Rossetti v. United States

United States Court of Appeals
For the First Circuit
No. 12-1451
STEPHEN ROSSETTI,
Petitioner, Appellant,
v.
UNITED STATES OF AMERICA,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Richard G. Stearns, U.S. District Judge]
Before
Torruella, Dyk,* and Kayatta,
Circuit Judges.
Derege B. Demissie, with whom Demissie & Church, was on brief,
for appellant.
Aditya Bamzai, Attorney, United States Department of Justice,
with whom Carmen M. Ortiz, United States Attorney, and Joseph F.
Palmer, Attorney, were on brief, for appellee.
December 9, 2014
*
Of the Federal Circuit, sitting by designation
KAYATTA, Circuit Judge. Stephen Rossetti was convicted
on federal criminal charges arising from a plot to rob an armored
car depot in Eaton, Massachusetts. Having exhausted his direct
appeals, Rossetti now seeks collateral review on a petition for a
writ of habeas corpus, arguing that he was denied his Sixth
Amendment right to counsel and that the district court wrongly
refused to modify his sentence after a state court vacated a prior
state conviction that had been relied upon to increase his federal
sentence. We affirm the district court's denial of Rossetti's
petition.
I. Background
In late 1998, Carmello Merlino and Anthony Romano formed
a plan to rob an armored car depot in Eaton, Massachusetts.1
Shortly thereafter, Merlino recruited two other men, David Turner
and his friend Rossetti. As it turned out, Romano was an FBI
informant who tape-recorded the meetings of the conspirators that
he attended. The conversations recorded on those tapes paint
Rossetti as an enthusiastic participant in the robbery venture. In
eighteen conversations recorded by Romano, Rossetti provided
detailed advice about how to conduct the robbery. He explained how
to secure masks without pulling out hair that could be used to
identify the conspirators, explained how to tie the depot's guards
1
Unless otherwise noted, the background facts set forth here
are not disputed for purposes of this appeal.
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to a pole so that they would choke if they tried to move, advised
that the guards would resist violently, and suggested a way for the
conspirators to remove video surveillance tapes without making
clear that the robbery was an inside job. Rossetti also promised
to provide guns, police scanners, walkie-talkies, body armor, and
a grenade, boasting that he had "all the hardware" needed for the
robbery. Rossetti said that, during the robbery, he would be
"ready at the door watching for anyone to come . . . [c]ause if
they come in I'm taking them down." Finally, he asked to drive one
of the getaway cars, saying that he would "like to drive one of
them [vehicles] in case I gotta . . . smash guys out of the way or
whatever."
On February 6, 1999, the conspirators met at a garage to
finalize details for the robbery, which was planned for the next
day. Romano showed the others a stolen minivan to be used in the
robbery, and Rossetti confirmed that he would bring weapons and
other equipment for the heist. The conspirators planned to meet
again at the garage the next morning. The FBI, in turn, planned to
arrest them when they arrived.
At the appointed hour the next morning, Rossetti drove
with Turner in Rossetti's car toward the garage. FBI agents
testified that Rossetti circled the meeting point in a "counter-
surveillance manner." Instead of stopping at the garage, Rossetti
eventually drove to a parking lot where Turner's car was parked.
-3-
There, they transferred masks, gloves, weapons, bulletproof vests,
and walkie-talkies to Turner's car. Rossetti and Turner then drove
back to the garage, again appearing to check out the area. At that
point, they drove off and, after a brief chase, were stopped and
arrested. The FBI agents retrieved four duffle bags and four ski
masks from the garage, and the other equipment from Turner's car.
Rossetti was eventually convicted on conspiracy and
attempt to affect commerce by robbery in violation of 18 U.S.C.
§ 1951, carrying a grenade and firearms in relation to a crime of
violence in violation of 18 U.S.C. § 924(c), and being a felon in
possession of a grenade and firearms in violation of 18 U.S.C.
§ 922(g)(1). In convicting Rossetti, the jury rejected his
defenses that Romano entrapped Merlino and thereby "vicariously
entrapped" Rossetti, and that Rossetti withdrew from the robbery
plan before he was arrested.
