                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-28-2005

In Re:Jeffrey Milton
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-2713




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                                                                 NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                      No. 03-2713


                            IN RE: JEFFREY T. MILTON

                                            Petitioner


              APPLICATION FOR ORDER AUTHORIZING DISTRICT
               COURT TO CONSIDER SECOND OR SUCCESSIVE
                      MOTION UNDER 28 U.S.C. § 2255

           TRANSFERRED FROM UNITED STATES DISTRICT COURT
              FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

                               (Dist. Ct. No. 92-cr-00016)
                    District Court Judge: Honorable Malcolm Muir


                           Submitted pursuant to LAR 34.1(a)
                                   January 19, 2005

                Before: ALITO, MCKEE, and SMITH, Circuit Judges.

                              (Filed: November 28, 2005)


                              OPINION OF THE COURT


PER CURIAM:

             Petitioner Jeffrey T. Milton applies for an order authorizing the District

Court to consider a second or successive motion pursuant to 28 U.S.C. § 2255. We deny
the application.

                                            I.

              In 1987, 1988, and 1990, Milton was convicted of three Massachusetts

crimes. His Presentence Report lists them as:

              a)     7/30/1987: Milton pled guilty to Assault and Battery with a
                     Dangerous Weapon, receiving 1 year, 30 months for assaulting a
                     Probation officer with a club. PSR 5 (Docket No. 87-2266).

              b)     3/28/1988: Milton pled guilty to Assault and Battery with a
                     Dangerous Weapon, receiving 4.5–10 years for assaulting and
                     battering a man with a knife. PSR 5 (Docket No. 88-1670).

              c)     12/5/1990: Milton was convicted of one count of Assault and Battery
                     with a Dangerous Weapon. The sentence would last at least 15–20
                     years after the 1988 sentence was completed. PSR 6 (Docket Nos.
                     89-710; 89-711; 89-112).1

              On December 6, 1988, Milton filed a motion to vacate his conviction in No.

88-1670. See SA2a. This set off a chain of events that eventually resulted in the state

court’s vacatur in 2001 and 2002 of two of the convictions (Nos. 87-2266 and 88-1670)

for ineffective assistance of counsel. See Milton’s Supplemental Response Brief at 3.

              On December 16, 1992, Milton was convicted in federal District Court for



       1
         This paragraph of the PSR asserts that Milton was convicted of three crimes: one
count of Armed Assault with Intent to Murder, and two counts of Assault and Battery
with a Dangerous Weapon. Milton objects, claiming that the State dropped two charges
and ultimately charged him only with one count of assault and battery with a dangerous
weapon. The letter stating Milton’s objection is attached to the PSR and was originally
accompanied by a document in support of the allegation, but that document is neither in
the PSR nor attached to it. For the purposes of this opinion, we assume that Milton is
correct, and we count this sentence as a single conviction.

                                             2
assaulting a correctional officer with a dangerous weapon. A55a. The court sentenced

Milton as a career offender under U.S.S.G. § 4B1 based on the three prior state

convictions listed above. A115a; A65a–66a.

              On April 25, 1997, Milton filed a petition for a writ of habeas corpus in

federal District Court. The District Court treated the writ as a § 2255 motion and denied

it as untimely. A129a–37a.

              On September 28, 2001, one of Milton’s prior state convictions (88-1670)

was vacated. A13a–15a. On November 22, 2002, a Massachusetts judge granted

Milton’s motion for a new trial in No. 87-2266, apparently because of the vacatur in No.

88-1670. On December 19, 2002, Massachusetts filed a nolle prosequi in No. 87-2266.

Id.

              On April 10, 2003, Milton filed a second § 2255 motion in District Court

based on these two state court vacaturs. See A1a–15a. The District Court transferred the

motion to this Court, where Milton applied for leave to file the second motion.

                                             II.

              Motions filed under § 2255 are subject to a one-year statute of limitations

that runs from the latest of several dates, including “the date on which the facts

supporting the claim or claims presented could have been discovered through the exercise

of due diligence.” § 2255 ¶ 6(4). See also United States v. Pollard, 416 F.3d 48, 54

(D.C. Cir. 2005) (applying § 2255 ¶ 6 statute of limitations to a second or successive



                                              3
§ 2255 motion); United States v. Cottage, 307 F.3d 494, 500 (6th Cir. 2002) (same); In re

Vial, 115 F.3d 1192, 1197 n.9 (4th Cir. 1997) (same).

