WILSON, Circuit Judge:
Within weeks of being sentenced as a career offender, Sherodney Stewart set out, pro se, to have his predicate state convictions vacated. He succeeded. He then filed a motion under 28 U.S.C. § 2255, which is the subject of this appeal. It was his second such motion, but because it was not "second or successive" as that term is understood in context of the Antiterrorism and Effective Death Penalty Act ("AEDPA"), we reverse the district court's dismissal and remand for resentencing.
Stewart pleaded guilty by agreement to distributing more than 50 grams of cocaine base, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A)(iii), and 18 U.S.C. § 2, on March 12, 2002. In June 2002, the district court sentenced him as a career offender to 360 months of imprisonment, to be followed by five years of supervised release. We dismissed his direct appeal on February 6, 2003, based on an appeal-waiver provision in his plea agreement. Stewart did not seek certiorari review of that dismissal, rendering his judgment final on May 7, 2003. He had one year from that date to seek habeas relief. See 28 U.S.C. § 2255(f)(1).
On May 3, 2004—four days before that year expired—Stewart filed a pro se motion entitled, "Motion for Equitable Tolling of the Time Period for the Filing of a § 2255 [Motion]." In it, he requested six additional months to file a § 2255 motion, and he articulated three challenges he intended to raise, including a Sixth Amendment ineffective-assistance-of-counsel claim, based on his attorney's failure to investigate the state convictions that predicated his career offender enhancement. The district court could have construed this motion for equitable tolling as a § 2255 motion;
Stewart restated those claims in a pro se § 2255 motion that he filed five weeks later, on September 29, 2004. He also filed a separate motion asking the court to consider his § 2255 claims as having been timely raised, based on their inclusion in his motion for equitable tolling. Again, the court disregarded the substance of Stewart's claims and dismissed his § 2255 motion as time-barred.
Meanwhile, Stewart had already begun the process of challenging his predicate state convictions. From August 2002
The following month, on August 15, 2008, Stewart filed a second pro se § 2255 motion, requesting vacatur of his career offender enhancement pursuant to Johnson v. United States, 544 U.S. 295, 125 S.Ct. 1571, 161 L.Ed.2d 542 (2005). On October 15, 2009, the district court dismissed the motion, concluding that it was successive because his first § 2255 motion was "decided adversely to him." The district court also noted that even if the motion were not successive, it would still have been dismissed because Stewart did not act with due diligence in obtaining the vacatur of his state convictions.
We granted Stewart a Certificate of Appealability ("CoA") on this issue: "Whether the district court erred in finding that Stewart's motion was second or successive in light of Stewart's argument that the grounds he has asserted for challenging his sentence did not exist at the time he filed his previous motion to vacate."
The question before us is whether Stewart's numerically second § 2255 motion was "second or successive" under AEDPA, and we consider that question de novo. See McIver v. United States, 307 F.3d 1327, 1329 (11th Cir.2002).
In Johnson, the Supreme Court held that the state court vacatur of a predicate conviction is a new "fact" that triggers a fresh one-year statute of limitations under § 2255(f)(4),
The Court's rationale was based, in part, on its previous holdings in Custis v. United States
Johnson established that the basis for a claim challenging a sentence predicated on faulty state convictions arises when the order vacating those predicate convictions issues. Id., 125 S.Ct. at 1579-80. The vacatur order gives a defendant both the basis to challenge an enhanced federal sentence and a new one-year period in which to pursue that challenge.
AEDPA dramatically limits successive attempts at habeas relief. If a § 2255 motion is deemed "successive," a court may consider it only if it complies with that section's gatekeeping provision, which provides:
28 U.S.C. § 2255(h). AEDPA's restrictions on second or successive motions are meant to forestall abuse of the writ of habeas corpus, see Felker v. Turpin, 518 U.S. 651, 664, 116 S.Ct. 2333, 2340, 135 L.Ed.2d 827 (1996), by, for instance, barring successive motions raising habeas claims that could have been raised in earlier motions where there was no legitimate excuse for failure to do so, see McCleskey v. Zant, 499 U.S. 467, 493-95, 111 S.Ct. 1454, 1469-71, 113 L.Ed.2d 517 (1991). But the Supreme Court has unequivocally explained that the phrase "second or successive" is not self-defining and does not refer to all habeas applications filed second or successively in time. Panetti v. Quarterman, 551 U.S. 930, 943-44, 127 S.Ct. 2842, 2853, 168 L.Ed.2d 662 (2007).
