03-9685 Johnson v. U.S.

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This Court agrees with Johnson that the state-court order vacating his prior conviction is a matter of “fact” supporting his §2255 claim, discovery of which triggers the refreshed 1-year limitations period under the fourth paragraph. By pegging that period to notice of the state order eliminating the predicate required for enhancement, which is almost always necessary and always sufficient for relief, Johnson’s argument improves on the Government’s proposal that the relevant “facts” are those on which Johnson based his challenge to the validity of his state convictions. Moreover, Johnson’s argument is not vulnerable to the Eleventh Circuit’s point that an order vacating a conviction is legally expressive or operative language that may not be treated as a matter of fact within the statute’s meaning. This Court commonly speaks of the “fact of a prior conviction,” e.g., Apprendi v. New Jersey, 530 U.S. 466, 490, and an order vacating a predicate conviction is spoken of as a fact just as sensibly as the order entering it. In either case, a claim of such a fact is subject to proof or disproof like any other factual issue. Nevertheless, Johnson’s take on the statute does carry anomalies, one minor, one more serious. It is strange to say that an order vacating a conviction has been “discovered,” the term used by paragraph four, and stranger still to speak about the date on which it could have been discovered with due diligence, when the fact happens to be the outcome of a proceeding in which the §2255 petitioner was the moving party. The more serious problem is Johnson’s position that his §2255 petition is timely under paragraph four as long as he brings it within a year of learning he succeeded in attacking the prior conviction, no matter how long he may have slumbered before starting the successful proceeding. Neither anomaly is serious enough, however, to justify rejecting Johnson’s basic argument. The Court’s job here is to find a sensible way to apply paragraph four when AEDPA’s drafters probably never thought about the present situation. The answer to the question of how to implement the statutory mandate that a petitioner act with “due diligence” in discovering the crucial fact of a vacatur order that he himself seeks is that he take prompt action as soon as he is in a position to realize that he has an interest in challenging the prior conviction with its potential to enhance the later sentence. The particular time when the course of the later federal prosecution clearly shows that diligence is in order is the date of judgment. After the entry of judgment, the §2255 claim’s subject has come into being, the significance of inaction is clear, and very little litigation would be wasted, since most challenged federal convictions are in fact sustained. Thus, from the date the District Court entered judgment in his federal case, Johnson was obliged to act diligently to obtain the state-court order vacating his predicate conviction. Had he done so, the 1-year limitation period would have run from the date he received notice of that vacatur.

340 F.3d 1219, affirmed.

Local effect:

The Seventh Circuit has not previously considered the issue

Souter, J.; Kennedy, J., dissenting.