the last ditch attempt to avoid" enhanced
    federal sentences). In this sense, as the Massachusetts state court
    judge noted in his 1997 denial of Brackett's motion to vacate, the
    federal sentencing guidelines have imposed an unwanted burden on the
    state courts, which are now faced with a flood of petitions from
    federal defendants and prisoners attempting to vacate state court
    convictions. These efforts often come many years after the date of
    those state convictions. This is particularly problematic because, as
    the Supreme Court noted in Lackawanna County District Attorney v. Coss,
    
    532 U.S. 394
    , 
    121 S. Ct. 1567
    , 1574 (2001), "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." Attempts to
    vacate or set aside state court convictions have posed a particular
    problem in Massachusetts, because in the state district courts, where
    a great many criminal offenses are tried, the records of the
    proceedings may be destroyed after two and one half years. Special
    Rule of the District Courts 211(A)(4) (1997).
    -9-
    The problem of whether to adjust federal sentences when a
    federal   defendant   asserts   that    the   state   convictions    were
    constitutionally invalid presents a number of issues. One was the
    issue of where a claim that the state conviction was invalid should
    first be heard.   In Custis v. United States, 
    511 U.S. 485
    , 493-97
    (1994), the Supreme Court held that the federal prisoner could not
    attack the validity of his prior conviction which raised his penalty
    from a maximum of 10 years to a mandatory minimum of 15 years in prison
    pursuant to the Armed Career Criminal Act, 
    18 U.S.C. § 924
    (e) ("ACCA"),
    during the federal sentencing proceedings, unless the attack was based
    on a deprivation of the right to counsel under Gideon v. Wainwright,
    
    372 U.S. 335
     (1963). Custis was animated by two policy interests: ease
    of administration and finality of judgments. Custis, 
    511 U.S. at
    496-
    97. Custis noted that it is easier to administer cases in which Gideon
    claims are made than cases that claim ineffective assistance of counsel
    or failure to assure a voluntary guilty plea.          
    Id. at 496
    .     In
    addition, finality is especially important where a defendant challenges
    a previous conviction because "the defendant is asking a district court
    'to deprive [the] [state-court judgment] of [its] normal force and
    effect in a proceeding that ha[s] an independent purpose other than to
    overturn the prior judgmen[t].'" 
    Id. at 497
     (quoting Parke v. Raley,
    