After his conviction, Rossetti was sentenced in
December 2002 to 622 months in prison. In August 2006, we vacated
that sentence in light of United States v. Booker, 543 U.S. 220
(2005). On remand, the district court, in August 2007, resentenced
Rossetti to 622 months. We affirmed that sentence in October 2008.
Rossetti's petition for certiorari was denied in January 2009.
Rossetti v. United States, 555 U.S. 1158 (2009). Meanwhile, in
August 2008, Rossetti filed a motion in Massachusetts state court
for a new trial on a prior state conviction. In January 2010,
-4-
Rossetti filed a petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2255, arguing that he received ineffective assistance
of counsel in his federal trial, and should therefore be retried.
After the state court vacated his prior conviction in February
2011, he amended his section 2255 petition to add an argument that
the vacatur of his prior state court conviction entitled him to re-
sentencing on counts five and six of his conviction. The district
judge thereafter denied his petition but granted him a certificate
of appealability on the sentencing issue. On appeal, we allowed
his motion to expand the certificate of appealability to encompass
both issues.
II. Analysis
A. Sixth Amendment Claims
Rossetti challenges his counsel's conduct at his trial on
three main grounds, arguing that counsel: (1) wrongly deterred him
from testifying by incorrectly advising him that, if he testified
in his own defense, his testimony would undercut counsel's ability
to suggest to the jury that Rossetti did not go all the way to the
garage as planned because he was withdrawing from the conspiracy;
(2) failed to impeach one of his own witnesses and to procure
expert testimony concerning a cell phone call relevant to a
government theory for why he may not have stopped at the garage the
morning of the arrest; and (3) had a conflict of interest that
denied Rossetti his Sixth Amendment rights. The district court
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rejected these arguments, each of which Rossetti properly
preserved,2 and so "we review the district court's legal
determinations de novo and the court's findings of fact for clear
error." Parsley v. United States, 604 F.3d 667, 671 (1st Cir.
2010).
1. Counsel's advice not to testify
Rossetti's claim that he suffered prejudice as a result
of erroneous advice by counsel centers on his defense that he
withdrew from the conspiracy at the last moment before the aborted
robbery. Rossetti claims that his counsel told him that his
testimony would undercut counsel's ability to argue withdrawal, and
for that reason Rossetti opted not to testify. He argues now that
that advice was wrong, and that because he refrained from
testifying, he lost a chance to support his withdrawal defense, and
otherwise to enhance his case.
To prove such a claim based on the failings of defense
counsel, Rossetti must demonstrate both: "(1) that 'counsel's
performance was deficient,' meaning that 'counsel made errors so
serious that counsel was not functioning as the "counsel"
guaranteed the defendant by the Sixth Amendment'; and (2) 'that the
2
Rossetti did not raise these arguments in his direct appeal,
but "[a] defendant can assert ineffective-assistance claims for the
first time in a collateral motion made under 28 U.S.C. § 2255 and,
in fact, that is the preferred procedure." United States v. Huard,
342 F. App'x 640, 642 (unpublished) (1st Cir. 2009) (citing
Massaro v. United States, 538 U.S. 500, 504-05, 509 (2003)).
-6-
deficient performance prejudiced the defense.'" United States v.
Valerio, 676 F.3d 237, 246 (1st Cir. 2012) (quoting Strickland v.
Washington, 466 U.S. 668, 687 (1984)). In assessing the adequacy
of appointed counsel, we "indulge a strong presumption that
counsel's conduct falls within the wide range of reasonable
professional assistance," see Strickland, 466 U.S. at 689, finding
deficiency only "where, given the facts known [to counsel] at the
time, counsel's choice was so patently unreasonable that no
competent attorney would have made it." Knight v. Spencer, 447
F.3d 6, 15 (1st Cir. 2006) (internal quotation marks omitted).
And, to establish prejudice, a defendant must demonstrate "a
reasonable probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been different."
