                                                                    [DO NOT PUBLISH]


                  IN THE UNITED STATES COURT OF APPEALS
                                                               FILED
                             FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                              ________________________  ELEVENTH CIRCUIT
                                                            JUNE 14, 2006
                                                         THOMAS K. KAHN
                                    No. 03-15577
                                                              CLERK
                               ________________________

                       D. C. Docket No. 02-01475-CV-T-23-MAP

EDUARDO RODRIGUEZ,



                                                                         Petitioner-Appellant,

       versus

UNITED STATES OF AMERICA,

                                                                       Respondent-Appellee.


                               ________________________

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

                                        (June 14, 2006)

Before ANDERSON, FAY and SILER*, Circuit Judges.

___________________________________
       *Honorable Eugene E. Siler, Jr., United States Circuit Judge for the Sixth Circuit, sitting
by designation.
PER CURIAM:

       This is an appeal from the final order of the district court denying a motion

filed by appellant, Eduardo Rodriguez (“Rodriguez”) pursuant to 28 U.S.C. §2255.

Rodriguez sought to reduce his sentence based on the vacatur of an underlying

state court claim that was used to enhance his federal sentence. The court held that

Rodriguez filed the §2255 motion after the one-year limitations period had

expired. Specifically, the court determined that Rodriguez did not file a timely

petition under the statute because with due diligence he should have discovered

the “facts supporting the claim or claims presented” well before he filed the §2255

motion.1 The central issue, therefore, is whether or not Rodriguez exercised due

diligence in seeking review of his underlying state conviction. We conclude that

because the relief sought was not available to Rodriguez under state law prior to



       1
         28 U.S.C. §2255 provides that a motion to vacate a sentence must be filed within one
year of the latest of the following events:

       (1) the date on which the judgement 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.


                                                2
the Florida Supreme Court’s decision in Peart v. State, 756 So.2d 42 (Fla. 2000),2

he acted with diligence by filing a timely petition after Peart. We reverse the

district court’s ruling.

                                        I. Background

       In January of 1995, Rodriguez was convicted of conspiring to possess

cocaine with intent to distribute in violation of 21 U.S.C. § 846, and possessing

cocaine with intent to distribute in violation of 21 U.S.C. § 841. On April 21,

1995, the court sentenced Rodriguez to 220 months imprisonment. For sentencing

purposes, Rodriguez was considered a career criminal based on two prior state

court convictions, in 1986 and 1991. The district court entered its final order on

May 1, 1995.

       On March 2, 1997, Rodriguez filed a motion in state court pursuant to 28

U.S.C. § 2254, challenging his 1991 conviction. The motion was denied. On or

about April 15, 1997, Rodriguez filed a motion in state court pursuant to Florida

Rule of Criminal Procedure 3.850, again challenging his 1991 conviction. The

motion was denied. Rodriguez then petitioned for a writ of coram nobis, which

was also denied.


       2
          Peart held that “defendants who gained knowledge of the threat of deportation prior to
the filing date of this decision shall have two years from this decision to file a rule 3.850
motion.”

                                                3
       On June 12, 2000, approximately two months after the Florida Supreme

Court decided Peart on April 13, 2000, Rodriguez filed another Rule 3.850 motion

for relief from his 1991 conviction. The state court vacated the 1991 conviction on

January 14, 2002.3

       On July 31, 2002, Rodriguez filed a motion in the district court pursuant to

28 U.S.C. §2255 requesting that the court resentence him without considering his

vacated 1991 conviction. The court denied the motion as time-barred. Specifically,

the court concluded that the one-year statute of limitations started to run on the

date “when due diligence should have disclosed the facts supporting the

underlying claim, not when the challenged state conviction was vacated.”

       Rodriguez appealed, and after this Court declined to issue a certificate of

appealability, he petitioned for a writ of certiorari to the United States Supreme

Court. The Supreme Court granted the writ, vacated the judgment, and remanded

to this court for reconsideration in light of Johnson v. United States, 125 S.Ct.

1571 (2005). We then granted Rodriguez a certificate of appealability in an order

dated September 13, 2005.

                                        II. Discussion


       3
         The state court cited Ascenio v. State, 754 So.2d 749 (Fla. 2d DCA 2000) as a basis for
finding that Rodriguez was entitled to withdraw his plea. There is no question that the law of
Florida changed when the state supreme court rendered its opinion in Peart.

                                               4
      In reviewing the district court’s denial of a 28 U.S.C. § 2255 motion, we

review legal issues de novo and factual findings for clear error. Lynn v. United

States, 365 F.3d 1225, 1232, (11th Cir. 2004), cert. denied, 543 U.S. 891, 125

S.Ct. 167 (2004). The key inquiry in this case is whether or not the appellant

exercised due diligence under Johnson v. United States, 544 U.S. 295, 125 S.Ct.

1571 (2005). Under Johnson, a prisoner may file a §2255 motion up to one year

from the date on which he received notice of the order vacating his prior state

conviction. See Johnson, 544 U.S. at 298, 125 S.Ct. at 1575. However, the

prisoner is only entitled to the new one-year limitations period if he exercised due

diligence in seeking to overturn his prior conviction. Id. In Johnson, the court held

that the prisoner’s delay in seeking to overturn his state conviction from the time

of his federal sentencing was not diligent. Id. The court expressed doubt as to

whether even a twenty-one month delay would be considered diligent under this

standard. Id.

      Although the appellant in this case comes forward with a twenty-two month

delay, his situation is distinct from that in Johnson. At the time of his federal

sentencing, the appellant was already barred from collateral relief for his state

conviction because the statute of limitations under Rule 3.850 had run. It was not

until the decision in Peart that the possibility of collateral relief became available


                                           5
to Rodriguez due to the established change in the statute of limitations and its

application to his situation. Thus, Rodriguez’s actions prior to Peart are irrelevant

to the diligence inquiry because he could not have obtained the relief sought under

Florida law prior to that time. The law does not require acts that would be futile.

As there is no dispute regarding the timeliness of Rodriguez’s actions following

the Peart decision, we find that he acted with due diligence in seeking relief from

his state conviction.

                                  III. Conclusion

      We conclude that the appellant in this case is entitled to the one-year statute

of limitations period established under Johnson v. United States because he acted

with diligence in seeking post-conviction relief as soon as state law made it

possible for him to do so. To hold otherwise would require prisoners to file

frivolous petitions when established law is clearly set against them. We therefore

reverse the district court’s ruling, vacate the order of dismissal and remand for

consideration on the merits.



REVERSED, VACATED and REMANDED.




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