ON PETITION FOR REHEARING EN BANC

ORDER:

The Court having been polled at the request of one of the members of the Court and a majority of the Circuit Judges who are in regular active service not having voted in favor of it (Rule 35, Federal Rules of Appellate Procedure; Eleventh Circuit Rule 35-5), the Petition for Rehearing En Banc is DENIED.

dissenting from the denial of rehearing en banc:

I believe the issue in this case merits en banc consideration. The panel-majority holds that when a federal court bases an enhanced sentence on a state conviction, the subsequent state vacatur of that very same conviction is not a fact supporting a prisoner’s habeas claim that his sentence should be reduced accordingly. I do not believe the panel-majority’s statutory interpretation of 28 U.S.C. § 2255 ¶ 6(4) (2003) is supported by law or logic. On the contrary, I believe that Judge Roney’s dissent and Judge Wilkinson’s opinion for the Fourth Circuit1 correctly explicate the relevant law.

It is axiomatic that courts must give words their ordinary meaning. United States v. Steele, 147 F.3d 1316, 1318 (11th Cir. 1998) {en banc) (“Where the language Congress chose to express its intent is clear and unambiguous, that is as far as we go to ascertain its intent because we must presume that Congress said what it meant and meant what it said.”). The ordinary meaning of “fact” refers to “a thing done” that can be “known with certainty.”2 In this case, the vacatur of state conviction is a fact because it is something that actually occurred and can be proven in support of Johnson’s claim. However, the panel-majority concludes that a vacatur cannot be a fact because it comes from an authoritative legal source. Although distinctions are often made between the facts and the legal consequences of a case,3 no metaphysical barrier prevents a legal consequence from sometimes operating as a fact. With regard to Johnson’s federal habeas claim, the vacatur of his state court conviction is the operative fact that supports his claim, while a reduction in his sentence would be the possible “legal effect or consequence” of that fact.

The panel-majority suggests that the underlying state Gideon violations — and not the state vacaturs — are the facts that support Johnson’s habeas claim. Simultaneously, the panel-majority asserts that the underlying constitutional claims would not have been sufficient to support a federal habeas claim, acknowledging that “[t]he entire point of Custis [v. United States, 511 U.S. 485, 114 S.Ct. 1732, 128 L.Ed.2d 517 (1994)] and Daniels [v. United States, *1330532 U.S. 374, 382, 121 S.Ct. 1578, 149 L.Ed.2d 590 (2001)] was that litigants should not bypass state courts to litigate the facts underlying their state convictions during challenges to a federal sentencing determination.” Johnson v. United States, 340 F.3d 1219, 1225 (11th Cir. 2003). Thus, the panel-majority paradoxically asserts that federal courts are not the proper forum for litigating facts underlying a state conviction, but these very same facts can trigger the statute of limitations for federal habeas review.

The panel-majority also supports its interpretation by arguing that it promotes AEDPA’s goal of finality. But that is not AEDPA’s only goal. The Supreme Court has continually asserted that AEDPA is designed “to further the principles of comity, finality, and federalism.” See, e.g., Woodford v. Garceau, 538 U.S. 202, 123 S.Ct. 1398, 1401, 155 L.Ed.2d 363 (2003); Duncan v. Walker, 533 U.S. 167, 178, 121 S.Ct. 2120, 150 L.Ed.2d 251 (2001); Williams v. Taylor, 529 U.S. 420, 436, 120 S.Ct. 1479, 146 L.Ed.2d 435 (2000). Often decisions will simultaneously promote all three of these principles. In many instances, the Supreme Court has extolled the virtues of finality because of its relation to comity.4 However, in this case, the federal court poses no risk of disrupting the finality of a state action. The state itself has decided to vacate the conviction. The Supreme Court has stated that in the habeas context a federal court should not “deprive [a] state-court judgment of its normal force and effect.” Daniels, 532 U.S. at 378, 121 S.Ct. 1578. This is exactly what the panel-majority does by stripping the state court of the ability to exculpate criminal defendants.

In summary, I believe that this particular litigant, who followed the instructions of the Supreme Court,5 who followed the direct instructions of this Court,6 who fol*1331lowed the proper instructions of the state and was able to have his state convictions timely vacated, and who probably relied on the plain language of § 2255 ¶ 6(4), is unfairly being denied his right to present his habeas petition.