Strickland, 466 U.S. at 694. This review presents "mixed questions
of law and fact" in which factual questions predominate and we
therefore review largely for clear error. See Turner v. United
States, 699 F.3d 578, 584 (1st Cir. 2012).3 We begin our review by
summarizing the testimony that Rossetti says he would have given.
First, Rossetti says that he only participated in the
conspiracy out of fear that Merlino would kill him if he did not
participate, and that his detailed advice to the other participants
in the conspiracy about how to conduct the robbery was really an
3
The district judge who heard Rossetti's petition also
presided over his trial and so was in a good position to assess
Rossetti's claims.
-7-
unsuccessful ploy to dissuade them from conducting it by
demonstrating its difficulties.
Second, Rossetti states that after the meeting of the
conspirators on the eve of the planned robbery he learned that two
of them were heroin addicts, and that he then decided to withdraw
from the conspiracy because of his "strong aversion to heroin
addicts" who "can't be trusted." He claims that he communicated
this decision to Turner, who passed along the news to Merlino, who,
despite Rossetti's professed fears, eventually took the news well,
and, instead of killing Rossetti, agreed to Rossetti's request for
a face-to-face meeting the next day.
Third, Rossetti claims he visited his mother's house to
deal with an electrical problem after telling Turner of his
withdrawal. While he was there he says he told her that he had
backed out of a business deal.
Finally, he says that the next morning when the FBI
observed him circling the area of the garage, he claims he was
actually searching for the minivan of which he had agreed to help
Merlino dispose. Having failed to find the minivan, he then
proceeded toward a restaurant where he had agreed to meet Merlino,
coincidentally again passing the garage on his way there.
Being familiar with the entire record, the district court
concluded that this withdrawal claim was "chimerical." Rossetti v.
United States, CIV.A. 10-10151-RGS, 2012 WL 37177, at *4 (D. Mass.
-8-
Jan. 9, 2012). We agree. The notion that this enthusiastic and
seasoned conspirator who claims to have been fearful of his
colleagues withdrew the night before the robbery and then
nevertheless showed up at the appointed site and time carrying (as
promised) weapons, masks, gloves and other tools for the heist
makes no sense at all. Rossetti's argument that he was simply on
his way (at that precise time) to dispose of the minivan is itself
a hard sell. More importantly, as Rossetti's trial counsel
recognized, to dispose of the stolen minivan was to help the
conspirators, not to abandon them to their own devices. Indeed,
Rossetti's affidavit acknowledges that because the minivan's
ignition switch was missing and "the steering wheel column housing
was broken with many pieces missing" the minivan might have
hindered successful execution of the robbery because "if it was
seen by an outsider there was a high risk that they would think the
minivan was stolen."
Because Rossetti does not dispute on appeal that he
joined the conspiracy, "the law presumes that the conspiracy
continued, and that he continued to participate, unless he makes
'an affirmative showing' that . . . he withdrew from it." United
States v. Mangual-Santiago, 562 F.3d 411, 422 (1st Cir. 2009)
(quoting United States v. Piper, 298 F.3d 47, 53 (1st Cir. 2002)).
To succeed at a withdrawal defense Rossetti would have had to
demonstrate that he "act[ed] affirmatively either to defeat or
-9-
disavow the purposes of the conspiracy" which he could have done
either by making "a full confession to authorities," which he does
not contend he did, or "communicati[ng] . . . to his
co-conspirators that he ha[d] abandoned the enterprise and its
goals." United States v. Ciresi, 697 F.3d 19, 27 (1st Cir. 2012)
(internal quotation marks and citations omitted). It seems quite
reasonable to think that testimony that he was helping his fellow
conspirators dispose of a stolen vehicle, the presence of which
might cause suspicion, would have foreclosed any attempt by counsel
to argue that the failure to pull into the garage evidenced
withdrawal from the conspiracy. Nor would evidence from his mother
that he said he was backing out of a business deal have established
the relevant disavowal, even if believed, in view of Rossetti's
actual conduct.4
In short, taking the stand to spin such a fanciful yarn
would not in our view have created a reasonable probability that
the jury would buy it. Indeed (and perhaps this is what defense
counsel had in mind), such testimony could have harmed Rossetti's
standing before the jury. Moreover, by testifying, Rossetti would
have opened himself up to cross-examination about his criminal
history and every detail of his participation in the robbery.
