Lead Opinion
Raymond Outler appeals the district court’s order denying as untimely his motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. On appeal, Outler argues that the Supreme Court’s decision in Castro v. United States,
I. FACTS
On April 13, 1993, a jury convicted Outler of armed bank robbery and possession of a firearm by a convicted felon. The district court sentenced him to 240 months’ imprisonment. Outler appealed his conviction to this Court, which affirmed his sentence and conviction in United States v. Outler,
In July 1995, Outler filed a motion for a new trial pursuant to Fed.R.Crim.P. 33. In this motion, Outler argued that he found new evidence, that his attorney gave ineffective assistance of counsel, that there was prosecutorial misconduct, that there were Rule 43 and Confrontation Clause violations, that the district court committed error during the jury instructions, and that it was a sham prosecution. In December 1995, the district court treated the Rule 33 motion in part as a motion for new trial, and the remainder of the claims as a § 2255 motion, and denied all of the claims on the merits. Outler unsuccessfully appealed to this Court, Outler v. United States, No. 96-8276,
Then, on March 16, 1999, Outler turned his attention to the Fourth Circuit and filed a § 2241 petition with the Southern District of West Virginia. While it was pending, Outler filed a motion for mandamus. When both were denied, Outler appealed to the Fourth Circuit, which affirmed on June 13, 2002. Outler moved for reconsideration, which was denied, and the mandate issued on August 5, 2002. Six weeks later, Outler filed a Rule 60(b) motion in the Southern District of West Virginia, which the court denied on September 22, 2003. Again he appealed to the Fourth Circuit, but it denied his appeal on
Back in this Circuit, in July 2003, he filed a motion to modify his term of imprisonment pursuant to 18 U.S.C. § 3582. The district court denied this motion. He also sought permission from this Court to file a successive § 2255 motion, which was denied on July 8, 2003. In re Outler, No. 03-13265 (11th Cir. July 8, 2003) (unpublished).
In April 2004, Outler filed the instant § 2255 motion, and the district court dismissed it as successive. In this motion, Outler raised largely the same arguments he had raised in his recharacterized Rule 33 motion; the only argument he added was a competency to stand trial challenge. Outler appealed the district court’s dismissal of the instant § 2255 motion. This Court granted a COA on the issue of whether the district court violated Castro v. United States,
On remand, the magistrate judge found that the instant § 2255 motion was time-barred. The magistrate judge found that Outler had one year from the effective date of the Antiterrorism and Effective Death Penalty Act (“AEDPA”) to file his § 2255 motion, i.e., April 23, 1997. The magistrate judge further noted that Outler outlined no basis for equitable tolling.
Outler filed a written objection to the magistrate judge’s report, asserting that the statute of limitations should run from the date on which Castro was decided, rather than from the effective date of AEDPA, for three reasons. First, he asserted that until Castro was decided, he was prevented from filing his § 2255 motion because of a government-imposed impediment to filing under 28 U.S.C. § 2255 ¶ 6(2). Second, he argued that his § 2255 motion raised a right newly recognized by the Supreme Court in Castro and made retroactively applicable to cases on collateral review under 28 U.S.C. § 2255 ¶ 6(3). Finally, he asserted the magistrate judge erred by not finding that the statute of limitations period should be equitably tolled.
The district court again dismissed Out-ler’s instant § 2255 motion, adopting the recommendation of the magistrate judge over Outler's objections. The district court noted that this Court has rejected the argument that a federal prisoner’s filing of a post-conviction motion allows for delaying the start of the AEDPA clock. The district court found that the post-conviction actions initiated by Outler did not constitute government action that prevented him from filing a § 2255 motion. The court also observed that Castro has
Outler subsequently filed a timely notice of appeal. He moved for a COA with the district court, and the district court granted a COA on the issue of whether the instant § 2255 motion is time-barred.
II. DISCUSSION
On appeal, Outler argues that the statute of limitations should begin to run from the date Castro was decided for three reasons. First, he argues that when the government suggested that his Rule 33 motion be construed as a § 2255 motion, and the district court agreed, it impeded his ability to file a first § 2255 motion. He claims that this impediment was not removed until Castro was decided. Second, he asserts that Castro announced a new right concerning AEDPA that was made retroactively applicable to cases on collateral review. Third, he asserts that equitable tolling should apply because the district court incorrectly found that he did not act with due diligence.
