214 F.3d 199 (D.C. Cir. 2000)
United States of America, Appelleev.Kendrick  Albert Cicero, a/k/a Kenny, a/k/a Albert Kenrich  Cicero,a/k/a Paul Haynes,a/k/a Diamond, AppellantUnited States of America, Appelleev.Ian A. Thorne, Appellant
No. 99-3041, No. 99-3029
United States Court of AppealsFOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 2, 2000Decided June 16, 2000

Appeal from the United States District Court for the District of Columbia(No. 91cr00633-01)
Appeal from the United States District Court for the District of Columbia(No. 90cr00422-02)(No. 91cr00633-01)
A. J. Kramer, Federal Public Defender, argued the cause  for appellants.  With him on the briefs was Evelina J.  Norwinski, Assistant Federal Public Defender.
John R. Fisher, Assistant U.S. Attorney, argued the cause  for appellee.  With him on the briefs was Wilma A. Lewis,  U.S. Attorney. Mary-Patrice Brown, Assistant U.S. Attorney,  entered an appearance.
Before:  Edwards, Chief Judge, Ginsburg and Sentelle,  Circuit Judges.
Opinion for the Court filed by Circuit Judge Ginsburg.
Ginsburg, Circuit Judge:


1
Kendrick Cicero and Ian Thorne  filed separate appeals presenting the same questions:  Must a  prisoner whose conviction became final before April 24,  1996--the effective date of the Antiterrorism and Effective  Death Penalty Act of 1996--raise any challenge to his conviction or to his sentence, pursuant to 28 U.S.C.  2255, within  one year of the effective date of the Act?  If so, is that time  limitation subject to equitable tolling?  And if it is, then is either appellant entitled to such tolling based upon the equity  of his case?


2
We hold first that a prisoner whose conviction became final  prior to April 24, 1996 must have filed his  2255 motion  within one year of that date.  Further, we hold that regardless whether this limitation is subject to equitable tolling--a  question we need not decide today--the cases before us do  not warrant such relief.

I. Background

3
Prior to the effective date of the AEDPA a prisoner could  challenge his conviction or sentence as a violation of the  Constitution of the United States by filing a motion under 28  U.S.C.  2255 at almost any time.  See Mickens v. United  States, 148 F.3d 145, 146 (2d Cir. 1998).  As amended by that  Act, paragraph six of  2255 now limits the time in which a  prisoner may bring such a motion as follows:


4
A 1-year period of limitation shall apply to a motion under this section. The limitation period shall run from the latest of


5
1)  the date on which the judgment of conviction be-comes 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;


6
(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


7
(4)  the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.


8
Messrs. Cicero and Thorne ask us to excuse the tardiness  of their motions on the ground that they were impeded from  timely filing their  2255 motions by government actions  beyond their control.  They do not, however, claim that the Government acted unlawfully.

A. Cicero's Case

9
Mr. Cicero was convicted in 1992 of possession with intent  to distribute and of conspiracy to distribute cocaine base, in  violation of 21 U.S.C.   841 and 846.  He received concurrent sentences of 240 months of incarceration and five years  of supervised release, as well as a fine and a special assessment.  Mr. Cicero appealed and this court affirmed his  convictions.  See United States v. Cicero, 22 F.3d 1156 (D.C.  Cir.), cert. denied, 513 U.S. 905 (1994).


10
Mr. Cicero states that he began working on a motion  challenging his conviction and sentence in 1996.  His work  was interrupted several times that year, however.  In October 1996, Mr. Cicero was stabbed by another inmate;  he  spent five days in the hospital and was then placed in  protective segregation for an unspecified period.  During this  time, Mr. Cicero had access to the prison library for only one  hour approximately every three weeks.  On April 14, 1997, prison officials packed Mr. Cicero's possessions, including his  legal papers, in anticipation of his transfer to a different  facility.  He did not arrive there and regain his possessions  until June 20.


11
Mr. Cicero signed and mailed his  2255 motion on July 24,  1997.  The district court clerk's office received it on July 28.The district court dismissed Mr. Cicero's motion as untimely  because he had failed to file it before expiration of the one  year grace period running from the effective date of the  AEDPA.  Mr. Cicero appeals, claiming he was prevented  from timely filing by acts of the Government, that is, of prison  officials, beyond his control.

B.Thorne's Case

12
Mr. Thorne was convicted in 1991 of possession with intent  to distribute and of conspiracy to distribute and to possess  with intent to distribute cocaine base, in violation of 21 U.S.C.    841 and 846.  He was sentenced to 151 months of incarceration and five years of supervised release, and on appeal  we affirmed his conviction.  See United States v. Thorne, 997  F.2d 1504 (D.C. Cir. 1993).