    506 U.S. 20
    , 30 (1992) (alterations in original)). Naturally, the
    Custis ruling applies whether the sentence enhancement was imposed
    -10-
    because of ACCA or because of the Sentencing Guidelines. United States
    v. Arango-Montoya, 
    61 F.3d 1331
    , 1336 (7th Cir. 1995); United States v.
    Garcia, 
    42 F.3d 573
    , 581 (10th Cir. 1994).
    After Custis, the "where" question became whether the
    constitutional infirmity of the state conviction could be raised
    initially in federal court by a § 2255 petition. In Daniels v. United
    States, 
    532 U.S. 374
    , 
    121 S. Ct. 1578
     (2001), the Supreme Court
    answered this question negatively, with the exception of convictions in
    violation of the Gideon right to counsel.      The Court said that a
    defendant may raise the issue of the validity of a state conviction in
    state court on direct appeal or in state post-conviction proceedings,
    or, if those routes had been exhausted, by petition for habeas under 
    28 U.S.C. § 2254
    . Daniels, 
    121 S. Ct. at 1582-83
    . But the Court would
    not permit leapfrogging of those state procedures to attack the state
    conviction initially by a federal § 2255 petition. The Court did leave
    open the possibility that a prisoner, who is prevented by no fault of
    his own from bringing a state proceeding to vacate, and was now barred
    by state law from doing so, could bring a § 2255 petition. Id. at
    1584.
    This means that, absent a Gideon challenge, the "where"
    question is answered: the initial attack on the validity of the state
    conviction should be brought in state court. Only after the state
    court proceedings are exhausted, as a general rule, can a prisoner come
    -11-
    to federal court to pursue a habeas claim. This rule is generally true
    both under § 2255, the federal post-conviction review for those in
    federal custody, and, more usually, under 
    28 U.S.C. § 2254
    , the habeas
    statute for those in state custody. O'Sullivan v. Boerckel, 
    526 U.S. 838
    , 842 (1999).
    In this case, Brackett has exhausted his state court remedies
    because he has managed to vacate two state convictions.         He has
    accomplished the first step necessary to have his sentence reviewed by
    a habeas court.    However, he must still contend with the time
    limitation contained in § 2255 -- that is, the question of when such a
    claim is no longer timely. Initially, we look at this question by
    analogy to the parallel habeas statute.
    AEDPA affected both federal post-conviction relief and
    habeas. The Supreme Court commonly interprets § 2255 and § 2254 in
    light of each other. See Lackawanna County, 
    121 S. Ct. at 1573
     (2001)
    (extending Daniels rule under § 2255 to a § 2254 case). Just as §
    2255, the statute that concerns us, has time limits, so too does §
    2244, which applies to § 2254 petitions.
    Section 2244(d)(1) provides that "[a] 1-year period of
    limitation shall apply for a writ of habeas corpus by a person in
    custody pursuant to the judgment of a State court." It goes on to
    state that the period of limitation starts to run from the latest of
    four potential occurrences which are substantially similar to the ones
    -12-
    outlined in § 2255. 
    28 U.S.C. § 2244
    (d)(1). Indeed, § 2244(d)(1)(D)
    is strikingly similar to the provision that concerns us, § 2255(4).
    The limitation under § 2244(d)(1)(D) states that the limitation period
    shall run from the latest of "the date on which the factual predicate
    of the claim or claims presented could have been discovered through the
    exercise of due diligence."     
    28 U.S.C. § 2244
    (d)(1).2     The only
    difference between the two provisions is that § 2255(4) uses the phrase
    "facts supporting the claim" while § 2244(d)(1)(D) uses the phrase "the
    factual predicate of the claim."
    The jurisprudence on the limits imposed on § 2254 by § 2244
    is more developed and sheds some light on our problem. The Supreme
    Court addressed the issue of statutory tolling of § 2244(d)'s one year
    limitation period in Artuz v. Bennett, 
    531 U.S. 4
     (2000), and held
    that, under § 2244(d)(2), an application to a state court for post-
    conviction relief tolls the limitations period in § 2244(d)(1), even if
    the application contains procedurally barred claims. Recently, in
    Duncan v. Walker, 
    121 S. Ct. 2120
     (2001), the Court once more addressed
    the issue of tolling of the one year limitation period in § 2244(d).
    Duncan held that, while the time during which a properly filed
    application for state post-conviction or other collateral review is
    2    In addition, § 2244(d)(2) includes a tolling provision:
    "[t]he time during which a properly filed application for State post-
    conviction or other collateral review . . . is pending shall not be
    counted toward any period of limitation under this subsection." 
    28 U.S.C. § 2244
    (d)(2).
    -13-
    pending is not counted toward the limitation period for filing a § 2254
    petition from AEDPA’s effective date, the tolling provision does not
    apply to the time taken by a prior application for federal habeas
    corpus. Duncan, 
    121 S. Ct. at 2129
    . The Court noted that the one year
    limitation period in § 2244(d)(1) expressed Congress’s interest in
