Brackett v. United States

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-