                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT           FILED
                      ________________________ U.S. COURT OF APPEALS
                                                         ELEVENTH CIRCUIT
                                                            MAY 11, 2005
                             No. 03-15546
                                                          THOMAS K. KAHN
                         Non-Argument Calendar
                                                              CLERK
                       ________________________

            D. C. Docket Nos. 03-00049-CV-2 & 97-0036 CR-2-2

UNITED STATES OF AMERICA,

                                                       Petitioner-Appellant,

                                  versus

WARRICK A. GRIFFIN,

                                                       Respondent-Appellee.

                       ________________________

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

                             (May 11, 2005)

                   ON REMAND FROM THE
             SUPREME COURT OF THE UNITED STATES

Before BIRCH, DUBINA and FAY, Circuit Judges.

PER CURIAM:
      This case is before the Court for consideration in light of United States v.

Johnson, --- U.S. ----, ----, 125 S.Ct. 1571, --- L.Ed.2d----, ---- (2005). The district

court below previously granted Defendant Warrick A. Giffin’s petition for writ of

habeas corpus under 28 U.S.C. § 2255, based upon Griffin’s successful attacks on

state court convictions that contributed to the calculation of his federal sentence.

The government appealed and we reversed the grant of Griffin’s § 2255 motion

and remanded this case. See United States v. Griffin, No. 03-15546 (March 29,

2004). Griffin then sought a writ of certiorari, and the Supreme Court vacated our

opinion and remanded the case to us for consideration in light of Johnson. See

United States v. Griffin, ___ S.Ct. ___, 2005 WL 873400 (Apr. 18, 2005).

      On July 25, 1997, Griffin and two armed co-defendants robbed a bank,

escaping with approximately $23,000. A federal grand jury indicted Griffin, and

he pled guilty to bank robbery, in violation of 18 U.S.C. § 2113. The Presentence

Investigation Report (“PSI”) scored five prior convictions, which resulted in a

category V criminal history. Based upon an offense level of 29, Griffin faced a

guidelines range between 140 and 175 months’ imprisonment. On February 27,

1998, the district court sentenced Griffin to 120 months, reflecting Griffin’s

substantial assistance to the Government under U.S.S.G. § 5K1.1. The ultimate

sentence was later reduced to 100 months under Fed. R. Crim. P. 35.

                                           2
      Griffin subsequently filed a direct appeal, which this Court dismissed on

July 6, 1999, for the Defendant’s failure to pay the appellate docketing and filing

fees. See United States v. Griffin, No. 98-83202-C (July 6, 1999). In 2001, Griffin

then filed an application for writ of habeas corpus in the Superior Court of Wayne

County, Georgia. In that application, Griffin challenged his 1991, 1992, 1993, and

1997 state convictions, which had been calculated into the final score to determine

his federal criminal history category.

      On March 19, 2003, the state court vacated Griffin’s 1992, 1993, and 1997

convictions due to the State’s inability to produce any documents showing that

Griffin had been represented by counsel, fully informed of his rights before

waiving counsel, or given any notice of his rights.

      On March 29, 2003, ten days after the Superior Court order and nearly five

years after his federal conviction, Griffin filed a motion under 28 U.S.C. § 2255,

seeking recalculation of his criminal history category from V to II, based upon the

vacated state convictions. The Government objected on the premise that the

motion was time-barred.

      The magistrate judge rejected the Government’s argument, and found that §

2255's limitations period had been equitably tolled while Griffin challenged his

state court convictions. As such, Griffin’s motion was timely, and the district court

                                         3
adopted the magistrate judge’s recommendation and granted Griffin habeas relief.

The district court resentenced Griffin to time served and ordered his immediate

release from custody on July 25, 2003.

      Shortly after Griffin’s release, we decided Johnson v. United States, 340

F.3d 1219 (11th Cir. 2003), and the Government asked the district court to

reconsider its decision, arguing that Johnson required a contrary result. The

district court denied the Government’s motion, and this appeal followed.

      In its appeal to this Court, the Government asserted that Johnson required:

(1) that a state court's vacatur of prior convictions is not a “fact” within the

meaning of § 2255 ¶ 6(4); and (2) that equitable tolling was inapplicable where the

petitioner knew the facts supporting his attack on his prior state convictions at the

time his federal sentence became final. Johnson, 340 F.3d 1219, 1226-28. We

agreed, and reversed the grant of Griffin’s § 2255 motion and remanded the case

to the district court. See United States v. Griffin, No. 03-15546 (March 29, 2004).

      Since our decision in Mr. Griffin’s case, the United States Supreme Court

has decided Johnson v. United States, --- U.S. ----, 125 S.Ct. 1571, --- L.Ed.2d ----

(2005). While the Supreme Court affirmed our decision in Johnson, it did so on

other grounds; necessitating a reevaluation of Griffin’s case because this Court’s

previous opinion in Johnson controlled the outcome.

                                           4
      In Johnson, the Supreme Court held that when a prisoner collaterally attacks

his federal sentence on the ground that a state conviction used to enhance that

sentence has since been vacated, § 2255's one-year limitations period begins to run

when the petitioner receives notice of the order vacating the prior conviction. Id.

at 1582. While this effectively tolls § 2255's limitations period, the clock only

stops if the prisoner sought the state court vacatur with due diligence after entry of

the judgment in the federal case in which the sentence was enhanced. Id. at 1582.

      In contrast to our opinion in Johnson, the Supreme Court determined that

the state-court order vacating the prisoner's prior conviction is a matter of “fact”

supporting his § 2255 claim, discovery of which triggers the refreshed one-year

limitations period. Id. at 1578-79. Therefore, had the prisoner acted diligently

from the date of entry of judgment by the district court in his federal case to obtain

the state court order vacating his predicate conviction, the one-year limitation

period would have run from the date he received notice of that vacatur.

Nevertheless, the Supreme Court affirmed Johnson’s sentence because he did not

show due diligence. Although he knew that his conviction subjected him to the

career offender enhancement, Johnson neglected to attack the predicate for

enhancement for three years.

      For Griffin, the question now turns on whether he met the requisite showing

                                          5
of due diligence to effectively toll § 2255's limitation. Judgement was entered against

Griffin on March 3, 1998. Griffin did not seek vacatur of his state court convictions

until early 2001 - approximately three years after entry of his federal conviction1.

Under Johnson, such a delay is unreasonable, and as the Supreme Court articulated,

“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. at 1582. On this record, we think Griffin “fell far short of reasonable diligence in

challenging the state conviction[s].” Id. Accordingly, we reverse, once again, the

grant of the Griffin’s § 2255 motion after our reconsideration in light of Johnson,

pursuant to the Supreme Court’s mandate.

REVERSED AND REMANDED.




       1
         In Johnson, the Supreme Court indicated that even a 21-month delay was unreasonable:
“[E]ven if we move the burden of diligence...Johnson would have still delayed unreasonably,
having waited over 21 months.” Id. at 1582.

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