    finality of state court judgments because it "reduces the potential for
    delay on the road to finality." Id. at 2128. The Court also observed
    that while the tolling provision in § 2244(d)(2) potentially lengthens
    the road to finality, it "limits the harm to the interest in finality
    by according tolling effect only to 'properly filed application[s] for
    State post-conviction or other collateral review.'" Id. (alteration in
    original).
    Justices Souter and Stevens concurred in the result in Duncan
    and noted that they thought there was nothing to bar a district court
    from retaining jurisdiction of a § 2254 petition from a state prisoner
    while state remedies were exhausted.       Id. at 2129 (Souter, J.,
    concurring); id. at 2129-30 (Stevens, J., concurring). This is their
    view, although in a pre-AEDPA decision, Rose v. Lundy, 
    455 U.S. 509
    (1982), the Supreme Court directed district courts to dismiss, not
    stay, petitions under § 2254 while the state remedies were being
    exhausted.
    Justices Souter and Stevens also discussed the possibility
    of equitable tolling in their concurrences. Justice Stevens stated
    -14-
    that because "federal habeas corpus has evolved as the product of both
    judicial doctrine and statutory law," AEDPA does not "preclude[] a
    federal court from deeming the limitations period tolled . . . as a
    matter of equity." Id. at 2130. The possibility of equitably tolling
    the statute of limitations contained in § 2244(d)(1) has been discussed
    in many cases. Indeed, this court in Neverson v. Bissonnette, 
    261 F.3d 120
    , 127 (1st Cir. 2001), remanded a § 2254 petition for consideration
    of the possibility of equitable tolling, without expressing a view as
    to whether the doctrine was available. In Delaney v. Matesanz, 
    264 F.3d 7
    , 14-15 (1st Cir. 2001), we considered that even if equitable
    tolling were available on that § 2254 petition, the defendant there did
    not qualify.   See also Fahy v. Horn, 
    240 F.3d 239
    , 244 (3d Cir.)
    (equitable tolling of § 2244(d)'s limitation is only available in
    extraordinary circumstances), cert. denied, No. 01-17, 
    2001 WL 82597
    (U.S. Oct. 1, 2001); Felder v. Johnson, 
    204 F.3d 168
    , 171-73 (5th Cir.)
    (ignorance of the law does not warrant equitable tolling), cert.
    denied, 
    531 U.S. 1035
     (2000); Smith v. McGinnis, 
    208 F.3d 13
    , 17 (2d
    Cir.) (per curiam) (equitable tolling applies to the one year statute
    of limitations in § 2244(d) "only in . . . rare and exceptional
    circumstance[s]" (internal quotation marks omitted)), cert. denied, 
    531 U.S. 840
     (2000).
    It is clear that the jurisprudence under § 2254, through §
    2244, suggests a strong concern for finality, possibly leavened in
    -15-
    instances of clear injustice by narrow safety valves of either
    equitable tolling or a stay of a premature federal petition. Similar
    concerns must animate the limitations period under § 2255.
    To return to § 2255, the net result of Custis and Daniels
    was to leave federal prisoners in a practical bind. They could not
    bring a § 2255 petition to federal court until they had gotten the
    state convictions vacated and they had only one year in which to
    accomplish that from the date of federal conviction -- a daunting task.
    That was so unless there was an alternate reading of the timelines.
    The "when" question then becomes whether the language of §
    2255(4) means that such a claim for federal resentencing does not
    accrue, Wims v. United States, 
    225 F.3d 186
    , 190 (2d Cir. 2000);
    McGinnis, 
    208 F.3d at 15
    , until the state convictions are vacated,
    regardless of when the prisoner knew or should have known of the facts
    supporting the vacating of the state conviction.
    We hold that 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. Section 2255(4)
    provides that the period begins to run from the date "on which the
    facts supporting the claim or claims presented could have been
    discovered through the exercise of due diligence."        
    18 U.S.C. § 2255
    (4). Brackett's reading of that clause -- that the key date is the
    -16-
    date on which the state court vacates his conviction -- is supported by
    some district court decisions.3 The district court here rejected that
    reading, finding that such an outcome is "contrary to the intent of
    Congress to impose stringent limitations to habeas relief and provide
    finality to federal sentences." Gonzalez, 
    135 F. Supp. 2d at 125
    . We
    too reject Brackett’s reading for three reasons: it is not the most
    natural reading of the statute, it is inconsistent with the readings
    given to parallel uses of similar language by Congress, and such a
    reading would contravene legislative intent.
    The most natural reading of subsection (4), both alone and
    in the context of the entire § 2255, is inconsistent with Brackett’s
    argument. It would make little sense for Congress to have used the
    phrase "facts supporting the claim [that] could have been discovered
    through the exercise of due diligence" if "facts" included a state
    court set aside of a prior conviction. Such court actions are obtained
    at the behest of the petitioners and not "discovered" by them. It
    3    In United States v. Cavallaro, No. CRIM. 95-52-P-H,
    
