                                                            [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                    FILED
                       FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                         ________________________ ELEVENTH CIRCUIT
                                                                DEC 4, 2008
                               No. 07-15137                   THOMAS K. KAHN
                           Non-Argument Calendar                  CLERK
                         ________________________

                     D. C. Docket Nos. 06-00068-CV-HL-7
                              03-00021-CR-HL

BENJAMIN WRIGHT,


                                                             Petitioner-Appellant,

                                     versus

UNITED STATES OF AMERICA,

                                                            Respondent-Appellee.


                         ________________________

                  Appeal from the United States District Court
                      for the Middle District of Georgia
                       _________________________

                              (December 4, 2008)

Before TJOFLAT, BLACK and PRYOR, Circuit Judges.

PER CURIAM:

     On July 18, 2003, a Middle District of Georgia grand jury indicted petitioner
on two counts of possession with intent to distribute cocaine base, in violation of

21 U.S.C. § 841(a)(1). Count One involved five grams; Count Two involved fifty

grams. Pursuant to a plea agreement, petitioner pled guilty to the Count One

offense, and on April 22, 2004, the district court sentenced him to prison as a

career offender, see U.S.S.G. § 4B1.1(a), for a term of 210 months. He appealed

his sentence, but, on October 13, 2004, we dismissed the appeal because, in

executing the plea agreement, he had waived his right to appeal.

       On April 25, 2005, petitioner moved the district court to vacate his sentence

pursuant to 28 U.S.C. § 2255. The court denied his motion in a judgment entered

on January 11, 2006.1 On June 22, 2006, we granted petitioner leave to file a

second § 2255 motion so that he could present a claim that his career offender

status had been eliminated retroactively because the two state court convictions

that had given rise to the career offender status had been overturned. The second

§ 2255 motion was then filed in the district court, on July 27, 2006.

       A magistrate judge held an evidentiary hearing on the motion and



       1
           Petitioner thereafter moved the district court to alter or amend its judgment pursuant to
Fed. R. Civ. P. 59(e). The court denied his motion and on March 6, 2006, he filed a notice of
appeal. We granted his application for a certificate of appealability on June 6, 2006 on two
issues, neither relevant here, Case No. 06-11665. On December 28, 2006, we vacated the
district court’s judgment and remanded the case with the instruction that the court address
petitioner’s claim that he was deprived of a U.S.S.G. § 5K1.1 substantial assistance reduction of
his base offense level due to ineffective assistance of counsel. Wright v. United States, 212
Fed.Appx. 904, C.A. 11 (Ga.) 2006. That claim is still pending before the district court.

                                                  2
recommended that the district court deny it on the ground that petitioner, who was

represented by counsel, had failed to exercise due diligence in seeking the vacatur

of the state court convictions.2 The district court, on de novo review of the record

before the magistrate judge, adopted his recommendation and denied petitioner’s

motion. We granted a certificate of appealability on one issue: whether, in light of

Johnson v. United States, 544 U.S. 295, 125 S.Ct. 1571, 161 L.Ed. 2d 542 (2005),

the district court properly found that petitioner failed to exercise due diligence in

seeking to vacate his two prior state court convictions.

       As amended by the Antiterrorism and Effective Death Penalty Act of 1996,

28 U.S.C. § 2254 imposes a 1-year period of limitations on motions by prisoners

seeking to modify their federal sentences:

       The limitation period shall run 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 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 the right has been newly 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

       2
         Over two years had passed between the imposition of petitioner’s sentence on April 22,
2004, and the filing of the motions to vacate the state court convictions.

                                               3
       (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, ¶ 6.

       In Johnson, the question before the Court was: “when the 1-year statute of

limitations in 28 U.S.C. § 2255, ¶ 6(4), begins to run in a case of a prisoner's

collateral attack on his federal sentence on the ground that a state conviction used

to enhance that sentence has since been vacated.” Id. at 298, 125 S.Ct. at 1575-76.

The Court held that “the period begins when a petitioner receives notice of the

order vacating the prior conviction, provided that he has sought it with due

diligence in state court, after entry of judgment in the federal case with the

enhanced sentence.” Id. Once the petitioner has been sentenced in federal court,

“the significance of inaction [on his part[ is clear,” id. at 309, 125 S.Ct. at 1581,

and the due diligence clock begins to run.3 A district court finding that the

petitioner has failed to exercise due diligence is a question of fact which we review

for clear error. Aron v. United States, 291 F.3d 708, 711 (11th Cir. 2002).

       In the case at hand, petitioner waited over two years before moving the state

court to vacate his convictions. Petitioner contends that he began diligently


       3
          In Johnson, the Court held that Johnson “fell far short of reasonable diligence” by
waiting more than three years from the date of his judgment before filing his state habeas
petition. Id. at 308-11, 125 S.Ct. at 1580-82. In fact, he “would still have delayed
unreasonably” if the delay had been only 21 months. Id. at 311, 125 S.Ct. at 1582.


                                                 4
pursuing the vacatur of his convictions in February or March 2005, less than one

year following the imposition of his federal sentence, and that he hired an attorney

to assist him. In short, he suggests that his pro se efforts coupled with what his

attorney accomplished showed that he was “reasonably diligent under the

circumstances.” This is the sort of argument the petitioner made in Johnson:

“Johnson . . . offered no explanation for th[e] delay, beyond observing that he was

acting pro se and lacked the sophistication to understand the procedures.” Id. at

311, 125 S.Ct. at 1582. The Court rejected it with this observation: “we have never

accepted pro se representation alone or procedural ignorance as an excuse for

prolonged inattention when a statute’s clear policy calls for promptness.” Id.

      The district court’s finding – that neither petitioner nor his attorney

established that they exercised due diligence in the more than two-year period

between the imposition of petitioner’s federal sentence and the filing of the

motions seeking vacatur of the two state court convictions at issue – is well

supported by the record and thus not clearly erroneous.

      AFFIRMED.




                                           5