              In Johnson v. United States, 125 S. Ct. 1571 (2005), the Supreme Court

held that when prisoners are convicted of federal crimes predicated on state convictions

that are subsequently vacated, the vacatur itself is a “fact supporting the claim or claims

presented” under § 2255 ¶ 6(4). Id. at 1577. This holding, by itself, troubled the majority

because a petitioner could reset the § 2255 statute of limitations upon “discover[ing]” that

his prior conviction had been vacated, even if he had waited a long time to pursue and

obtain the vacatur. The majority therefore held that “due diligence” in discovering a state

court vacatur includes the duty to diligently challenge the conviction. Id. at 1580–81.

That duty is triggered on the date of the federal court judgment that was predicated on the

prior state conviction. In short, the 1-year “period of limitation” set forth in § 2255 ¶ 6

starts to run from the time the prisoner receives notice of a state court’s vacatur of a

predicate conviction, but only if the prisoner exercised due diligence since the date of the

federal court judgment in attempting to challenge his state conviction.2

              A second or successive § 2255 motion, even if timely, must be certified by

this Court as containing “newly discovered evidence that, if proven and viewed in light of

the evidence as a whole, would be sufficient to establish by clear and convincing




       2
        Johnson established several exceptions to the due diligence requirement that are
not applicable to this case. Id. at 1582 n.8.

                                              4
evidence that no reasonable factfinder would have found the movant guilty of the offense

. . . .” § 2255 ¶ 8. “[T]he factual predicate for the [newly discovered evidence must] not

have been discover[able] previously through the exercise of due diligence.”

§ 2244(b)(2)(B)(i). Milton must make a prima facie showing that he meets these

requirements. In re Turner, 267 F.3d 225, 227 (3d Cir. 2001) (quoting § 2244(b)(3)(C)).

              The Supreme Court’s interpretation of due diligence under § 2255 ¶ 6(4)

applies with equal force to § 2244(b)(2)(B)(i). The two sections contain nearly identical

language—requiring “due diligence” in “discover[ing]” the “predicate” or “supporting”

facts of the “claim.” Both serve to protect the finality of federal court judgments, which

was the core motivation behind the holding in Johnson. Johnson, 125 S. Ct. at 1581.

Applying Johnson to § 2255 ¶ 6(4) but not to § 2244(b)(2)(B)(i) could lead to an

anomalous situation under which claims based on state court vacaturs that were not

diligently pursued may be raised in second motions but not in first motions.

              Accordingly, whether we consider the standard of timeliness or of newly

discovered evidence, Milton must show that he exercised due diligence in challenging his

state court convictions.

                                            III.

              Milton fails to show due diligence. Both parties agree that the relevant date

for assessing due diligence is December 16, 1992, the date of the federal court judgment

predicated on the state court convictions. At that sentencing, Milton had three crimes of



                                             5
violence on his record, and he needed only two to merit his designation as a career

offender. Thus, Milton had to successfully, and diligently, vacate two convictions to be

innocent of career offender status. Milton successfully obtained vacatur of two

convictions, in Nos. 87-2266 and 88-1670.

              Milton did not, however, diligently challenge his conviction in No.

87-2266. According to the docket sheet, the proceedings on this charge were completed

on December 3, 1987. SA2:7a. Nothing further occurred in this case until counsel was

appointed on October 3, 1994 -- 22 months after Milton’s federal sentence was imposed.

Milton did not file his “Motion to Withdraw Guilty Plea” in state court until July 23,

1998, more than five years after the federal sentence was imposed. The only possible

proof of due diligence in challenging this conviction was Milton’s attempt to obtain the

transcript of the guilty plea hearing on September 18, 1989. SA2:7a. Although a request

for a transcript may be a preliminary step toward challenging a conviction, the request by

itself does not show due diligence. Cf. Schlueter v. Varner, 384 F.3d 69, 74 (3d Cir.

2004).

              We need not decide whether Milton diligently challenged his conviction in

No. 88-1670. Because Milton cannot show due diligence in challenging his conviction in

No. 87-2266, he fails to meet the Johnson standard, and his application to file a second or

successive habeas motion must be denied.




                                             6
                             V.

For the reasons given above, we deny the application.