Particularly when a petitioner raises a claim that could not have been raised in a prior habeas petition, courts have forgone a literal reading of "second or successive." See, e.g., Singleton v. Norris, 319 F.3d 1018, 1023 (8th Cir.2003) (en banc) (finding that Singleton's petition was not successive when it raised a claim that did not arise until he was subject to an involuntary medication order pursuant to Washington v. Harper
But adopting that approach too broadly would threaten Congress's clear intention to limit "second or successive" attempts at post-conviction relief. Therefore, we must confront the difficult task of distinguishing between those previously unavailable claims that Congress contemplated in AEDPA's gatekeeping provisions and those that cannot reasonably be deemed "successive."
The Fifth Circuit addressed this difficulty in Leal Garcia v. Quarterman, 573 F.3d 214, 222 (5th Cir.2009). It concluded that a subsequent § 2254 petition that was based on a defect that did not arise until after the proceedings on the previous petition were completed was not successive. Id. at 224. The facts in Leal Garcia are complicated and presented fully in the Fifth Circuit's opinion, but the following facts are most relevant for our purposes.
After Leal Garcia, a Mexican national, filed his first petition for habeas relief, the International Court of Justice ("ICJ") issued
On appeal, the Fifth Circuit set out to determine if Leal Garcia's petition was successive under AEDPA, and, therefore, subject to the statute's gatekeeping provisions. Id. at 219. Leal Garcia relied on In re Cain,
But the court determined that Leal Garcia's claim fell within a small subset of unavailable claims that could not reasonably be categorized as "successive." Id. at 222, 224. After noting that AEDPA's gatekeeping provisions are meant to minimize repeated attacks on an underlying judgment, the court stated:
Id. at 222 (emphasis added). The court noted that the President's declaration, meant to make Avena enforceable on the states, was not issued until after Leal Garcia's first petition was denied. Id. at 223-24. Therefore, "the basis for his claim—Texas's refusal to conduct the review of his conviction—did not occur until well after proceedings on his first petition had concluded."
The Fifth Circuit's approach in Leal Garcia is consonant with the Supreme Court's reasoning in Panetti v. Quarterman, 551 U.S. at 943-45, 127 S.Ct. at 2853. There, the Court concluded that because the petitioner's Ford
Mindful of the "implications for habeas practice," the purposes of AEDPA, and its prior habeas decisions—including those applying the abuse-of-the writ doctrine—the Court determined "that Congress did not intend the provisions of AEDPA addressing `second or successive' petitions to govern a filing in the unusual posture presented here: a § 2254 application raising a Ford-based incompetency claim filed as soon as that claim is ripe." Id. at 945, 127
We turn now to the related questions of whether Stewart's numerically second § 2255 motion is "second or successive,"
The Government first argues that Stewart's second § 2255 motion is successive because the facts supporting the claim existed when he filed his first § 2255 motion—essentially seeking to relitigate the Supreme Court's decision in Johnson.
Stewart's situation falls within what the Fifth Circuit recognized is a small subset of unavailable claims that must not be categorized as successive. Leal Garcia, 573 F.3d at 222. In Leal Garcia, issues pertaining to consular access existed prior to the defendant's conviction and sentence, but the basis for his second habeas petition arose only after the Texas courts rejected President Bush's declaration and the ICJ's mandate in Avena. Id. at 218, 223-24. Applying the same reasoning, the facts indicating there might be flaws in Stewart's Georgia convictions existed in 2004, but the basis for his Johnson claim—the order vacating those predicate convictions—did not exist until July 2, 2008. See Johnson, 544 U.S. at 305-07, 125 S.Ct. at 1578-80.