    2000 WL 230225
     (D. Me. Feb. 9, 2000), the court interpreted the
    term "facts" in subsection (4) as the fact of the state court
    decision vacating the prior convictions and held that such facts
    were not "discoverable" until the date of that decision.
    Similarly, in United States v. Hoskie, 
    144 F. Supp. 2d 108
    , 111
    (D. Conn. 2001), the court held that the one year statute of
    limitations under 2255(4) "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."
    -17-
    would be an odd usage to say that court actions "could have been
    discovered." The language rather suggests that this provision is
    concerned with facts that were not known and could not have been
    discovered through the exercise of due diligence as of the date of the
    federal sentence. Although it is true that Brackett did not know how
    the state court would act on his motion and did not know when it would
    act on his motion, we do not think that these are the type of facts to
    which Congress referred. The construction Brackett gives, although
    arguable, is not the most plausible reading on a purely linguistic
    basis.
    Further, the construction of the remaining clauses of § 2255
    undercuts Brackett's argument.      In the law, "facts" are usually
    distinguished from court decisions.      That distinction is itself
    contained within § 2255. Indeed, § 2255(3) refers to the date a right
    asserted was initially recognized by the Supreme Court, and § 2255(1)
    refers to the date a judgment becomes final.      The use of the term
    "facts" in subsection (4) is in contrast to both the language about the
    recognition of rights asserted recognized by a court in subsection (3)
    and a court's judgments in subsection (1).
    We think that the reference in subsection (4) was to basic,
    primary, or historical facts, as that is the sense in which Congress
    has used similar language elsewhere. There are a great many other
    -18-
    instances where courts4 and statutes refer to dates on which facts
    supporting claims presented could have been discovered through the
    exercise of due diligence.
    Perhaps the most important examples are in the parallel
    habeas provisions. We start with 
    28 U.S.C. § 2244
    (d)(1), with its
    parallel language to § 2255. 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."    This
    provision's    reference      to   "factual    predicates"    has   been
    interpreted to mean evidentiary facts or events and not court
    rulings or legal consequences of the facts.          Owens v. Boyd, 
    235 F.3d 356
    , 359 (7th Cir. 2000) (stating that "the trigger in
    2244(d)(1)(D) is (actual or imputed) discovery of the claim's
    4     For example, in tort law under the discovery rule, the
    running of the statute of limitations does not begin until the fact of
    the injury becomes known, or should have become known in the exercise
    of due diligence. See, e.g., Collins v. Nuzzo, 
    244 F.3d 246
    , 253 (1st
    Cir. 2001) (stating that in Massachusetts defamation cases "the statute
    only starts to run when the harm becomes known, or in the exercise of
    reasonable diligence should have become known, to the injured party"
    (internal quotation marks omitted)); Saenger Org., Inc. v. Nationwide
    Ins. Licensing Assocs., Inc., 
    119 F.3d 55
    , 65 (1st Cir. 1997) ("Under
    the Massachusetts discovery rule, the running of the statute of
    limitations is delayed while 'the facts,' as distinguished from the
    'legal theory for the cause of action,' remain 'inherently unknowable'
    to the injured party." (quoting Catrone v. Thoroughbred Racing Ass'ns
    of N. Am., Inc., 
    929 F.2d 881
    , 885 (1st Cir. 1991)) (emphasis and
    internal quotation marks omitted)).
    -19-
    'factual   predicate',   not   recognition   of   the   facts'   legal
    significance"); Ybanez v. Johnson, 
    204 F.3d 645
    , 646 (5th Cir.)
    (per curiam) (rejecting the argument that a state court decision