13
Mr. Thorne states that in November 1995, after several  unsuccessful attempts to obtain from his attorney discovery  materials and other documents related to his case, he petitioned the district court to compel their release.  In March  1996 the district court ordered Mr. Thorne's attorney to  provide him with a copy of his case file, and Mr. Thorne  submitted a motion seeking the transcript of argument in the  appeal of his codefendant.  In December 1996 the court  denied Mr. Thorne's request for the transcript, reasoning that  the appeal was a matter of public record and Mr. Thorne had  not demonstrated that he could not otherwise obtain a copy of  the transcript.


14
Mr. Thorne further states that he had been working on his   2255 motion with a "jailhouse lawyer" named Muhammad  Al'Askari, and that their progress washalted when Mr.  Al'Askari was placed in segregation some time prior to April  24, 1997.  Mr. Thorne's legal papers were packed and stored  with Mr. Al'Askari's possessions during the period of his  segregation, which ended early in June.  Mr. Thorne gave his   2255 motion to prison officials for mailing on June 11 and  the motion was filed in the district court on June 24.  The  district court dismissed Mr. Thorne's motion as untimely  because it was submitted more than one year after the  effective date of the AEDPA.  Mr. Thorne requested reconsideration and asked the court equitably to toll the time  limitation.  The court declined, stating that although the time  limitation in  2255 is subject to equitable tolling, Mr. Thorne  had not alleged facts that would warrant tolling in his case.On appeal Mr. Thorne argues that the time limitation in   2255 is subject to equitable tolling and that tolling is  warranted in his case.

II. Analysis

15
We consider first application of the time limitation in   2255 to a prisoner whose conviction became final before the  effective date of the AEDPA.  We address this issue de novo.  See Moore v. United States, 173 F.3d 1131, 1133 (8th Cir.  1999).  Second, we consider whether, assuming the time limit in  2255 is subject to equitable tolling, it should be tolled in  the cases before us.

A.  One Year Grace Period

16
We need not linger long over the first issue.  The parties  agree, as do our sister Circuits, that a prisoner whose conviction became final before the AEDPA was enacted has a one  year grace period from the date of enactment in which to file  a motion under  2255.  See Rogers v. United States, 180  F.3d 349, 354 (1st Cir. 1999);  Mickens v. United States, 148  F.3d 145, 148 (2d Cir. 1998);  Burns v. Morton, 134 F.3d 109,  112 (3d Cir. 1998);  Brown v. Angelone, 150 F.3d 370, 374-75  (4th Cir. 1998);  United States v. Flores, 135 F.3d 1000, 1006  (5th Cir. 1998);  Brown v. O'Dea, 187 F.3d 572, 576-77 (6th  Cir. 1999);  O'Connor v. United States, 133 F.3d 548, 550 (7th  Cir. 1998);  Moore v. United States, 173 F.3d 1131, 1135 (8th  Cir. 1999);  United States v. Valdez, 195 F.3d 544, 546 (9th  Cir. 1999);  United States v. Simmonds, 111 F.3d 737, 746  (10th Cir. 1997);  Goodman v. United States, 151 F.3d 1335,  1337 (11th Cir. 1998).  This unanimity of view reflects, no  doubt, that without such a grace period a prisoner convicted  before the effective date of the AEDPA, when there was no  time limitation for filing a  2255 motion, would be denied a  reasonable time within which to bring a claim before losing  the right to do so.  See Flores, 135 F.3d at 1003-06.  In any  event, the grace period expired on April 24, 1997.  See  Rogers, 180 F.3d at 355;  Mickens, 148 F.3d at 148;  Villegas  v. Johnson, 184 F.3d 467, 469 & n.1 (5th Cir. 1999);  Towns v.  United States, 190 F.3d 468, 469 (6th Cir. 1999);  Moore, 173  F.3d at 1135;  Simmonds, 111 F.3d at 746;  but cf. Morton,  134 F.3d at 112 (grace period expires April 23, 1997);  Angelone, 150 F.3d at 375-76 (same);  O'Connor, 133 F.3d at 550  (same);  Valdez, 195 F.3d at 546 (same);  Goodman, 151 F.3d  at 1337 (same);  United States v. Jones, 963 F. Supp. 32, 3435 (D.D.C. 1997) (same).


17
Although Messrs. Cicero and Thorne were entitled to the  benefit of the grace period, neither appellant filed his  2255  motion within the period allowed.  Their motions will be deemed timely, therefore, only if that time limitation may be  equitably tolled in their cases.

