              Case: 12-16353    Date Filed: 01/21/2014   Page: 1 of 5


                                                             [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 12-16353
                            Non-Argument Calendar
                          ________________________

    D.C. Docket Nos. 8:10-cv-02743-SCB-TGW; 8:04-cr-00348-SCB-TGW-1



RONALD J. TRUCCHIO,

                                                              Petitioner-Appellant,

                                      versus

UNITED STATES OF AMERICA,

                                                             Respondent-Appellee.

                          ________________________

                   Appeal from the United States District Court
                       for the Middle District of Florida
                         ________________________

                                (January 21, 2014)

Before MARCUS, MARTIN and ANDERSON, Circuit Judges.

PER CURIAM:

      Ronald Trucchio, through counsel, appeals the district court’s dismissal of

his 28 U.S.C. § 2255 motion to vacate, set aside, or correct. On appeal, Trucchio
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argues that the court erred in dismissing his motion to vacate as untimely because

it was filed after the one-year period set forth in 28 U.S.C. § 2255(f)(4). He argues

that the court incorrectly determined that the material containing the statements

made by co-conspirator John Alite to law enforcement, which formed the basis of

Trucchio’s § 2255 motion (also referred to as the “18 U.S.C. § 3500 material”),

became available when the United States v. Gotti jury was discharged on

December 1, 2009. Instead, Trucchio argues, the material underlying his claim

was not available to him before January 13, 2010, because neither the Gotti

defense counsel nor the government, the only two potential sources from which he

could have obtained the material, were willing to provide it to him prior to the

government declaring nolle prosequi. Further, Trucchio had no direct knowledge

of the details and nature of the Gotti protective order, and, thus, could not have

reasonably known that it would be lifted upon the discharge of the jury. Trucchio

maintains that he made diligent efforts throughout the duration of the Gotti case to

obtain the § 3500 material.

      We review a district court’s findings of fact in a 28 U.S.C. § 2255

proceeding for clear error, and its legal conclusions de novo. Garcia v. United

States, 278 F.3d 1210, 1212 (11th Cir. 2002). Specifically, we review de novo a

district court’s determination that a petition for federal habeas corpus relief is time-

barred. Jones v. United States, 304 F.3d 1035, 1037 (11th Cir. 2002). A § 2255


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motion is timely filed, inter alia, within one year of “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(f)(4). Because a fundamental

purpose of § 2255 is to establish finality in post-conviction proceedings, the one-

year limitation period for filing a § 2255 motion is mandatory and unequivocal.

Jones, 304 F.3d at 1039-40 (discussing the issue of equitable tolling of the

statutory limitation period).

      We have held that the “due diligence” element of § 2255(f)(4) requires

neither the “maximum feasible diligence” nor the undertaking of repeated

exercises in futility, but it does require that a prisoner make “reasonable efforts” in

discovering the factual predicate of his claim. Aron v. United States, 291 F.3d 708,

712 (11th Cir. 2002). “Moreover, the due diligence inquiry is an individualized

one that must take into account the conditions of confinement and the reality of the

prison system.” Id. (quotations omitted).

      Neither we nor the U.S. Supreme Court has substantively analyzed what

effort would satisfy the due diligence requirement in a case such as this, where

multiple defendants were tried for participating in the same criminal organization,

and where evidence surfaced in a piecemeal fashion throughout various trials.

Instead, the primary cases dealing with due diligence address the issue of whether

a petitioner exercised due diligence in discovering that a prior state conviction that


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formed the basis of his sentence enhancement had been vacated. See, e.g., Johnson

v. United States, 544 U.S. 295, 308, 125 S. Ct. 1571, 1580-81 (2005) (“diligence

can be shown by prompt action on the part of the petitioner 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 [his] later sentence”).

      As discussed below, the district court’s finding—that the § 3500 material

forming the purported basis of Trucchio’s § 2255 motion became available on

December 1, 2009—was not clearly erroneous. Thus, Trucchio fails to show that

he filed his § 2255 motion within one year of the date upon which the new

evidence became reasonably available. The statutory language, “the date on which

the facts . . . could have been discovered,” indicates that the one-year period begins

on the first day the evidence becomes reasonably available, thus giving the movant

one year to request, obtain, review, and incorporate any new information into a

§ 2255 motion. See 28 U.S.C. § 2255(f)(4). Therefore, there is a distinction

between: (1) the date on which the evidence objectively becomes reasonably

amenable to discovery, in this case on December 1, 2009, when the Gotti jury was

discharged and the protective order was lifted, and (2) the date on which the

movant subjectively believes that he could physically access the material, here on

January 13, 2010. See Aron, 291 F.3d at 711.




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      Trucchio contends that even if he had requested the § 3500 material from the

government as of the discharge of the Gotti jury, the material would have

inevitably arrived long after December 1, 2009, and likely no earlier than January

13, 2010, the first day on which the Gotti defense was willing to share with him the

§ 3500 materials. Trucchio’s argument, however, is flawed because, even though

he made some effort to obtain the § 3500 materials, the court reasonably concluded

that he could have first accessed such materials as of December 1, 2009. Evidence

shows that the § 3500 material underlying Trucchio’s § 2255 motion became

reasonably available on December 1, 2009. See Aron, 291 F.3d at 712. Trucchio’s

conversations with friends and family during the relevant period of time and his

ability to retain Ginsberg as his counsel demonstrated that he had the resources and

knowledge necessary to discover that the Gotti protective order would terminate

upon the discharge of the Gotti jury. Notably, because Trucchio’s lawyer,

Ginsberg, had been participating on the Gotti defense team, Ginsberg would have

known, and easily could have communicated if asked, the nature and duration of

the Gotti protective order. Accordingly, the district court did not clearly err in

finding that Trucchio failed to exercise due diligence in discovering the

purportedly “new evidence” underlying his claim.

      AFFIRMED.




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