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<pre> United States Court of Appeals <br> For the First Circuit <br> <br> <br> <br> <br>No. 98-2215 <br> <br> SCOTT N. ROGERS, <br> <br> Petitioner, Appellant, <br> <br> v. <br> <br> UNITED STATES OF AMERICA, <br> <br> Respondent, Appellee. <br> <br> <br> <br> APPEAL FROM THE UNITED STATES DISTRICT COURT <br> <br> FOR THE DISTRICT OF NEW HAMPSHIRE <br> <br> [Hon. Shane Devine, Senior U.S. District Judge] <br> <br> <br> <br> Before <br> <br> Selya, Circuit Judge, <br> <br> Kravitch, Senior Circuit Judge, <br> <br> and Lipez, Circuit Judge. <br> <br> <br> <br> <br> Gordon R. Blakeney, Jr. for appellant. <br> Peter E. Papps, First Assistant United States Attorney, with <br>whom Paul M. Gagnon, United States Attorney, was on brief for <br>appellee. <br> <br> <br> <br> <br>June 17, 1999 <br> <br> <br> <br> <br> <br> LIPEZ, Circuit Judge. Scott N. Rogers appeals from the <br>district court's denial of his motion filed pursuant to 28 U.S.C. <br> 2255 to vacate his sentence and set aside his conviction. The <br>court held that his motion was untimely under the limitations <br>period imposed in the Antiterrorism and Effective Death Penalty Act <br>of 1996 ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214 (Apr. 24, <br>1996), which allows prisoners one year from the date on which their <br>convictions became final to file motions under 2255. As <br>interpreted by the district court (following the model of several <br>other circuit courts of appeals), AEDPA allows prisoners such as <br>Rogers whose convictions became final before AEDPA's effective date <br>to file motions under 2255 within one year of that date. <br>Nonetheless, even on this standard, the court held that Rogers' <br>motion was untimely. Rogers therefore challenges on appeal the <br>validity of this interpretation of AEDPA, allowing filing only <br>within a one year "grace period" from AEDPA's effective date. <br> Prior to denial of the original 2255 motion, Rogers had <br>moved to amend it by adding a claim based on newly discovered facts <br>regarding the execution of his sentence. The court denied this <br>motion to amend as moot in light of its denial of the original <br> 2255 motion. Rogers then moved to have the court reconsider the <br>timeliness issue as to the new claims on the basis that the motion <br>to amend was filed within one year of Rogers' discovery of new <br>facts. The district court denied the motion. Rogers contests this <br>decision as well on appeal. The district court issued a certificate <br>of appealability limited to the sentencing issues. We ordered <br>briefing on all issues, and now affirm. <br>I. Background <br> On April 4, 1989, Manchester, New Hampshire police <br>arrested Scott N. Rogers, a convicted felon who had escaped from <br>the New Hampshire House of Corrections in January of that year. At <br>the time of his capture, Rogers was in constructive possession of <br>a handgun. Rogers was subsequently indicted by a federal grand jury <br>as a convicted felon in possession of a firearm under 18 U.S.C. <br> 922(g)(1), and was convicted on May 20, 1990 after a jury trial. <br>He was sentenced on July 16, 1990 to a mandatory fifteen year <br>sentence as an armed career criminal under 18 U.S.C. 924(e)(1). <br>Throughout the federal proceedings, Rogers was housed in the New <br>Hampshire State Prison. The district court's 1990 judgment has no <br>entry in the space reserved for "recommendations to the Bureau of <br>Prisons," and there is no record that the district court either <br>ordered or recommended that the New Hampshire State Prison should <br>be the place of confinement for Rogers' federal sentence. There is <br>also no indication of the court's intent as to whether the federal <br>sentence should run concurrently with any future sentences for <br>related pending state charges. The district court's judgment and <br>sentence indicates that Rogers was "remanded to the custody of the <br>United States Marshal," but according to the terms of the writ of <br>habeas corpus ad prosequendum, Rogers was to be returned to the <br>warden of the New Hampshire State Prison upon completion of the <br>federal court proceedings. The record does not indicate that Rogers <br>was transferred to federal prison at any point. <br> Rogers' prosecution on related state charges followed. <br>Through new counsel, Rogers pleaded guilty to all remaining state <br>felony charges on August 8, 1990. According to the records of the <br>County Attorney, the New Hampshire Superior Court Judge had <br>indicated to the parties prior to the plea agreement that, in light <br>of the long