4
It also follows from this that, once Rossetti decided not to
testify, trial counsel was not ineffective for failing to ask
Rossetti's mother about Rossetti's comment when she testified
because her answer, as Rossetti concedes, would have been
inadmissible hearsay.
-10-
Rossetti alternatively argues that his testimony would
have supported his entrapment defense. Once a defendant
demonstrates that he is entitled to an entrapment instruction, the
government may defeat that defense by "prov[ing] beyond a
reasonable doubt either that there was no undue government pressure
or trickery or that the defendant was predisposed." United States
v. LaFreniere, 236 F.3d 41, 44-45 (1st Cir. 2001). Rossetti argues
that his testimony would have been relevant on each prong. He
would have testified that Merlino, with the government's knowledge,
coerced him to join the conspiracy once he knew of it. And he says
he would have demonstrated he was not predisposed to commit the
robbery by testifying that he had not committed any crimes since
the 1980s and was "living a law-abiding, addiction free, and family
oriented life."5
Both arguments fail to fit the evidence in a way that
would have made a different result reasonably probable. The
recordings of Merlino consistently belied any such approach, much
5
Factors which may be considered when determining whether
someone was predisposed to commit a crime include:
(1) the character or reputation of the defendant; (2)
whether the initial suggestion of criminal activity was
made by the Government; (3) whether the defendant was
engaged in the criminal activity for profit; (4) whether
the defendant showed reluctance to commit the offense,
which was overcome by the governmental persuasion; and
(5) the nature of the inducement or persuasion offered by
the Government.
United States v. Gamache, 156 F.3d 1, 9-10 (1st Cir. 1998).
-11-
less one known to the government. As we said in connection with
Turner's appeal, "Merlino made it clear that he was making an offer
to participate which Turner could readily decline. There was no
hint of threats or any other undue pressure--simply the opportunity
for a big score." Turner, 501 F.3d at 71. Rossetti's attempt to
sell a story that Merlino–"off tape only"--dealt differently with
him faced the further problem that the numerous tapes that did
exist evidence that the gang had an enthusiastic participant in
Rossetti. His claim that he was acting in an effort to eventually
convince everyone that the robbery was too hard simply does not fit
either the script he was writing or the fact that he was supplying
important resources for accomplishing the robbery. As for the
matter of predisposition, the prior record of a robbery conviction,
even though dated, combined with the tape recordings and the acts
on the morning of the planned robbery made a long shot out of any
effort to convince a jury that he had no predisposition to commit
the crime. The withdrawal story Rossetti now says he wanted to
tell, moreover, directly undercuts his claim that he was so fearful
of Merlino that he felt compelled to commit the crime.
Lastly, Rossetti seems to argue that because counsel's
allegedly erroneous advice caused him to surrender his right to
testify, he might still prevail even if he cannot satisfy
Strickland's requirement that any error have been reasonably likely
to account for the verdict. None of our authority supports this
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claim. See Palmer v. Hendricks, 592 F.3d 386, 397 (3d Cir. 2010)
("[E]very authority we are aware of that has addressed the matter
of counsel's failure to advise a client of the right to testify has
done so under Strickland's two-prong framework."); Owens v. United
States, 483 F.3d 48, 57–59 (1st Cir. 2007) (applying Strickland
where counsel allegedly failed to inform the defendant of his right
to testify); Cannon v. Mullin, 383 F.3d 1152, 1170 (10th Cir. 2004)
("Other courts also treat [right to testify] claims as ineffective
assistance claims. . . . We agree that Mr. Cannon's claim is best
treated as an ineffective-assistance-of-counsel claim and analyze
it as such.") (citing United States v. Teague, 953 F.2d 1525, 1534
(11th Cir. 1992) (en banc)).
