UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


UNITED STATES

v.

CICERO, KENDRICK A.


99-3041a

D.C. Cir. 2000


*	*	*


Ginsburg, Circuit Judge: Kendrick Cicero and Ian Thorne  filed separate
appeals presenting the same questions: Must a  prisoner whose
conviction became final before April 24,  1996--the effective date of
the Antiterrorism and Effective  Death Penalty Act of 1996--raise any
challenge to his convic- tion or to his sentence, pursuant to 28
U.S.C. s 2255, within  one year of the effective date of the Act? If
so, is that time  limitation subject to equitable tolling? And if it
is, then is  either appellant entitled to such tolling based upon the
equity  of his case?


We hold first that a prisoner whose conviction became final  prior to
April 24, 1996 must have filed his s 2255 motion  within one year of
that date. Further, we hold that regard- less whether this limitation
is subject to equitable tolling--a  question we need not decide
today--the cases before us do  not warrant such relief.


I. Background


Prior to the effective date of the AEDPA a prisoner could  challenge
his conviction or sentence as a violation of the  Constitution of the
United States by filing a motion under 28  U.S.C. s 2255 at almost any
time. See Mickens v. United  States, 148 F.3d 145, 146 (2d Cir. 1998).
As amended by that  Act, paragraph six of s 2255 now limits the time
in which a  prisoner may bring such a motion as follows:


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 be- comes final;


(2) the date on which the impediment to making a mo- tion 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


Messrs. Cicero and Thorne ask us to excuse the tardiness  of their
motions on the ground that they were impeded from  timely filing their
s 2255 motions by government actions  beyond their control. They do
not, however, claim that the  Government acted unlawfully.


A. Cicero's Case


Mr. Cicero was convicted in 1992 of possession with intent  to
distribute and of conspiracy to distribute cocaine base, in  violation
of 21 U.S.C. ss 841 and 846. He received concur- rent sentences of 240
months of incarceration and five years  of supervised release, as well
as a fine and a special assess- ment. Mr. Cicero appealed and this
court affirmed his  convictions. See United States v. Cicero, 22 F.3d
1156 (D.C.  Cir.), cert. denied, 513 U.S. 905 (1994).


Mr. Cicero states that he began working on a motion  challenging his
conviction and sentence in 1996. His work  was interrupted several
times that year, however. In Octo- ber 1996, Mr. Cicero was stabbed by
another inmate; he  spent five days in the hospital and was then
placed in  protective segregation for an unspecified period. During
this  time, Mr. Cicero had access to the prison library for only one 
hour approximately every three weeks. On April 14, 1997,  prison
officials packed Mr. Cicero's possessions, including his  legal
papers, in anticipation of his transfer to a different  facility. He
did not arrive there and regain his possessions  until June 20.


Mr. Cicero signed and mailed his s 2255 motion on July 24,  1997. The
district court clerk's office received it on July 28.  The district
court dismissed Mr. Cicero's motion as untimely  because he had failed
to file it before expiration of the one  year grace period running
from the effective date of the  AEDPA. Mr. Cicero appeals, claiming he
was prevented  from timely filing by acts of the Government, that is,
of prison  officials, beyond his control.


B. Thorne's Case


Mr. Thorne was convicted in 1991 of possession with intent  to
distribute and of conspiracy to distribute and to possess  with intent
to distribute cocaine base, in violation of 21 U.S.C.  ss 841 and 846.
He was sentenced to 151 months of incar- ceration and five years of
supervised release, and on appeal  we affirmed his conviction. See
United States v. Thorne, 997  F.2d 1504 (D.C. Cir. 1993).


Mr. Thorne states that in November 1995, after several  unsuccessful
attempts to obtain from his attorney discovery  materials and other
documents related to his case, he peti- tioned the district court to
compel their release. In March  1996 the district court ordered Mr.
Thorne's attorney to  provide him with a copy of his case file, and
Mr. Thorne  submitted a motion seeking the transcript of argument in
the  appeal of his codefendant. In December 1996 the court  denied Mr.
Thorne's request for the transcript, reasoning that  the appeal was a
matter of public record and Mr. Thorne had  not demonstrated that he
could not otherwise obtain a copy of  the transcript.