federal sentence, he would not give any "consecutive <br>time" - that is, he would not sentence Rogers to any time to be <br>served after the federal sentence. Accordingly, the parties agreed <br>that Rogers' sentences for eight of his nine state felony charges <br>should run concurrent to each other and to the federal sentence. <br>Rogers was thus sentenced to 3 to 7 years imprisonment on each of <br>four of the state felony counts and 7 to 15 years imprisonment on <br>each of the other four; all these sentences were to run concurrent <br>to each other and to the federal sentence. Finally, Rogers received <br>a suspended sentence of 7 to 15 years for the remaining charge of <br>theft of a firearm. This suspended sentence was to run consecutive <br>to the 15 year federal sentence. Following these state convictions, <br>Rogers continued to be confined in the New Hampshire State Prison. <br> Rogers filed a timely notice of appeal from the federal <br>convictions, but direct appeal was stayed to allow Rogers to <br>consider the merits of filing a 2255 motion (on ineffective <br>assistance of counsel grounds). Although successor counsel was <br>appointed, a 2255 motion was never filed. We lifted the stay on <br>February 18, 1994 and Rogers proceeded with his direct appeal <br>before this court. We affirmed the federal conviction on December <br>8, 1994, see United States v. Rogers, 41 F.3d 25 (1st Cir. 1994), <br>and Rogers' sentence became final with the Supreme Court's denial <br>of certiorari on June 5, 1995. See 515 U.S. 1126 (June 5, 1995). <br> After another long delay following the denial of <br>certiorari, Rogers filed a 2255 motion in the district court on <br>June 16, 1997. This motion, predicated entirely on ineffective <br>assistance of counsel grounds, sought to have the sentence vacated <br>and the conviction set aside. The government filed a motion to <br>dismiss the 2255 motion as untimely. On May 7, 1998, Rogers filed <br>a motion to amend the 2255 motion (hereinafter the "Motion to <br>Amend") by adding a request "to Correct Sentence Nunc Pro Tunc to <br>Effect Concurrent Running of Sentences by Ordering, or in the <br>Alternative by Recommending, Designation of State Facility as Place <br>of Confinement for Federal Sentence." On May 13, 1998, the district <br>court denied the original 2255 motion as untimely in light of the <br>prevailing judicial interpretation of the AEDPA and denied as moot <br>all other pending motions. Rogers then filed a "Motion to Alter or <br>Amend Judgment under Rule 59(e) or Alternatively for Partial Relief <br>from Judgment under Rule 60(b)." Dkt. 21, May 26, 1998. He argued <br>in his motion that the May 7th Motion to Amend derived "from facts <br>arising within the one-year statute of limitations imposed by the <br>[AEDPA]." Section 2255 provides: <br> A 1-year period of limitation shall apply to a <br> motion under this section. The limitation <br> period shall run from the latest of <br> * * * <br> (4) the date on which the facts supporting the <br> claim or claims presented could have been <br> discovered through the exercise of due <br> diligence. <br> <br>Rogers claimed that he had "newly discovered" that federal <br>authorities intended that his federal sentence should begin running <br>upon completion of his state sentence, i.e. consecutively to the <br>state sentences. Since the government had not filed a responsive <br>pleading, Rogers maintained he had a right to amend the 2255 <br>motion "once as a matter of course" under Fed. R. Civ. P. 15(a) <br>(governing amendment of pleadings), as he attempted to do with his <br>May 7th Motion to Amend. The district court denied this motion on <br>August 13, 1998, on the ground that the 2255 motion as amended <br>would have effectively sought a reduction in an otherwise lawful <br>sentence. <br> Rogers filed a motion in support of his request for a <br>certificate of appealability on October 13, 1998. A limited <br>certificate of appealability issued from the district court on <br>October 28, 1998. The court's order stated that Rogers was "not <br>entitled to a [certificate of appealability] on the issue of the <br>timeliness of filing of his initial section 2255 petition," but <br>that he was entitled to a certificate of appealability "limited to <br>the issue of whether his federal sentence should be adjusted to run <br>concurrently rather than consecutively" with the state sentences. <br>We ordered all issues briefed, irrespective of the certificate of <br>appealability. See Order (1st Cir. Nov. 30, 1998). <br> <br>II. Dismissal of the initial 2255 motion <br> On April 24, 1996, President Clinton signed