Finally, we do concede that the logic of the foregoing
actually helps Rossetti's argument in one sense: the palpable
weakness of the withdrawal and entrapment defenses undercut the
notion that preserving those defenses was a reason not to testify.
While we nevertheless tend to see the wisdom in Rossetti's not
testifying given the cross-exam he would have faced based on his
record and the tapes, we need not defend counsel's advice in order
to reject Rossetti's Strickland argument. Simply put, the proposed
testimony would have fallen far short of breathing enough plausible
life into those defenses to have created a reasonable possibility
that they would have succeeded. Rossetti's argument regarding the
advice not to testify therefore fails.
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2. The cell phone evidence
Rossetti next argues that his counsel wrongly failed to
impeach Rossetti's own witness when she gave erroneous testimony
that was actually favorable to Rossetti's theory about his
motivation on the day of his arrest. When arrested, Rossetti was
carrying a cellphone that the government suggested at trial he
could have used to call his co-conspirators. Such a call could
explain why he did not go to the garage where he had agreed to meet
them but instead surveilled and continued past it. At trial,
Rossetti called a witness who testified that the company that
employed Rossetti, and that paid for the phone, was charged for no
calls on Rossetti's phone that morning, thereby counteracting the
government's theory.
The witness also testified, erroneously according to
Rossetti, that the company would have been billed for a call even
if Rossetti had called someone else but the call had not been
answered. The jury, Rossetti claims, "knew from their collective
common sense that Rossetti was conveying erroneous information
regarding cellular billing practices and, hence, found Rossetti's
defense less credible." If cellular phone billing practices were
such common knowledge, however, it seems unlikely that the
government attorney, Rossetti, his counsel, and the witness would
all have failed to notice the witness's mistake. Moreover, what
Rossetti claims was a mistake actually benefitted Rossetti by
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negating any suggestion that he even tried to call his co-
conspirators. This mistake was unchallenged on cross or in closing
by the prosecutor, and one can only imagine what Rossetti would
have said had his counsel flagged it. In short, Rossetti has not
come close to demonstrating that his counsel was ineffective by
failing to impeach his own witness.
Alternatively, Rossetti argues that his trial counsel
should have retained an expert who might have been able to
ascertain that the phone was never used the morning of the arrest,
and that the FBI may have tampered with it. And Rossetti complains
that the district court should have allowed him to do discovery to
explore this theory. The simple answer is that whether Rossetti
(who often advised his fellows on the need to be careful) learned
by a phone call on the morning of the planned robbery that
something was amiss, or instead suspected there was a problem for
other reasons, was not important to the government's case. And, as
we have explained, Rossetti's actual undisputed conduct rendered
his withdrawal defense too farfetched to serve as the basis for
showing a causal connection between counsel's alleged failures and
prejudice to Rossetti.
3. Counsel's purported conflict of interest
Rossetti's next argument is even more convoluted. He
speculates that the FBI wanted to entrap him in order to gain
leverage over his uncle, said by Rossetti to be a person of
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interest in the investigation of the theft of artworks from the
Gardner Museum. To uncover this motive, Rossetti wanted his trial
counsel to interview and call as a witness a suspected FBI
informant named Richard Chicofsky who, Rossetti suspected, might
supply or point to evidence supporting the hypothesized entrapment
motive. Rossetti's trial counsel, says Rossetti, failed to do this
because, according to Rossetti, counsel had a business relationship
with Chicofsky (a deal to split reward money offered by the Gardner
Museum).