    can be the factual predicate under § 2244(d)(1)(D)), cert.
    denied, 
    531 U.S. 881
     (2000).     Similarly, 
    28 U.S.C. § 2254
    (d)(2)
    refers to state court decisions which refer to an "unreasonable
    determination of the facts."       We recently held that for this
    purpose "facts" are defined as "basic, primary, or historical
    facts."    Sanna v. DiPaolo, No. 01-1008, 
    2001 WL 1013148
    , at *3
    (1st Cir. 2001).      Because § 2254 (habeas corpus from state
    convictions) and § 2255 (post-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).
    Using this model, Brackett was aware of the "facts"
    supporting his claim that his state court conviction was invalid --
    that he was intoxicated during the plea colloquy and that the colloquy
    was incomplete -- long before the date of his federal sentencing.
    Our final reason is that Brackett's reading of § 2255 would
    create a loophole which is contrary to the legislative intent of
    insuring a greater degree of finality.       Duncan and other cases
    -20-
    establish that one of the signal purposes animating AEDPA is the desire
    of Congress to achieve finality in criminal cases, both federal and
    state. Duncan, 
    121 S. Ct. at 2127-28
    ; Williams v. Taylor, 
    529 U.S. 420
    , 436 (2000); Calderon v. Thompson, 
    523 U.S. 538
    , 554-58 (1998); see
    also Trenkler, 
    2001 WL 1215366
     at *4 (noting importance of not creating
    an "end-run" around AEDPA's statute of limitations because of concern
    for delay); United States v. Barrett, 
    178 F.3d 34
    , 38 (1st Cir. 1999)
    ("gatekeeping mechanisms . . . augment society’s interests in finality
    of criminal convictions"). To read the statute as Brackett does would
    be to create strong counter-incentives working against finality in both
    the state and federal criminal justice systems. On Brackett's reading,
    federal prisoners would be given incentives to delay or repeat their
    challenges to their state court convictions, and particularly to wait
    until the state had destroyed the trial or plea records, thus making it
    easier in some instances to obtain an order vacating the conviction.
    Assuming the state court vacates the conviction, the delay would also
    diminish the chances of retrial, as witnesses' memories fade or
    witnesses become unavailable. New trials might never be held, for
    reasons unrelated to the merits of the case. Rather than affording
    respect and finality to state proceedings, such a reading of the
    -21-
    statute would lead to new burdens on the states through increased
    filings of motions to vacate, and would upset finality.5
    We acknowledge that there may be situations in which our
    reading of this one year period of limitation in § 2255(4) would
    arguably work an injustice. As the Supreme Court noted in Lackawanna
    County, 
    121 S. Ct. at 1575
    , there may be cases of federal prisoners
    who, at the time of federal sentencing, were actually innocent of the
    state crime for which they had been convicted. It may be that such
    prisoners do not become aware of facts and could not reasonably in the
    exercise of due diligence have become aware of facts to prove their
    innocence until later. And it may be that once they discover such
    facts they move promptly in state court to vacate the conviction but
    they are unable to obtain a state decision vacating the conviction
    5    In the pre-AEDPA era, this Court in Pettiford held that
    a prisoner may use § 2255 to challenge a federal sentence that
    had been enhanced by Massachusetts state convictions that were
    vacated after federal sentencing. This conclusion was reached
    although the vacating of the state court decisions there appear
    to have been based on the absence of records that had been
    destroyed, and on what was thought to be the Commonwealth’s
    burden to prove that the procedures were regular. Pettiford,
    