This Court reviews de novo a district court’s dismissal of a § 2255 motion as time-barred, as well as a district court’s finding that equitable tolling does not apply. Jones v. United States,
The AEDPA imposes a one-year statute of limitations for filing a § 2255 motion. See 28 U.S.C. § 2255; Sandvik v. United States,
(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.
28 U.S.C. § 2255.
It is undisputed that the present § 2255 motion is time-barred if the trigger for the statute of limitations is when Out-ler’s conviction became final under § 2255 ¶ 6(1) and equitable tolling does not apply. Outler’s conviction was final before the enactment of the AEDPA. Thus, Outler had until April 23, 1997, to file his § 2255 motion. Outler’s filing of a Rule 33 motion would not have tolled the one-year limitations period. Barnes v. United States,
In Castro, the Supreme Court held that when a district court recharac-terizes a pro se pleading as an initial § 2255 motion, the district court must do the following:
(1) notify the pro se litigant that it intends to recharacterize the pleading, (2) warn the litigant that this recharacteri-zation means that any subsequent § 2255 motion will be subject to the restrictions on “second or successive” motions, and (3) provide the litigant an opportunity to withdraw the motion or to amend it so that it contains all the § 2255 claims he believes he has.
A. Governmental Impediment to Filing: 28 U.S.C § 2255 ¶ 6(2)
Under 28 U.S.C. § 2255 ¶ 6(2), the statute of limitations runs from “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.” We conclude that the district court’s recharacterization of Outler’s Rule 33 motion is not the type of impediment contemplated by § 2255 ¶ 6(2). In the first place, the recharacteri-zation cannot properly be called a violation of the Constitution or laws of the United States. We do not read Castro as holding that a recharacterization is unlawful. In Castro, the Supreme Court addressed the “longstanding practice,”
Nothing in Castro indicates that a re-characterization is unlawful. To the contrary, the Court expressly held that
They [courts] may do so [recharacterize] to avoid an unnecessary dismissal ... to avoid inappropriately stringent application of formal labeling requirements, ... or to create a better correspondence between the substance of a pro se motion’s claim and its underlying legal basis.
Id. at 381-82,
Although the recharacterization in this case was not unlawful, it is true that the recharacterization occurred before the case law required the district court give notice. And it is true that the recharacter-ization here was not accompanied by the notice later provided for by the Supreme Court’s supervisory authority in Castro. However, because the prior panel applied the Castro holding retroactively, the adverse consequences of the recharacterization contemplated by Castro have been eliminated. Accordingly, we hold that
Our decision in this regard finds support in Lawrence v. Florida,
B. Newly Recognized Right Made Retroactively Applicable, 28 U.S.C. § 2255 ¶ 6(3)
Under 28 U.S.C. § 2255 ¶ 6(3), the statute of limitations runs from “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.” The meaning of “right asserted” in 28 U.S.C. § 2255 ¶ 6(3) is the substantive right that forms the basis for the § 2255 motion, rather than a procedural right related to the timing or manner in which the § 2255 motion is filed. Logic and the plain language of the statute support this interpretation: the statute states that the one-year limitations period begins to run from “the date on which the right asserted was initially recognized .... ” § 2255 ¶ 6(3). Additionally, the Court in Castro created a procedural rule. The Court spoke of regulating lower courts’ practices and its “ ‘supervisory powers’ over the Federal Judiciary.”
C. Equitable Tolling
The statute of limitations can be equitably tolled where a petitioner “untimely files because of extraordinary circumstances that are both beyond his control and unavoidable even with diligence.” Steed v. Head,
Outler’s argument in favor of equitable tolling relies upon his numerous
After careful consideration of all the circumstances, we cannot conclude that Out-ler has established an entitlement to equitable tolling. As discussed below, we do not believe that the mere change of law worked by Castro is sufficient. Also for the reasons discussed below, we do not think that Outler has demonstrated that the recharacterization in this case deterred him from filing additional claims for relief before the one-year statute of limitations period expired. Significantly, at no time prior to the expiration of the statute of limitations did Outler alert the district court or this Court that he had other claims that he intended to raise in a § 2255 petition, and he did not identify any such additional claims. Finally, even in the instant § 2255 motion, filed in April 2004, approximately seven years after the expiration of the statute of limitations on April 23, 1997, Outler has raised only one issue that had not already been raised, and decided against him on the merits, in his original Rule 33 motion.
