                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
      ___________

      No. 05-4291
      ___________

E.J.R.E.,                             *
                                      *
            Appellant,                *
                                      *
      v.                              *
                                      *
United States of America,             *
                                      *
           Appellee,                  *
      ___________
                                          Appeals from the United States
      No. 05-4293                         District Court for the
      ___________                         District of South Dakota.

T.R.E.,                               *
                                      *
            Appellant,                *
                                      *
      v.                              *
                                      *
United States of America,             *
                                      *
            Appellee,                 *
        ___________

        No. 05-4294
        ___________

C.R.,                                      *
                                           *
             Appellant,                    *
                                           *
        v.                                 *
                                           *
United States of America,                  *
                                           *
             Appellee,                     *

                                     ___________

                              Submitted: June 12, 2006
                                 Filed: July 18, 2006
                                  ___________

Before BYE, LAY, and RILEY, Circuit Judges.
                              ___________

LAY, Circuit Judge.

                                I. BACKGROUND

      On November 2, 2002, an amendment to 18 U.S.C. § 5037(a) became effective
vesting federal district courts with the express statutory authority to impose a juvenile
sentence that includes a period of detention followed by a term of juvenile delinquent
supervision.1 E.J.R.E., C.R., and T.R.E. (collectively “Appellants”), were each

        1
      See 21st Century Department of Justice Appropriations Authorization Act,
Pub. L. No. 107-273, § 12301, 116 Stat. 1758 (codified as amended at 18 U.S.C.
§ 5037 (2003)).

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adjudicated delinquent and subsequently sentenced to detention followed by a term
of juvenile delinquent supervision for conduct that occurred before November 2,
2002.

       On May 21, 2004, we held, in United States v. J.W.T., 368 F.3d 994, 996-97
(8th Cir. 2004), that the amendment to § 5037 expressly authorizing juvenile
delinquent supervision could not be applied to acts of delinquency committed prior
to November 2, 2002. In light of our ruling, Appellants filed § 2255 motions in
federal district court to vacate, set aside, or correct their sentences. E.J.R.E. and C.R.
filed their motions on May 17, 2005, and T.R.E. filed his motion on May 23, 2005.
The district court2 denied all three motions as untimely. Appellants now challenge
this ruling.

                                  II. DISCUSSION

      A.     Paragraph 6(4) of 28 U.S.C. § 2255

      Appellants first argue that 28 U.S.C.§ 2255 para. 6(4) renders their respective
§ 2255 motions timely.3 We review de novo the district court’s decision to dismiss
Appellants’ § 2255 motions based on the statute of limitations. See Snow v. Ault, 238
F.3d 1033, 1034 (8th Cir. 2001); see also Washington v. United States, 243 F.3d 1299,
1300 (11th Cir. 2001).



      2
        The Honorable Karen E. Schreier, Chief United States District Judge for the
District of South Dakota.
      3
        T.R.E.’s sentence has since expired, while both E.J.R.E. and C.R. are presently
serving terms on juvenile delinquent supervision. Although each juvenile’s case was
adjudicated separately below, Appellants’ claims were subsequently consolidated into
one single appeal. Therefore, because one of the parties retains a “cognizable interest
in the outcome,” the case is not moot. Powell v. McCormack, 395 U.S. 486, 496-97
(1969).

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       Under paragraph 6(4), a § 2255 petition is timely if it is filed by a federal
prisoner 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.”4 The
plain language of paragraph 6(4) makes clear that Appellants must show the existence
of a new fact, while also demonstrating they acted with diligence to discover the new
fact. Appellants contend the Eighth Circuit’s decision in J.W.T. constitutes a new
“fact” under paragraph 6(4). In support of this argument, Appellants cite the United
States Supreme Court’s recent decision in Johnson v. United States, 544 U.S. 295
(2005).

      In Johnson, petitioner Robert Johnson was convicted of a federal drug crime
and was subsequently sentenced as a career offender under the United States
Sentencing Guidelines. Id. at 298. The career offender enhancement was predicated


      4
       28 U.S.C. § 2255 para. 6 provides that:

      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 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 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
             diligence.