into law the <br>AEDPA, which instituted a limitation period for filing motions <br>under 28 U.S.C. 2255, as follows: <br> A 1-year period of limitation shall <br> apply to a motion under this section. The <br> limitation period shall run from the latest <br> of <br> (1) the date on which the judgment of <br> conviction becomes final; <br> (2) the date on which the impediment to <br> making a motion created by governmental action <br> in violation of the Constitution or laws of <br> the United States is removed, if the movant <br> was prevented from making a motion by such <br> governmental action; <br> (3) the date on which the right <br> asserted was initially recognized by the <br> Supreme Court, if that right has been newly <br> recognized by the Supreme Court and made <br> retroactively applicable to cases on <br> collateral review; or <br> (4) the date on which the facts <br> supporting the claim or claims presented could <br> have been discovered through the exercise of <br> due diligence. <br> <br>Rogers' conviction became final on June 5, 1995. In dismissing <br>Rogers' 2255 motion, the district court stated that AEDPA <br>"clearly applies here, where the [ 2255] motion was not filed <br>until June 16, 1997," more than a year after the date on which <br>Rogers' judgment of conviction became final. The court continued: <br>"The date of filing is beyond the 12-month grace period ([from the <br>effective date of AEDPA, April 24, 1996] to April 24, 1997), which <br>has been generally granted in cases of this type." See Order, Dkt. <br>19, No. 97-300-SD, at 3 (D.N.H. May 13, 1998). The court's <br>reference to the general adoption of a grace period was correct. <br>Reasoning that it is impermissible to bar the filing of a 2255 <br>motion (or a habeas petition under 28 U.S.C. 2254, governed by <br>the similar limitations provisions AEDPA added to 28 U.S.C. <br> 2244(d)(1)) before the claimant has had a reasonable opportunity <br>to bring it, all of the circuits which have addressed the issue <br>have now concluded that a one year grace period (running from the <br>effective date of AEDPA) in which to file a 2255 motion (or a <br>petition under 2254) constitutes a reasonable opportunity. <br> We now join those circuits by holding that the district <br>court properly applied a one-year grace period in reviewing the <br>timeliness of Rogers' 2255 motion. There are compelling reasons <br>for doing so: <br> When application of a new limitation period <br> would wholly eliminate claims for substantive <br> rights or remedial actions considered timely <br> under the old law, the application is <br> "impermissibly retroactive." . . . The <br> legislature cannot extinguish an existing <br> cause of action by enacting a new limitation <br> period without first providing a reasonable <br> time after the effective date of the new <br> limitation period in which to initiate the <br> action. Indeed, the Supreme Court has stated <br> that newly-enacted "statutes of limitations <br> must allow a reasonable time after they take <br> effect for the commencement of suits upon <br> existing causes of action." Block v. North <br> Dakota, 461 U.S. 273, 286 n.23 . . . (1983) <br> (internal quotation marks omitted). <br> <br>Brown v. Angelone, 150 F.3d 370, 373 (4th Cir. 1998). Where a <br>shortened limitations period would bar previously-accrued claims, <br>and where the legislature itself has not specified a grace period, <br>courts traditionally have provided that a "reasonable time" shall <br>be the shorter of: (1) the original limitation period, commencing <br>at the time the action accrued, or (2) the new, shortened <br>limitation period, commencing from the date the statute became <br>effective. See Flores, 135 F.3d at 1002-06 (applying such a <br>standard in holding that one year is "reasonable period" for <br>purposes of 2255); Kelly v. Burlington Northern R.R., 896 F.2d <br>1194, 1199 (9th Cir. 1990) (labor context); Hanner v. Mississippi, <br>833 F.2d 55, 58 (5th Cir. 1987) (section 1983 context); Usher v. <br>City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987) (section <br>1983 context); Anton v. Lehpamer, 787 F.2d 1141, 1146 (7th Cir. <br>1986) (section 1983 context); see also Sohn v. Waterson, 84 U.S. <br>(17 Wall.) 596 (1873) (applying new limitations period, running <br>from effective date, to previously-accrued claims). <br> Since there was formerly no time limitation on filing <br>under 2255, "application of this approach results in the holding <br>that petitioners attacking convictions or sentences which became <br>final prior to the AEDPA's effective date will be accorded the one- <br>year