We turn first to Outler’s argument that he has satisfied the extraordinary circumstances requirement because of the change of law effected by Castro. In Gonzalez v. Crosby,
We believe that Gonzalez provides substantial support for our decision in this case that the change of law worked by Castro does not constitute extraordinary circumstances. Although Gonzalez was asserting a change of law as an extraordinary circumstance warranting the reopening of a closed case, while Outler is asserting a change of law as warranting equitable tolling, Outler, like Gonzalez, is arguing that the change of law demonstrates that long-closed previous litigation was decided against him incorrectly- — i.e., the district court’s decision in December
Moreover, in the instant case, as in Gonzalez, Outler failed to challenge the rechar-acterization of his pleading to the fullest extent. Indeed, in the district court, after the government suggested the recharac-terization, Outler’s responsive brief noted the government’s suggestion, but made no argument at all in opposition to it. After the district court’s ruling recharacterizing his claims, Outler filed a motion to alter or amend, but did not challenge the recharac-terization. It is true that Outler did challenge the recharacterization for the first time in his September 1996 brief to this Court. However, the challenge was based not upon the fact that the recharacterization deprived him of the opportunity to file a § 2255 motion or raise additional claims; rather, Outler’s vague argument apparently reflected a belief that the reeharacteri-zation somehow led the district court to reject his new trial claim based on newly discovered evidence. At best, we deem this a conclusory challenge to the rechar-acterization.
Second, we are not persuaded that Outler has demonstrated in this case that he was deterred by the recharacteri-zation from asserting additional claims before the expiration of his statute of limitations.
It is significant in our thinking that, as noted above, before the expiration of the
The three eases upon which Outler relies are each distinguishable. For example, in United States v. Kelly,
Having rejected each of Outler’s arguments for tolling of the statute of limitations, we conclude that the district court’s decision dismissing his petition as time-barred is due to be affirmed.
AFFIRMED.
Notes
. Thus, the retroactive application of Castro to the instant § 2255 motion is law of the case, is not challenged by the government in this appeal, and therefore is an issue that is not before us.
. This new evidence claim was the only substantive claim Outler pursued on appeal. Thus, he abandoned the other claims that were the subject of the district court’s rechar-acterization. The new evidence claim was not affected by the district court’s recharac-terization, contrary to Outler’s vague suggestion in the September 1996 brief. Rather, the district court addressed the new evidence claim as a Rule 33 new trial claim, and denied it on the merits.
. The importance of what Outler did during the limitations period stems from our concern that he not be placed in a better position than other habeas petitioners. If he is allowed to raise claims that only occurred to him after the limitations period it would not be equitable to other petitioners who also thought of claims after the period expired. Thus we require a showing that Outler would have brought these claims during the limitations period.
.Although Castro held that a pro se litigant should be given actual notice of the restrictions on successive § 2255 motions, no case has ever held that a pro se litigant should be given actual notice of a statute of limitations. Cf. Pliler v. Ford,
. It is true that a challenge to a recharacteri-zation could be deemed an implicit expression of a desire to assert additional claims. However, a mere expression of a desire to assert unidentified claims, even if expressed prior to the expiration of the statute of limitations, may not warrant tolling the time bar. For example, if a pro se litigant filed a petition on the day before the limitations period expired merely expressing a desire to assert unidentified claims later, we doubt that such a petition would toll the statute of limitations for later identified claims. Cf. Davenport v. United States,
. Even in this August 1997 motion, Outler merely identified another claim; he did not challenge the recharacterization or indicate any deterrent effect it had.
. As summarized at the outset of this opinion, Outler filed numerous pleadings after the expiration of his limitations period, in the district court, in this court, and in the Fourth Circuit. In many of these filings, Outler challenged the recharacterization and/or attempted to assert additional claims for relief. However, all of these belated challenges came after the expiration of his statute of limitations, and none provide convincing evidence that Outler desired to assert additional claims before his limitations period expired, had identified such claims, or was deterred from asserting them because of the recharacterization.