Mr. Thorne further states that he had been working on his  s 2255
motion with a "jailhouse lawyer" named Muhammad  Al'Askari, and that
their progress was halted when Mr.  Al'Askari was placed in
segregation some time prior to April  24, 1997. Mr. Thorne's legal
papers were packed and stored  with Mr. Al'Askari's possessions during
the period of his  segregation, which ended early in June. Mr. Thorne
gave his  s 2255 motion to prison officials for mailing on June 11 and
 the motion was filed in the district court on June 24. The  district
court dismissed Mr. Thorne's motion as untimely  because it was
submitted more than one year after the  effective date of the AEDPA.
Mr. Thorne requested recon- sideration and asked the court equitably
to toll the time  limitation. The court declined, stating that
although the time  limitation in s 2255 is subject to equitable
tolling, Mr. Thorne  had not alleged facts that would warrant tolling
in his case.  On appeal Mr. Thorne argues that the time limitation in 
s 2255 is subject to equitable tolling and that tolling is  warranted


II. Analysis


We consider first application of the time limitation in  s 2255 to a
prisoner whose conviction became final before the  effective date of
the AEDPA. We address this issue de novo.  See Moore v. United States,
173 F.3d 1131, 1133 (8th Cir.  1999). Second, we consider whether,
assuming the time limit 


in s 2255 is subject to equitable tolling, it should be tolled in  the
cases before us.


A. One Year Grace Period


We need not linger long over the first issue. The parties  agree, as do
our sister Circuits, that a prisoner whose convic- tion became final
before the AEDPA was enacted has a one  year grace period from the
date of enactment in which to file  a motion under s 2255. See Rogers
v. United States, 180  F.3d 349, 354 (1st Cir. 1999); Mickens v.
United States, 148  F.3d 145, 148 (2d Cir. 1998); Burns v. Morton, 134
F.3d 109,  112 (3d Cir. 1998); Brown v. Angelone, 150 F.3d 370, 374-75
 (4th Cir. 1998); United States v. Flores, 135 F.3d 1000, 1006  (5th
Cir. 1998); Brown v. O'Dea, 187 F.3d 572, 576-77 (6th  Cir. 1999);
O'Connor v. United States, 133 F.3d 548, 550 (7th  Cir. 1998); Moore
v. United States, 173 F.3d 1131, 1135 (8th  Cir. 1999); United States
v. Valdez, 195 F.3d 544, 546 (9th  Cir. 1999); United States v.
Simmonds, 111 F.3d 737, 746  (10th Cir. 1997); Goodman v. United
States, 151 F.3d 1335,  1337 (11th Cir. 1998). This unanimity of view
reflects, no  doubt, that without such a grace period a prisoner
convicted  before the effective date of the AEDPA, when there was no 
time limitation for filing a s 2255 motion, would be denied a 
reasonable time within which to bring a claim before losing  the right
to do so. See Flores, 135 F.3d at 1003-06. In any  event, the grace
period expired on April 24, 1997. See  Rogers, 180 F.3d at 355;
Mickens, 148 F.3d at 148; Villegas  v. Johnson, 184 F.3d 467, 469 &
n.1 (5th Cir. 1999); Towns v.  United States, 190 F.3d 468, 469 (6th
Cir. 1999); Moore, 173  F.3d at 1135; Simmonds, 111 F.3d at 746; but
cf. Morton,  134 F.3d at 112 (grace period expires April 23, 1997);
Ange- lone, 150 F.3d at 375-76 (same); O'Connor, 133 F.3d at 550 
(same); Valdez, 195 F.3d at 546 (same); Goodman, 151 F.3d  at 1337
(same); United States v. Jones, 963 F. Supp. 32, 34- 35 (D.D.C. 1997)


Although Messrs. Cicero and Thorne were entitled to the  benefit of the
grace period, neither appellant filed his s 2255  motion within the
period allowed. Their motions will be 


deemed timely, therefore, only if that time limitation may be 
equitably tolled in their cases.