post-AEDPA period, commencing on [AEDPA's] effective date, <br>within which to file for section 2255 relief." Flores, 135 F.3d at <br>1006. All the circuits which have addressed the issue have now held <br>that one year is a "reasonable time" after the effective date of <br>AEDPA for allowing suits to commence upon pre-existing causes of <br>action. See, e.g., Brown, 150 F.3d at 375 (holding that the <br>"reasonable time" required and the one-year statutory period <br>"coalesce" (citing Lindh v. Murphy, 96 F.3d 856, 866 (7th Cir. <br>1996) (en banc))); Ross v. Artuz, 150 F.3d 97, 101-02 (2d Cir. <br>1998) (citing possibility of prisoner reliance on Lindh, <br>statistical evidence of high rate of filings immediately prior to <br>April 24, 1997, Department of Justice's "official position" that it <br>would not seek to enforce new limitations period until April 24, <br>1997, and desirability of announcing bright-line rule setting a <br>fixed period of time for petitioners to develop evidence and legal <br>theories, in rejecting ad hoc "reasonable time" rule put forth in <br>dicta in Peterson v. Demskie, 107 F.3d 92, 93 (2d Cir. 1997)). <br>Therefore, for causes of action accruing before AEDPA's effective <br>date, the grace period for filing a 2255 motion ended on April <br>24, 1997, well before Rogers filed his original 2255 motion on <br>June 16, 1997. <br> <br>III. Denial of the Motion to Amend based on newly discovered <br>information <br> Rogers has a separate argument for preserving the claims <br>raised in his Motion to Amend the original 2255 motion: namely, <br>his contention that these claims, based on newly discovered facts, <br>are governed by the one year limitation period of AEDPA measured <br>from the time of first possible discovery in the exercise of due <br>diligence: <br> A 1-year period of limitation shall <br> apply to a motion under this section. The <br> limitation period shall run from the latest <br> of <br> * * * <br> (4) the date on which the facts <br> supporting the claim or claims presented could <br> have been discovered through the exercise of <br> due diligence. <br> <br>28 U.S.C. 2255. In his motion to amend the court's May 13, 1998 <br>judgment, Rogers stated that his May 7th "Motion to Amend does not <br>arise from his original conviction, nor (primarily) from his <br>sentence, but from facts arising within the one-year statute of <br>limitations imposed by" AEDPA. Specifically, Rogers claims that he <br>only recently was informed by the United States Marshal's Office <br>that, during his time in the New Hampshire State Prison, Rogers was <br>"considered to be in State of New Hampshire custody, and [would] <br>not be processed for service of his federal sentence until his <br>parole by state authorities." Motion to Amend, 12 at 6. Rogers <br>does not indicate when this fact became known to him (presumably he <br>claims he learned it between his June 16, 1997 original 2255 <br>motion and the May 7, 1998 Motion to Amend), and, regardless of <br>when his actual discovery occurred, Rogers gives no indication that <br>this information could not have been discovered through the <br>exercise of due diligence at some earlier point in time. <br> We need not resolve the due diligence/timeliness issue to <br>dispose of the claims raised in the Motion to Amend. Instead, we <br>assume arguendo that Rogers could not have discovered through the <br>exercise of due diligence that his sentences would run <br>consecutively until less than a year prior to the filing of his <br>Motion to Amend. We also assume (without deciding) the correctness <br>of his claim that he was entitled to amend his 2255 motion by <br>right. Even so, the new claims in Rogers' Motion to Amend are <br>improperly brought. He first claims that the district court should <br>have ordered or recommended designation of the state prison as the <br>place of confinement for the federal sentence imposed on July 16, <br>1990; second, assuming the federal sentence properly commenced only <br>on his release from New Hampshire State Prison, he claims credit <br>for time already served in state prison against the federal <br>sentence under 18 U.S.C. 3585(b)(2). We analyze these claims in <br>turn. <br> <br>A. Ordering or recommending designation of the state prison as the <br>place of confinement for the federal sentence <br> Rogers' Motion to Amend asks that the district court make <br>a "correction to its sentence whereby the court orders, or in the <br>alternative recommends that [New Hampshire State Prison] be <br>designated as the place of confinement for [Rogers'] federal <br>sentence." Motion to Amend, at 26. There is authority