.The other two cases relied upon by Outler are distinguishable for the same reasons. See United States v. Miller,
. We note that the dissent focuses primarily upon Outler’s rather considerable litigation, but fails to note that almost all of these efforts occurred after the statute of limitations had expired on April 23, 1997. Even the dissent notes that the first assertion of an additional claim occurred in April 2004, seven years after the statute of limitations had run. In other words, it was not until then that Outler made any suggestion that he had other claims, in addition to those he asserted, and which were decided against him on the merits, in the 1995 suit that he labeled a Rule 33 motion and that was recharacterized.
However, we respectfully submit that the focus of the dissent on the later efforts is misguided. Contrary to the suggestions of the dissent, the relevant actions of Outler are those that occurred before April 23, 1997 (or at least actions that reflected intentions or deterrence to action before that date). The dissent does note that Outler challenged the recharacterization in 1996 on appeal from the Rule 33 motion, and the dissent concludes that this "1996 appeal is further evidence that he had additional claims that he wished to assert.” Dissenting opinion at 1288. We respectfully disagree. The dissent overlooks the fact that his "challenge” to the recharacteri-zation in his September 1996 brief on appeal was based not upon the fact that the rechar-acterization deprived him of an opportunity to file a § 2255 motion or raise additional claims but rather, Outler’s vague argument apparently reflected a belief that the rechar-acterization somehow led the district court to reject his new trial claim based on newly discovered evidence. In other words, his "challenge” on appeal was no evidence at all that he had additional claims to assert or was otherwise deterred in any way by the rechar-acterization. This conclusion is bolstered by the fact that Outler’s responsive brief indicated no opposition at all to the government’s suggestion in the district court that the Rule 33 motion be recharacterized. And after the district court’s ruling, which recharacterized some of his claims, Outler filed a motion to alter or amend, but made no challenge at all to the recharacterization.
The dissent notes her disagreement with our rationale that Outler failed to show that he was deterred by the recharacterization from asserting additional claims before the expiration of the statute of limitations. Respectfully, however, we can discern no reason suggested by the dissent why this fact is not significant. We cannot understand why equity would indicate tolling when Outler has wholly failed to show that he was deterred with respect to filing any additional claims within the period of the statute of limitations. The law is clear that the burden of proof with respect to equitable tolling lies with Outler. As we noted in the text, to the extent that Outler was unaware that the recharacterization would impose restrictions to his filing of additional claims he of course would have experienced no deterrence. On the other hand, to the extent that he might have been aware that a recharacterization would impose additional restrictions on or impediments to his filing of additional claims within the statute of limitations, common sense indicates that he would have promptly contested such recharacterization and promptly expressed an intention to assert any such additional claims that he had.
In the absence of any evidence of deterrence, and in the absence of any evidence that the recharacterization played any role at all with respect to whether or not Outler filed additional claims before the statute of limitation expired, we cannot conclude that he is entitled to equitable tolling.
Dissenting Opinion
dissenting:
Respectfully, I must dissent because I believe that denying relief in this extraordinary case undermines the concept of equity that the doctrine of tolling was intended to address. Outler’s petition was made untimely by an undisputed error of the court, which Outler has protested on appeal for more than a decade. The purpose of equitable tolling is to allow diligent petitioners to have their claims heard in cases where those claims were made untimely by extraordinary circumstances beyond the
Petitioners whose claims would ordinarily be barred by a statute of limitations are entitled to equitable tolling when their filing was made untimely by (1) extraordinary circumstances that were (2) unavoidable even with diligence. Steed v. Head,
I. Extraordinary Circumstances
The extraordinary circumstance Outler points to is not, as the majority supposes, “the change of law effected by Castro,’’ Maj. Op. at 1281 (citing Castro v. United States,
This Circuit has repeatedly recognized that improper court action, like the actions of government officials, may provide the basis for equitable tolling. Lawrence v. Florida,
Our recent opinion in Spottsville v. Terry,
It is unreasonable to expect a pro se litigant to second-guess or disregard an instruction in a written order of a court .... Because Spottsville relied on the misleading instructions of the Superior Court of Tattnell County, equity requires that Spottsville’s limitations period be tolled during the pendency of his attempting appeal of the denial of his state habeas petition.