B. Equitable Tolling


Unless the Congress has provided otherwise, courts gener- ally apply a
rebuttable presumption that a statute of limita- tion is subject to
equitable tolling. See Irwin v. Department  of Veterans Affairs, 498
U.S. 89, 95-96 (1990). Although  most of the circuits that have
considered the questions have  concluded that s 2255 is a statute of
limitation and that it is  subject to equitable tolling, see Kapral v.
United States, 166  F.3d 565, 575 (3d Cir. 1999); Harris v.
Hutchinson, No. 99- 6175, , at *13 (4th Cir. Apr. 4,  2000); Fisher v.
Johnson, 174 F.3d 710, 713 (5th Cir. 1999);  Calderon v. United States
Dist. Court (Calderon), 128 F.3d  1283, 1289 (9th Cir. 1997); Miller
v. Marr, 141 F.3d 976, 978  (10th Cir. 1998); Sandvik v. United
States, 177 F.3d 1269,  1271 (11th Cir. 1999); cf. also Moore, 173
F.3d at 1134  (holding s 2255 is statute of limitation in case where
equita- ble tolling was not at issue), the Seventh Circuit has ques-
tioned this conclusion even while applying it to a petition filed 
under s 2254, see Taliani v. Chrans, 189 F.3d 597, 598 (7th  Cir.
1999) (in view of "express tolling provisions [of 28 U.S.C.  s
2244(d)(1)] it is unclear what room remains for importing  the
judge-made doctrine of equitable tolling"), and at least  one district
court has disagreed entirely, see Giles v. United  States, 6 F. Supp.
2d 648, 649 (E.D. Mich. 1998) (concluding  that s 2255 is a limit on
jurisdiction of court, not a statute of  limitations, and therefore is


The circuits holding that s 2255 is subject to equitable  tolling have
announced some general principles for determin-




__________

n * Some of the cited cases consider whether a court may equitably 
toll the time limitation in 28 U.S.C. s 2254, which applies to post-
conviction motions filed by state prisoners. Courts have generally 


ing whether the facts in a particular case justify tolling the 
limitation. Equitable tolling, which is to be employed "only 
sparingly" in any event, see Irwin, 498 U.S. at 96, has been  applied
in the context of the AEDPA only if " 'extraordinary  circumstances'
beyond a prisoner's control make it impossible  to file a petition on
time." See Calderon, 128 F.3d at 1288. In  the last-quoted case the
court equitably tolled the time limit  in s 2244(d)(1) because the
prisoner's lead counsel had with- drawn from the representation after
accepting employment in  another state and his successor as counsel
was unable to use  his work product. See also Miles v. Prunty, 187
F.3d 1104,  1107 (9th Cir. 1999) (equitably tolling time limit where
prison- er submitted petition for mailing five days before deadline 
and petition was returned to him after deadline had passed).


The Fifth Circuit has suggested several circumstances in  which
equitable tolling is not warranted. The prisoner's  ignorance of the
law or unfamiliarity with the legal process  will not excuse his
untimely filing, nor will a lack of represen- tation during the
applicable filing period. See Fisher, 174  F.3d at 714-15; Turner v.
Johnson, 177 F.3d 390, 392 (5th  Cir. 1999). In addition, the court
will not relieve a petitioner  who has sat upon his rights. See
Coleman v. Johnson, 184  F.3d 398, 402-03 (5th Cir. 1999).


As it turns out, we need not decide today whether s 2255 is  subject to
equitable tolling because neither Mr. Cicero nor 




__________

n applied the same analysis to the time limitations in s 2254 and  s
2255. See Flores, 135 F.3d at 1002 n.7 ("Because of the similarity  of
the actions under sections 2254 and 2255, they have traditionally 
been read in pari materia where the context does not indicate that 
would be improper"); but cf. Hoggro v. Boone, 150 F.3d 1223, 1226 
(10th Cir. 1998) (noting that unlike s 2255, s 2254 is tolled for time
 spent pursuing post-conviction relief in state court, and suggesting 
that "the apparently firm deadline of April 24, 1997, in [United 
States v. Simmonds, 111 F.3d 737 (10th Cir. 1997)] is appropriate 
only for motions ... under s 2255"); Paige v. United States, 171  F.3d
559, 561 (8th Cir. 1999) (citing Hoggro for proposition that 
equitable tolling is available in s 2254 cases but not in s 2255 


Mr. Thorne has alleged such "extraordinary circumstances"  as to
warrant equitable tolling in any event.


1. Cicero's Case


Mr. Cicero claims that he first learned of the one year  limitation in
the AEDPA in October 1996 when he filed a  s 2255 motion while he was
in protective segregation. He  continued work on the s 2255 motion he
had begun earlier  that year, although he was hampered by reduced
access to  the prison law library due to his segregation. His work was
 interrupted from April 14 until sometime in June 1997 while  he was
separated from his legal papers during a transfer  between prisons--an
interruption caused by prison officials  whose conduct was beyond his
control. Mr. Cicero concedes  that his transfer and incidental
separation from his papers  were not unlawful, and therefore do not
implicate s 2255  p 6(2). He asserts, nonetheless, that the time to
file should  be tolled because the Government's action--rather than
his  own inaction--caused him to miss the filing deadline.