"[C]laims based on a factual predicate not previously discoverable are successive," but "[i]f . . . the purported defect did not arise, or the claim did not ripen, until after the conclusion of the previous petition, the later petition based on that defect may be non-successive." Leal Garcia, 573 F.3d at 221, 222. We are not faced with a claim based on facts that were merely undiscoverable. Rather, Stewart has presented a claim, the basis for which did not exist before the vacatur of his predicate state convictions—after his first § 2255 motion had already been filed and dismissed.
Assuming he has acted with due diligence, "a defendant given a sentence
But how must Stewart pursue the relief he is due? Together, Custis, Daniels, and Johnson establish that the time for challenging a federal sentence based on a faulty state conviction is only after that conviction has been vacated. Therefore, the time for Stewart to pursue his Johnson claim is now. The Government urges us to conclude that, even so, Stewart should have waited until now to file his first § 2255 motion.
Therefore, we are left with two options. Either (1) we could instruct future defendants to include potential Johnson claims in their initial § 2255 motions and ask the district courts to "stay and abey" while the defendants challenge their predicate convictions in state courts; or (2) we could conclude that Stewart properly raised his 2008 motion when it first became ripe. The Government argues that we should take the former option. Panetti's reasoning illustrates that the latter option is superior.
As in Panetti, a literal application of AEDPA's "second or successive" language in this situation would frustrate the purposes of AEDPA by leading movants to inundate district courts with meritless and unripe petitions alleging their federal sentences were improperly enhanced by flawed prior state convictions, so that those movants could preserve the right to
Our decision is informed, not only by the Supreme Court's holding in Panetti, but also by the interests of judicial economy. For every Johnson claim that will eventually become viable, there are many more that will not. We are disinclined to instruct district courts to hold all such motions in abeyance for years, while defendants challenge state convictions, particularly when the other path is logical and consistent with Supreme Court precedent.
Because the basis for his Johnson claim did not exist before his proceedings on his initial § 2255 motion concluded, Stewart's numerically second motion is not "second or successive," and § 2255(h)'s gatekeeping provision does not apply. And because attempting to raise his Johnson claim in his initial § 2255 motion would have been an empty formality, Stewart was permitted to raise it in a second, diligently pursued § 2255 motion. Accordingly, we reverse and remand for resentencing consistent with this opinion.
REVERSED and REMANDED.
The Government conceded as much in its response to Stewart's motion: "[Stewart's] allegations would normally be sufficient to raise a claim under Section 2255," and "the district court does have the discretion to consider [Stewart's] motion to equitably toll as a motion under Section 2255."
Gov't Br. at 27-28. We agree that Stewart exercised due diligence, and we reverse without addressing the alternate ground for the district court's decision in depth.
The posture in Panetti was "unusual," but it was not unique. In Tompkins, we refused to apply Panetti to claims that "can be and routinely are raised in initial habeas petitions." Id. at 1260. But when a claim could not have been raised in a prior habeas petition, courts have interpreted Panetti to permit that claim to be raised in a subsequent petition. United States v. Buenrostro, 638 F.3d 720, 725 (9th Cir.2011) (per curiam) ("Panetti do[es] not apply only to Ford claims. Prisoners may file second-in-time petitions based on events that do not occur until a first petition is concluded."); Johnson v. Wynder, 408 Fed.Appx. 616, 619 (3d Cir.2010) ("We see no reason to avoid applying Panetti in the context of other types of claims that ripen only after an initial federal habeas petition has been filed."); United States v. Lopez, 577 F.3d 1053, 1064 (9th Cir.2009) ("The considerations the [Supreme] Court identified in support of its holding are not specifically limited to Ford claims, and therefore must be considered in deciding whether other types of claims that do not survive a literal reading of AEDPA's gatekeeping requirements may nonetheless be addressed on the merits."(citation omitted)).