Id. at 1246. As in Spottsville, the unilateral action of the court here undoubtedly caused the untimeliness of the filing. But the court’s recharacterization of Outler’s petition was more than “misleading” — it was simply wrong. Outler, acting pro se, contested that legally significant recharac-terization in his initial appeal and for years thereafter, despite the fact that Eleventh Circuit law was not in his favor. The Supreme Court’s 2003 decision in Castro— which the Court made retroactive and which we have already found applicable in
The majority finds that “because the prior panel applied the Castro holding retroactively, the adverse consequences of the recharacterization contemplated by Castro have been eliminated.” Maj. Op. at 1279. This very case belies that argument. The untimeliness of Outler’s petition — like the successiveness that Castro specifically addressed
II. Diligence
Moreover, on this record, there is no question that Outler was extremely diligent. He has pursued near-constant litigation ever since his Rule 33 motion was improperly recharacterized as a § 2255 petition in December 1995, a recharacterization that he challenged in his initial appeal. He pursued that argument despite constant legal obstacles stemming from the recharacterization, until Castro vindicated his position. As Outler notes in his brief, he has had relevant litigation pending for all but 177 days in the past eleven and a half years. Appellant Supp. Br. at 26.
Following the recharacterization of his original Rule 33 motion as a § 2255 petition, Outler immediately appealed to this Court, arguing that the district court had improperly recharacterized his motion. When we rejected his claim based on Circuit precedent which the Supreme Court would later overturn in its retroactively applicable Castro decision, Outler twice requested permission to file a successive § 2255 motion. We denied these requests as well, at which point Outler filed a § 2241 habeas petition in the federal district court where he was incarcerated, raising substantially similar issues about the improper characterization of his first petition. He also sought certiorari from the United States Supreme Court, and filed two Rule 60(b) motions seeking relief from judgment and a motion under 18 U.S.C. § 3582(c)(2) seeking reduction of his sentence. Then, in December 2003, the Supreme Court decided Castro, holding that when a district court recharacterizes a pro
Although it never explicitly rules that Outler failed to show the diligence required for equitable tolling, the majority does say that Outler “failed to challenge the recharacterization of his pleading to the fullest extent,” Maj. Op. at 1282,
The majority repeatedly suggests that Outler was required to show “additional claims” that the recharacterization deterred him from filing. Even if this were so, Outler did, as the majority recognizes, include in his first habeas petition a previously unasserted argument regarding his capacity to stand trial. This was an “additional claim” that was not part of the original, recharacterized motion. Outler raised this new claim in the first self-identified § 2255 petition he was allowed to file. Additionally, the fact that Outler immediately challenged the recharacterization in his 1996 appeal is further evidence that he had additional claims he wished to assert.
Furthermore, I do not believe it was ever Outler’s burden, in the absence of the required Castro warnings, to show that he had “additional claims” he wished to assert. The Supreme Court in Castro held that recharacterizations are improper “unless the court first warns the pro se litigant about the consequences of the rechar-acterization, thereby giving the litigant an opportunity to contest the recharacterization, or to withdraw or amend the motion.” Castro,
Outler, to his credit, contested the re-characterization even without a Castro warning. His failure to specifically assert in 1996 that he had additional claims is analogous to the failure of the petitioner in Castro to appeal the recharacterization of his Rule 33 motion.
After reviewing the case record, I find it difficult to imagine how much more diligence Outler could have exhibited. For more than a decade, he has actively attempted to assert the substantive claims contained in his present § 2255 petition (some of which differ from those raised in his Rule 33 motion) despite the numerous procedural obstacles placed in his way. In my opinion, the district court’s determination that Outler failed to show due diligence represents clear error.
III. Equitable Tolling In This Case Is In Line With Persuasive Authority From Other Circuits, And Is Necessary To Vindicate The Supreme Court’s Holding In Castro
Many of our sister circuits have considered this very problem, both before and after Castro, and concluded that it demands the application of equitable tolling. In United States v. Kelly,
[T]he one-year statute of limitations imposed by AEDPA ordinarily would bar the motion at this point. See § 2255, paragraph 6. At the time of the district court’s ruling, Kelly had several months remaining in which to file a timely § 2255 motion, and it was the court’s unilateral action that essentially prevented him from doing so. Additionally, he has diligently pursued his claim since then. Consequently, out of concern for*1290 fairness, we hold that the limitations period on the filing of Kelly’s § 2255 motion should be tolled from the date the district court recharacterized his motion as a § 2255 motion, on October 18, 1999, until the date of this decision.