B. Equitable Tolling

18
Unless the Congress has provided otherwise, courts generally apply a rebuttable presumption that a statute of limitation is subject to equitable tolling.  See Irwin v. Department  of Veterans Affairs, 498 U.S. 89, 95-96 (1990).  Although  most of the circuits that have considered the questions have  concluded that  2255 is a statute oflimitation and that it is  subject to equitable tolling, see Kapral v. United States, 166 F.3d 565, 575 (3d Cir. 1999);  Harris v. Hutchinson, 209 F.3d 325, 330 (4th Cir. 2000);  Fisher v. Johnson, 174 F.3d 710, 713 (5th Cir. 1999);Calderon v. United States Dist. Court (Calderon), 128 F.3d  1283, 1289 (9th Cir. 1997);  Miller v. Marr, 141 F.3d 976, 978  (10th Cir. 1998);  Sandvik v. United States, 177 F.3d 1269,  1271 (11th Cir. 1999);  cf. also Moore, 173 F.3d at 1134  (holding  2255 is statute of limitation in case where equitable tolling was not at issue), the Seventh Circuit has questioned this conclusion even while applying it to a petition filed  under  2254, see Taliani v. Chrans, 189 F.3d 597, 598 (7th  Cir. 1999) (in view of "express tolling provisions [of 28 U.S.C.   2244(d)(1)] it is unclear what room remains for importing  the judge-made doctrine of equitable tolling"), and at least  one district court has disagreed entirely, see Giles v. United  States, 6 F. Supp. 2d 648, 649 (E.D. Mich. 1998) (concluding  that  2255 is a limit on jurisdiction of court, not a statute of  limitations, and therefore is not subject to equitable tolling).*


19
The circuits holding that  2255 is subject to equitable  tolling have announced some general principles for determining whether the facts in a particular case justify tolling the  limitation.  Equitable tolling, which is to be employed "only sparingly" in any event, see Irwin, 498 U.S. at 96, has been  applied in the context of the AEDPA only if " 'extraordinary  circumstances' beyond a prisoner's control make it impossible  to file a petition on time."  See Calderon, 128 F.3d at 1288. In  the last-quoted case the court equitably tolled the time limit  in  2244(d)(1) because the prisoner's lead counsel had withdrawn from the representation after accepting employment in  another state and his successor as counsel was unable to use  his work product.  See also Miles v. Prunty, 187 F.3d 1104,  1107 (9th Cir. 1999) (equitably tolling time limit where prisoner submitted petition for mailing five days before deadline  and petition was returned to him after deadline had passed).


20
The Fifth Circuit has suggested several circumstances in  which equitable tolling is not warranted.  The prisoner's  ignorance of the law or unfamiliarity with the legal process  will not excuse his untimely filing, nor will a lack of representation during the applicable filing period.  See Fisher, 174  F.3d at 714-15;  Turner v. Johnson, 177 F.3d 390, 392 (5th  Cir. 1999).  In addition, the court will not relieve a petitioner  who has sat upon his rights. See Coleman v. Johnson, 184  F.3d 398, 402-03 (5th Cir. 1999).


21
As it turns out, we need not decide today whether  2255 is  subject to equitable tolling because neither Mr. Cicero nor Mr. Thorne has alleged such "extraordinary circumstances"  as to warrant equitable tolling in any event.

1.  Cicero's Case

22
Mr. Cicero claims that he first learned of the one year limitation in the AEDPA in October 1996 when he filed a   2255 motion while he was in protective segregation.  He  continued work on the  2255 motion he had begun earlier  that year, although he was hampered by reducedaccess to  the prison law library due to his segregation.  His work was interrupted from April 14 until sometime in June 1997 while  he was separated from his legal papers during a transfer  between prisons--an interruption caused by prison officials  whose conduct was beyond his control.  Mr. Cicero concedes that his transfer and incidental separation from his papers  were not unlawful, and therefore do not implicate  2255  p 6(2).  He asserts, nonetheless, that the time to file should  be tolled because the Government's action--rather than his  own inaction--caused him to miss the filing deadline.