                                         -4-
on Johnson’s two prior state court convictions for cocaine distribution. Id.
Thereafter, Johnson petitioned for writ of habeas corpus in state court, and one of the
convictions used by the federal district court to enhance his sentence was vacated. Id.
at 300-01. Johnson then filed a § 2255 motion in district court to vacate his enhanced
federal sentence, which was denied. Id. at 301. The Eleventh Circuit affirmed,
reasoning that a state court order vacating a conviction was not a fact for purposes of
paragraph 6(4). Id. at 301-02. The Supreme Court granted certiorari. Id. at 302.
Although the Court ultimately concluded that petitioner did not qualify for relief under
paragraph 6(4) because he failed to act with diligence, id. at 311, it did, as a
preliminary matter, note that Johnson’s vacated state court conviction was a qualifying
fact under paragraph 6(4). Id. at 306-07. This is because a predicate conviction has
long been understood to be “subject to proof or disproof like any other factual issue.”
Id. at 307.

       Here, however, there is no operative fact to invalidate. A decision such as the
one promulgated in J.W.T., unlike a predicate conviction, is a ruling exclusively
within the domain of the courts and is incapable of being proved or disproved. See
Shannon v. Newland, 410 F.3d 1083, 1089 (9th Cir. 2005) (“We would never, for
example, ask a jury to decide whether a judicial decision had indeed changed a state’s
law in the relevant way, nor would the parties introduce evidence on the question.”).
Moreover, even assuming J.W.T. could qualify as a new fact under paragraph 6(4),
Appellants did not contest the district court’s sentence by filing a direct appeal and,
therefore, cannot demonstrate they acted with the requisite diligence after final
judgment was entered. See Johnson, 544 U.S. at 310 (requiring petitioner to act
diligently after the district court enters judgment to preserve eligibility to invoke the
statute of limitations under § 2255 para. 6(4)).

       Finally, we note that paragraph 6(3) further supports the conclusion that a
decision taken from a federal court of appeals does not provide an independent basis
to trigger the one-year statute of limitations provided under § 2255. Paragraph 6(3)

                                          -5-
states that the statute of limitations will begin to run only where the Supreme Court
recognizes a new right that it applies retroactively to cases on collateral review.
§ 2255 para. 6(3). We believe Congress, by limiting paragraph 6(3) in this fashion,
impliedly rejected the notion that the creation of a new right by the Supreme Court
that is not made retroactive to cases on collateral review, other rulings of law by the
Supreme Court, and decisions taken from the courts of appeal in all instances, could
trigger any of the limitations periods enumerated under § 2255. Therefore, the district
court’s ruling was proper.

      B.     Equitable Tolling

       Appellants next contend the doctrine of equitable tolling should be applied to
toll the one-year statute of limitations provided under § 2255. We review this claim
de novo. United States v. Martin, 408 F.3d 1089, 1093 (8th Cir. 2005). Equitable
tolling is only appropriate in instances where extraordinary circumstances beyond a
petitioner’s control prevent timely filing. See id. at 1093. The petitioner must also
demonstrate he acted with due diligence in pursuing his petition. See id. at 1095.

       Even if this court’s decision in J.W.T. could constitute an “extraordinary
circumstance,” we can reference no impediment whatsoever that would have inhibited
Appellants’ ability to file a timely § 2255 petition. The mere fact that our ruling in
J.W.T. made it more likely that Appellants’ collateral attack would be successful does
not change the reality that Appellants were free, at any time, to file their § 2255
petitions after final judgment was entered and before the one-year statute of
limitations period had expired. § 2255 para. 6(1). Further, Appellants’ failure to file
a direct appeal demonstrates a lack of diligence and, as such, the district court’s ruling
was proper.




                                           -6-
                    III. CONCLUSION

For the aforementioned reasons, we affirm.
               ______________________________




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