Id. at 1242-43 (emphasis added). Other circuits, likewise anticipating Castro, reached the same conclusion. United States v. Miller,
Many of these opinions specifically foresaw the problems the statute of limitations would raise, and required district courts recharacterizing petitions to notify petitioners of the one-year limitation.
The majority distinguishes these cases on the grounds that they involve petitioners who were planning to assert additional claims when their motions were first re-characterized. Although it is true that the petitioners in Kelly, Adams, and Miller all had additional claims they wished to assert, that fact was not central to the holding of any of the cases. Moreover, for the reasons set out above, I believe that Outler has sufficiently demonstrated that he had “additional claims” to assert, even though, in the absence of Castro warnings, it was never his burden to show them. Nor is it fair to distinguish Kelly, as the majority does, on the grounds that “[ujnlike Kelly, who successfully challenged the recharac-terization of his claims in the same proceeding in which they were recharacter-ized, Outler is attempting to challenge a recharacterization ruling in a 1995 district court decision, affirmed by the Eleventh Circuit in 1998 — a long closed case.” Maj. Op. at 1284. Outler is not “attempting to challenge a recharacterization ruling.” He has already done so, successfully, as a prior panel of this Circuit faithfully applied Castro and held that the “recharacterization ruling” in this case was flawed. The fact that it occurred in 1998, and was not corrected until 2005, is no fault of Outler’s. The petitioners in Kelly, Adams, and Miller succeeded because their Circuits’ precedent — like that of “almost every Court of Appeals” except this one, Castro,
Moreover, I note that if petitioners like Outler (or indeed Castro himself) were to be time-barred from filing the § 2255 habeas petitions which were forbidden before Castro, then Castro was a hollow holding indeed: Nearly all of the petitions which the Supreme Court clearly meant to allow as non-successive would now be time-barred. The Supreme Court, which is well aware of the time limitations AEDPA imposes on habeas filings, cannot have intended this result. For us to hold otherwise effectively undermines Castro’s intended retroactive effect. See Castro,
CONCLUSION
The district court’s sua sponte recharac-terization of Outler’s motion was unfair. The court today is equally unfair in denying him the benefit of a doctrine which was designed to correct such inequities. Out-ler is entitled to equitable tolling because he diligently pursued his claims despite the extraordinary circumstances caused by the district court’s improper recharacteri-zation of his initial motion.
. The majority is correct that Outler "is arguing that the change of law [due to Castro] demonstrates that long-closed previous litigation was decided against him incorrectly.” Maj. Op. at 1281. But of course we have already decided — based on the Supreme Court’s opinion in Castro — that this was the case, and that the recharacterization was improper. Outler v. United States,
. The majority points out that "[njothing in Castro indicates that a recharacterization is unlawful.” Maj. Op. at 1279. This is true, but irrelevant. Recharacterization without a warning of the conséquences — and there was no such warning given to Outler—is unlawful. Castro,
. The majority does acknowledge Outler's "numerous filings seeking to challenge the district court's recharacterization of his 1995 Rule 33 motion for a new trial and asserting his various claims." Maj. Op. at 1281.
. I note that, unlike Castro, Outler did appeal the judicial recharacterization of his Rule 33 motion, despite the fact that both Castro and Outler faced the same Circuit law at the time of their recharacterizations.
. I believe that the majority overstates its position when it says that "[ajlthough Castro held that a pro se litigant should be given actual notice of the restrictions on successive § 2255 motions, no case has ever held that a pro se litigant should be given actual notice of a statute of limitations.” Maj. Op. at 1282 n.4. Many of our sister circuits have held exactly that, in cases just like this one.
. Because I believe that Outler is entitled to equitable tolling, I do not reach his claims that his petition was timely under 28 U.S.C. § 2255 ¶ 6(2) and (3).