Mr. Cicero's conviction became final in 1994. He had from  then until
April 24, 1997 to prepare a s 2255 motion. Al- though he has
identified several impediments to his work on  the motion during the
last six months of the grace period, Mr.  Cicero has not suggested
that he was prevented from working  on the motion at any time before
that period. In Miller, 141  F.3d at 978, the court considered whether
to toll the time  limitation in s 2244(d) for a state prisoner who was
convicted  in 1993 and in 1995 was transferred to a private
correctional  institution that did not have the law books relevant to
his  case. It was not until the prisoner was returned to a state 
institution, after the one year grace period had expired, that  he
learned of the time limitation. Id. Because the prisoner's  lack of
access to legal materials from 1995 to 1997 "[did] not  explain [his]
lack of pursuit of his federal claims before the  transfer," the Tenth
Circuit did not toll the time limitation.


Mr. Cicero, too, had ample time in which to complete his  motion.
Although his work may have been interrupted dur- ing the final months
of the grace period, we cannot say that 


Mr. Cicero presents such "extraordinary circumstances" as to  warrant
equitable tolling.


2. Thorne's Case


Mr. Thorne also argues that his s 2255 motion was untime- ly for
reasons beyond his control. He began work on his  motion in 1995; his
work was delayed in part by the district  court's lengthy
consideration of his requests for documents,  the last of which the
court resolved in December 1996. In  the spring of 1997, however, Mr.
Thorne unfortunately gave  his legal papers to a jailhouse lawyer
whose placement in  segregation separated Mr. Thorne and his papers
from some  time before the expiration of the one year grace period
until  after the filing deadline had passed.


The district court declined to toll the limitation for Mr.  Thorne
because "[t]here has been no showing here that the  defendant
diligently pursued the filing of his motion." The  Court explained its
reasoning as follows:


It is unclear when [Mr. Al'Askari] was placed in ad- ministrative
segregation. For example, [Mr. Al'Askari]  may have been placed in
administrative segregation just  prior to [the deadline], or shortly
before that date. It is  not clear what, if any, action the defendant
took to have  the papers returned to him. Moreover, the defendant  has
not stated why he did not request an extension of  time from the Court
within which to file his motion.


Mr. Thorne acknowledges that he never asked the prison  officials to
return his legal documents, but he claims that such  a request would
have been futile because one inmate was not  permitted to retrieve the
property of another after it had  been packed up due to a segregation
order. He did not file a  motion for an extension of time, he says,
because he was  unaware that he could do so. Mr. Thorne argues that
before  dismissing his motion as untimely the district court should 
have sought additional information regarding what steps he  might have
taken to regain possession of his papers. He asks  us either to toll
the time limitation or at least to remand his  case to the district
court for further factfinding.


Mr. Thorne has not given us sufficient reason to take either  step. He
was not prejudiced by the district court's delay in  deciding his
requests for documents, as the court ruled upon  his motions well in
advance of the deadline for filing his  s 2255 motion. Further, he
entrusted Mr. Al'Askari with his  legal documents at his peril. See,
e.g., Paige v. United States,  171 F.3d 559, 561 (8th Cir. 1999)
(equitable tolling not avail- able to prisoner whose petition,
prepared by an inmate in a  different prison, was delayed in mail);
Henderson v. Johnson,  1 F. Supp. 2d 650, 655 (N.D. Tex. 1998)
(equitable tolling  denied to prisoner to whom fellow inmate had
fraudulently  represented that he had timely filed petition for him).
We  agree with the district court, therefore, that Mr. Thorne has  not
alleged any circumstances surrounding the untimeliness  of his s 2255
motion so compelling as to warrant tolling the  time limit.


III. Summary and Conclusion


Prisoners whose convictions became final prior to the effec- tive date
of the AEDPA had until April 24, 1997 to file a  motion for relief
under s 2255. We do not decide whether  this limitation is generally
subject to equitable tolling because  even if it is we would not toll
the limitation in either of the  cases before us. The judgments of the
district court are  therefore


Affirmed.