The simple answer to this argument is that, as we
observed in deciding the appeal from Turner's conviction, the FBI's
possible motive to entrap a person is of no moment in a case such
as this one where there is predisposition and no evidence of
improper inducement. United States v. Turner, 501 F.3d 59, 74 (1st
Cir. 2007). Therefore, even if trial counsel had a conflict that
caused him not to pursue the Gardner Museum motive for entrapment
theory, the "failure" to pursue a defense that could not have
succeeded could have caused no prejudice. Adding belt-to-
suspenders, the district court found that "there was no likelihood
that Chicofsky would have testified" because, among other reasons,
when called in proceedings related to Turner's conviction, he
invoked his Fifth Amendment right not to testify. See Rossetti,
2012 WL 37177, at *6.
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In sum, we cannot say that there is a reasonable
probability that the perceived shortcomings of Rossetti's counsel
-- either individually or cumulatively -- affected the result in
this case.6 As already discussed, Rossetti's withdrawal theory is
implausible, and so too is the notion that any of the tactics
Rossetti now says his counsel should have adopted would have
strengthened his defense.
B. Rossetti's Challenge to his Sentence
Rossetti seeks to modify his sentence based on his
successful vacatur of a prior state conviction for breaking and
entering. That state conviction was one of three prior convictions
the district court considered when calculating Rossetti's sentence.
See Rossetti, 2012 WL 37177, at *6. "[A] defendant given a
sentence enhanced for a prior conviction is entitled to a reduction
if the earlier conviction is vacated," so long as he seeks re-
sentencing in a timely manner. Johnson v. United States, 544 U.S.
6
Similarly, the district court did not err in denying
Rossetti an evidentiary hearing on his ineffective assistance
claims. The district court assumed that Rossetti would have
testified as he claimed, and found that it "would have added
nothing by way of support for [his] withdrawal theory," which in
any event was a "chimerical fantasy." Rossetti, 2012 WL 37177, at
*4. As for the conflict of interest allegation, the district court
found that Chicofsky "had nothing to contribute to Rossetti's
defense." Id. at *6. See United States v. Rodriguez, 929 F.2d
747, 749-50 (1st Cir. 1991) (stating that "a [section 2255]
petition can be dismissed without a[n] [evidentiary] hearing if the
petitioner's allegations . . . 'are contradicted by the record,
inherently incredible, or conclusions rather than statements of
fact'") (quoting Dziurgot v. Luther, 897 F.2d 1222, 1225 (1st Cir.
1990)).
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295, 303 (2005); see also Daniels v. United States, 532 U.S. 374,
382 (2001) ("If [a] challenge to [an] underlying conviction is
successful, the defendant may then apply for reopening of his
federal sentence."). At all times relevant to this opinion, the
timeliness of Rossetti's petition was governed by 28 U.S.C. §
2255(f) which now (in materially unchanged structure) reads as
follows:
(f) A 1-year period of limitation shall apply to a motion
under this section. The limitation period shall run 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.
Rossetti's judgment of conviction in his federal case
became final on January 26, 2009, the day on which his petition for
certiorari was denied. In re Smith, 436 F.3d 9, 10 (1st Cir.
2006). Because Rossetti's state court conviction was vacated in
February 2011, he did not seek to amend his habeas petition to add
an argument that his sentence should therefore be modified until
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April 2011, so he cannot rely on § 2255(f)(1). Rossetti does not
seek to rely on subsections (f)(2) or (f)(3), so that leaves him to
rely on subsection (f)(4) by arguing that he could not have
discovered the facts underlying his motion until after April, 2010.
To satisfy subsection (f)(4)'s requirement that he could
not "have discovered the facts through reasonable diligence" until
less than a year before the petition was filed a petitioner must
show that he acted with "due diligence" to set a prior conviction
aside once he was "in a position to realize that he has an interest
in challenging the prior conviction." Johnson, 544 U.S. at 308-09.
In Johnson, the Supreme Court ruled that such a realization
triggering the duty to act with diligence occurs upon the entry of
a judgment in the federal criminal proceeding. Id. The Court
reasoned that when judgment is entered a defendant surely knows
that the prior state court conviction may be used to justify a
sentence longer than the sentence that might be imposed but for the
prior conviction. Id.
Rossetti's original judgment of conviction in federal
court was entered on the docket on November 27, 2002.7 He did not
make a filing in state court seeking to set aside his conviction
until August 2008. Under Johnson, his effort to rely on
§ 2255(f)(4) to justify a belated motion to reopen his sentence
7
In a criminal case, a judgment includes, and therefore comes
after, "the plea, the jury verdict or the court's findings, the
adjudication, and the sentence." Fed. R. Crim. P. 32(k)(1).