for the <br>notion that the Bureau of Prisons may make such a designation in <br>nunc pro tunc fashion where the federal sentencing court is silent <br>as to whether a federal sentence should run concurrently with "a <br>not-yet-imposed state sentence." McCarthy v. Doe, 146 F.3d 118, 119 <br>(2d Cir. 1998); see also Barden v. Keohane, 921 F.2d 476, 483 (3d <br>Cir. 1991) (Bureau has authority to make such a designation). <br>Therefore, prisoners similarly situated to Rogers may request that <br>the Bureau of Prisons make such a designation. On similar facts, <br>other courts of appeals have held that the Bureau must consider <br>such a request. See id. at 478. Once administrative remedies under <br>the Bureau of Prisons' Administrative Remedies Program are <br>exhausted, see 28 C.F.R. 542.10-542.16, prisoners may then seek <br>judicial review of the request for designation by filing a habeas <br>petition under 28 U.S.C. 2241. See United States v. Pineyro, 112 <br>F.3d 43, 45-46 (2d Cir. 1997) (prisoner must exhaust administrative <br>remedies before seeking review of designation of facility); Barden, <br>921 F.2d at 478-79 (petition under 2241 is proper mode of <br>challenge to Bureau of Prisons' refusal to consider designating <br>state prison as place of confinement); United States v. Jalili, 925 <br>F.2d 889, 893 (6th Cir. 1991) (challenge to designation of facility <br>properly cognizable under 2241). Here, Rogers has failed to raise <br>the matter before the Bureau of Prisons in the first instance. Even <br>if he had exhausted administrative remedies, his 2255 motion <br>would not be the appropriate vehicle for a challenge to an <br>administrative denial of a request for designation of place of <br>confinement. See id. (district court lacked jurisdiction under <br> 2255 to challenge Bureau of Prisons' designation of facility for <br>otherwise lawful sentence). <br> <br>B. Credit for time under 18 U.S.C. 3585(b)(2) <br> Assuming that his federal sentence does begin running <br>upon his parole from state prison, Rogers nonetheless claims that <br>the district court has power to award him credit for time served in <br>state prison under 18 U.S.C. 3585(b)(2). See Motion to Amend, <br>22, 28. Section 3585 reads as follows: <br> 3585. Calculation of a term of imprisonment <br> (a) Commencement of sentence.--A <br> sentence to a term of imprisonment commences <br> on the date the defendant is received in <br> custody awaiting transportation to, or arrives <br> voluntarily to commence service of sentence <br> at, the official detention facility at which <br> the sentence is to be served. <br> (b) Credit for prior custody.--A <br> defendant shall be given credit toward the <br> service of a term of imprisonment for any time <br> he has spent in official detention prior to <br> the date the sentence commences-- <br> (1) as a result of the offense for <br> which the sentence was imposed; or <br> (2) as a result of any other <br> charge for which the defendant was <br> arrested after the commission of the <br> offense for which the sentence was <br> imposed; <br> that has not been credited against another <br> sentence. <br> <br>Rogers' arrest for the state charges was subsequent to his <br>possession of the firearm, the offense for which his federal <br>sentence was imposed. Arguably, then, he would qualify for credit <br>for prior custody under the literal terms of 18 U.S.C. <br> 3585(b)(2). However, it is well-established that a request for <br>credit for prior custody under 18 U.S.C. 3585(b)(2) must be made, <br>in the first instance, to the Attorney General through the Bureau <br>of Prisons upon imprisonment after sentencing. See United States v. <br>Wilson, 503 U.S. 329, 334 (1992) ("[Section] 3585(b) does not <br>authorize a district court to compute the [presentence detention] <br>credit at sentencing."). Once administrative remedies are <br>exhausted, see 28 C.F.R. 542.10-542.16, prisoners may then seek <br>judicial review of any jail-time credit determination, see Wilson, <br>503 U.S. at 335, by filing a habeas petition under 28 U.S.C. <br> 2241. See McClain v. Bureau of Prisons, 9 F.3d 503, 505 (6th <br>Cir. 1993). Rogers has not exhausted his administrative remedies, <br>and even if he had, his 2255 motion would once again not be the <br>appropriate vehicle for a challenge to an administrative denial of <br>credit for time served. <br> <br> We therefore conclude that the district court did not err <br>in dismissing Rogers' 2255 motion as untimely, and in dismissing <br>his Motion to Amend and his Motion to Amend Judgment. <br> Affirmed.</pre>
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