    101 F.3d at 202
    . Pettiford did not, of course, construe the
    limitation period language in AEDPA, but it did anticipate that
    AEDPA’s limitations period would resolve the problem posed. 
    101 F.3d at
    202 n.2. The Court noted that the one year limitation
    period   would    eliminate   the   possibility    of   prisoners
    "sandbagging" the government by having their state convictions
    vacated long after federal sentencing has taken place.
    -22-
    until more than one year after they learn of the facts, and so cannot
    bring a petition within the time limit in       § 2255(4).6
    In situations of potential injustice, there may be
    mechanisms, both before and after the federal sentencing, which act as
    safety valves. For example, when there are pending state proceedings
    to vacate state convictions instituted before the federal sentence is
    imposed, it would be within the power of the federal sentencing judge
    to continue the sentencing hearing for a reasonable period to permit
    the conclusion of the state court proceedings. See Fed. R. Crim. P.
    32(a) ("The time limits prescribed [for sentencing] may be either
    shortened or lengthened for good cause."); see also United States v.
    Ottens, 
    74 F.3d 357
    , 359 (1st Cir. 1996) (the district court judge has
    wide discretion in granting a sentencing continuance).
    Alternatively, petitioners could argue for a rule of
    equitable tolling under § 2255. The First Circuit has yet to adopt
    such a rule, Trenkler, 
    2001 WL 1215366
     at *6, but equitable tolling
    under § 2255 has been adopted by several circuits in cases where
    claimants file late petitions because of extraordinary circumstances.
    See Dunlap v. United States, 
    250 F.3d 1001
    , 1008-09 (6th Cir. 2001)
    In another context we have acknowledged the possible
    unfairness that could result if the gatekeeping requirements
    of § 2255 barred relief when a new legal argument does not
    become available until after a first petition has been filed
    and denied. Sustache-Rivera v. United States, 
    221 F.3d 8
    , 12-
    18 (1st Cir. 2000), cert. denied, 
    121 S. Ct. 1364
     (2001).
    -23-
    (adopting standard to apply in § 2255 equitable tolling cases); United
    States v. Marcello, 
    212 F.3d 1005
    , 1010 (7th Cir.) (holding that "§
    2255's period of limitation is not jurisdictional but is instead a
    procedural statute of limitations subject to equitable tolling."),
    cert. denied, 
    531 U.S. 878
     (2000); Sandvik v. United States, 
    177 F.3d 1269
    , 1271 (11th Cir. 1999) ("[T]here is every indication that § 2255's
    deadline is a garden-variety statute of limitations, and not a
    jurisdictional bar that would escape equitable tolling.").
    However, we do not reach the issue of whether this Circuit
    should adopt the doctrine of equitable tolling because the defendant
    here did not present an argument of equitable tolling and so it is
    waived. Even were equitable tolling not waived, this defendant is no
    candidate for equitable tolling. If he was intoxicated at the time of
    the 1991 and 1993 convictions or received an inadequate colloquy, he
    knew it then. Moreover, in contrast to a more sympathetic candidate
    for equitable tolling who acts with "reasonable diligence throughout
    the period he seeks to toll," Brackett sat on his hands for a great
    many years.    McGinnis, 
    208 F.3d at 17-18
     (outlining the Second
    Circuit's requirements for equitable tolling of the limitations period
    in § 2255); see also Delaney, 
    264 F.3d at 14
     (the diligence of the
    party pursuing judicial remedies may be a factor in deciding whether
    equitable tolling applies).      Further, the only state decisions
    -24-
    reviewing the merits of his attempts to vacate his convictions resulted
    in denials of his claim.
    That Brackett even has an argument here is a situation that
    was brought about by the defendant and the prosecutor agreeing to
    vacate the prior state conviction, years after the records of his
    conviction were destroyed. We do not know why the prosecution agreed
    -- perhaps it was inertia. But nothing about his case suggests that
    the equities are in Brackett’s favor. Cf. Jamison v. United States,
    
    244 F.3d 44
    , 48 (1st Cir. 2001) (under circumstances where defendant
    never disputed that he committed the crime and his case was only
    dismissed because he fled the jurisdiction "counting the [state]
    conviction is not even remotely an injustice").
    Affirmed.
    -25-
    

Document Info

Docket Number: 01-1466

Judges: Lynch, Lipez

Filed Date: 10/31/2001

Precedential Status: Precedential

Modified Date: 11/4/2024

Authorities (32)

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John C. Wims v. United States ( 2000 )

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