23
Mr. Cicero's conviction became final in 1994.  He had from  then until April 24, 1997 to prepare a  2255 motion.  Although he has identified several impediments to his work on  the motion during the last six months of the grace period, Mr.  Cicero has not suggested that he was prevented from working  on the motion at any time before that period.  In Miller, 141  F.3d at 978, the court considered whether to toll the time  limitation in  2244(d) for a state prisoner who was convicted  in 1993 and in 1995 was transferred to a private correctional  institution that did not have the law books relevant to his  case.  It was not until the prisoner was returned to a state  institution, after the one year grace period had expired, that  he learned of the time limitation.  Id.  Because the prisoner's  lack of access to legal materials from 1995 to 1997 "[did] not  explain [his] lack of pursuit of his federal claims before the  transfer," the Tenth Circuit did not toll the time limitation.


24
Mr. Cicero, too, had ample time in which to complete his  motion.  Although his work may have been interrupted during the final months of the grace period, we cannot say that Mr. Cicero presents such "extraordinary circumstances" as to  warrant equitable tolling.

2.  Thorne's Case

25
Mr. Thorne also argues that his  2255 motion was untimely for reasons beyond his control.  He began work on his  motion in 1995;  his work was delayed in part by the district  court's lengthy consideration of his requests for documents,  the last of which the court resolved in December 1996.  In  the spring of 1997, however, Mr. Thorne unfortunately gave  his legal papers to a jailhouse lawyer whose placement in  segregation separated Mr. Thorne and his papers from some  time before the expiration of the one year grace period until  after the filing deadline had passed.


26
The district court declined to toll the limitation for Mr.  Thorne because "[t]here has been no showing here that the  defendant diligently pursued the filing of his motion."  The  Court explained its reasoning as follows:


27
It is unclear when [Mr. Al'Askari] was placed in administrative segregation.  For example, [Mr. Al'Askari]may have been placed in administrative segregation just prior to [the deadline], or shortly before that date.  It is not clear what, if any, action the defendant took to have the papers returned to him.  Moreover, the defendant has not stated why he did not request an extension of time from the Court within which to file his motion.


28
Mr. Thorne acknowledges that he never asked the prison  officials to return his legal documents, but he claims that such  a request would have been futile because one inmate was not  permitted to retrieve the property of another after it had  been packed up due to a segregation order.  He did not file a  motion for an extension of time, he says, because he was  unaware that he could do so.  Mr. Thorne argues that before  dismissing his motion as untimely the district court should  have sought additional information regarding what steps he  might have taken to regain possession of his papers.  He asks  us either to toll the time limitation or at least to remand his  case to the district court for further factfinding.


29
Mr. Thorne has not given us sufficient reason to take either step.  He was notprejudiced by the district court's delay in  deciding his requests for documents, as the court ruled upon  his motions well in advance of the deadline for filing his   2255 motion.  Further, he entrusted Mr. Al'Askari with his  legal documents at his peril.  See, e.g., Paige v. United States,  171 F.3d 559, 561 (8th Cir. 1999) (equitable tolling not available to prisoner whose petition, prepared by an inmate in a  different prison, was delayed in mail);  Henderson v. Johnson,  1 F. Supp. 2d 650, 655 (N.D. Tex. 1998) (equitable tolling  denied to prisoner to whom fellow inmate had fraudulently  represented that he had timely filed petition for him).  We  agree with the district court, therefore, that Mr. Thorne has  not alleged any circumstances surrounding the untimeliness  of his  2255 motion so compelling as to warrant tolling the  time limit.

III. Summary and Conclusion

30
Prisoners whose convictions became final prior to the effective date of the AEDPA had until April 24, 1997 to file a  motion for relief under  2255.  We do not decide whether  this limitation is generally subject to equitable tolling because  even if it is we would not toll the limitation in either of the  cases before us.  The judgments of the district court are  therefore


31
Affirmed.



Notes:


*
 Some of the cited cases consider whether a court may equitably  toll the time limitation in 28 U.S.C.  2254, which applies to post conviction motions filed by state prisoners. Courts have generally  applied the same analysis to the time limitations in  2254 and   2255.  See Flores, 135 F.3d at 1002 n.7 ("Because of the similarity  of the actions under sections 2254 and 2255, they have traditionally  been read in pari materia where the context does not indicate that  would be improper");  but cf. Hoggro v. Boone, 150 F.3d 1223, 1226  (10th Cir. 1998) (noting that unlike  2255,  2254 is tolled for time  spent pursuing post-conviction relief in state court, and suggesting  that "the apparently firm deadline of April 24, 1997, in [United  States v. Simmonds, 111 F.3d 737 (10th Cir. 1997)] is appropriate  only for motions ... under  2255");  Paige v. United States, 171  F.3d 559, 561 (8th Cir. 1999) (citing Hoggro for proposition that  equitable tolling is available in  2254 cases but not in  2255  cases).