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should therefore fail. Rossetti nevertheless raises three
arguments why this should not be so in his case.
First, Rossetti argues that the relevant "judgment" is
not his original sentence, but instead the new judgment entered by
the district court after we vacated his original sentence pursuant
to Booker. This argument, however, is again precluded by Johnson,
which considered and rejected, as delay-inducing, the argument that
due diligence should not be required until a defendant's final
appeal is concluded. Id. at 309. Here, Rossetti is arguing, in
essence, that, whether one need diligently seek vacatur of a
conviction as soon as one's federal judgment is entered remains
unknown until the appeal is eventually decided, retroactively
triggering such a duty only if the decision is to affirm. Such a
rule cannot be squared with Johnson's desire to identify a
"particular time" when the diligence requirement begins. Id. at
308.8
Second, Rossetti argues that, even if the diligence
requirement normally would have begun at the time of his first
judgment, he was not then in "a position to realize that he ha[d]
an interest in challenging the prior conviction," id., because,
prior to Johnson, this circuit's rule was that vacatur of a
conviction was not a "fact" under (f)(4), see Brackett v. United
8
This is not a case in which only the final judgment vested
the prior conviction with materiality.
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States, 270 F.3d 60, 68 (1st Cir. 2001). While we doubt that the
logic of this argument is correct,9 the simple answer is that even
if the diligence requirement did not begin until Johnson was
decided in April 2005, Rossetti still waited three and a half years
(until August 2008) to challenge his conviction, longer than the
delay the Court found to be non-diligent in Johnson.
Moreover, even if Rossetti reasonably believed that
(f)(4) was not open to him at the time of judgment, at that time,
and for eight years thereafter, he still had an "interest in
challenging the prior conviction" because, if he had done so
successfully within one year of his final cert petition being
denied in January 2009, he would have been able to timely file a
motion to vacate his sentence under § 2255(f)(1), regardless of how
§ 2255(f)(4) was interpreted. In this respect, any incorrect
belief that (f)(4) was unavailable gave even more reason to act
promptly once he was sentenced in December 2002. He therefore had
an "interest in challenging the prior conviction" even before
Johnson was decided.
9
The Supreme Court was fully aware of the interpretation that
the First Circuit (and others) had made of section (f)(4) and did
not suggest that the limitation period should start to run later in
those circuits. See Johnson, 544 U.S. at 302 (citing Brackett, 270
F.3d at 60). The Eleventh Circuit, where Johnson brought his case,
had not taken a position on whether vacatur of a conviction could
be a fact under § 2255(f)(4) prior to his case, see Johnson v.
United States, 340 F.3d 1219, 1222-26 (11th Cir. 2003), and yet the
Court did not consider this at all when determining whether Johnson
had exercised due diligence. See Johnson, 544 U.S. at 311.
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Third, reaching again into his quiver of
Strickland arguments, Rossetti argues that he raised the
possibility of seeking to vacate his conviction to his counsel but
that his counsel advised him he was unlikely to succeed. Johnson,
however, itself rejected the argument that a defendant's lack of
diligence in seeking to vacate his state conviction could be
excused by the fact that he was unrepresented, reasoning that the
Court had "never accepted pro se representation alone or procedural
ignorance as an excuse for prolonged inattention when a statute's
clear policy calls for promptness." Johnson, 544 U.S. at 311. We
cannot see how procedural ignorance by counsel would call for a
different balance. Cf. Trapp v. Spencer, 479 F.3d 53, 60 (1st Cir.
2007) (rejecting the argument that attorney error normally
justifies equitable tolling of the limitations period on habeas
petitions where the error is not "egregious" and the sentence is
not death).
For these reasons we conclude that the district court
correctly determined that Rossetti's petition for resentencing was
untimely.
III. Conclusion
For the foregoing reasons, the judgment of the district
court is affirmed.
So ordered.
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