Full opinion text
MEMORANDUM AND ORDER WOLF, District Judge. I. SUMMARY In 1993, petitioner Franklin Goldman was convicted in this federal court of conspiracy to possess cocaine with intent to distribute and possession of cocaine with intent to distribute. Ordinarily, the Guideline range for Goldman’s offenses would have been 121 to 151 months. If Goldman had been sentenced in 1993 to 121 months in custody, he would have been released no later than August 15, 2002. If he had been sentenced to 151 months in custody, he would have been released no later than February 15, 2005. However, a defendant with at least two felony convictions for either a crime of violence or a controlled substance offense was classified as a Career Offender and had an increased Guidelines range. See U.S.S.G. § 4B1.1. In 1993, Goldman had two such convictions. Therefore, the Guideline range for his sentence was 360 months to life. In 1993, the late Judge A. David Mazzone sentenced Goldman, who was then forty-nine years old, to 360 months — thirty years — in prison. Thus, Goldman’s status as a Career Offender added seventeen to twenty years to his sentence. In 1993, Goldman had only two prior convictions that qualified for Career Offender purposes. One was a 1977 conviction in the Massachusetts Superior Court for the alleged kidnapping of Jeffrey Lopes. Goldman and two co-defendants, Francis Larkin and Ralph Mondello, were convicted in a non-jury trial by Superior Court Justice Vincent R. Brogna. Goldman was given a five to ten year sentence to be served concurrently with another sentence that he was then serving. Therefore, in 1977, the sentence imposed in the kidnapping case had no consequences for Goldman. Nevertheless, in 1977 Goldman attempted to appeal his conviction and sentence. However, Justice Brogna denied his requests for appointment of counsel and for a transcript of the trial. In the absence of a transcript, Goldman’s appeals were dismissed without ever being reviewed on their merits. After the 1977 kidnapping conviction had dramatic consequences for the federal sentence imposed on Goldman in 1993, he promptly sought to have a series of four attorneys move to vacate that conviction in state court. Despite Goldman’s efforts, it was not until 2000 that a motion for a new trial was filed on his behalf. In 2001, that motion was granted and Goldman’s 1977 conviction was vacated. In 2002, the state decided not to retry Goldman. In 1994, the Supreme Court had held that a defendant or prisoner who wished to challenge a state conviction that resulted in a federal sentencing enhancement could not do so in a federal sentencing proceeding. Custis v. United States, 511 U.S. 485, 114 S.Ct. 1732, 128 L.Ed.2d 517 (1994). Rather, the Supreme Court indicated that the proper procedure would be to move to vacate the state sentence in state court and, if successful, “apply for reopening of any federal sentence enhanced by the state sentence[ ].” Id. at 497, 114 S.Ct. 1732. Therefore, the vacatur of the kidnapping conviction in 2001 would ordinarily have made Goldman eligible for resentencing and for a substantial reduction of his sentence that could have resulted in his immediate release. Recognizing this, Goldman promptly filed in 2002 a motion to reopen his federal sentencing in accordance with the prescription in Custis. Such motions are now relatively common and generally result in a reduction of a federal sentence after a material state court conviction has been vacated. At this point, however, Goldman and the courts confronted a complex series of procedural issues. By 2002, Goldman had unsuccessfully appealed his 1993 federal conviction. In 1995, prior to the enactment of the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”) in 1996, Goldman also filed an unsuccessful motion pursuant to 28 U.S.C. § 2255 to correct his sentence. Evidently recognizing that Cus-tis indicated that challenges to state convictions must first be successfully made in state court, Goldman’s 1995 § 2255 motion did not challenge his Career Offender status. Prior to AEDPA there was no bar on filing a second, successive § 2255 motion. Therefore, when he filed his § 2255 motion Goldman would have reasonably expected to have been able to challenge his Career Offender status in a second § 2255 motion if he later succeeded in getting his 1977 conviction for kidnapping vacated. However, in 1996 AEDPA, among other things, imposed a one-year statute of limitations on § 2255 motions and prohibited federal prisoners from filing second or successive § 2255 motions except in very limited circumstances. Although Goldman styled his 2002 submission as a motion to reopen his 1993 federal sentencing as Custis instructed, Judge Mazzone construed it as a second or successive § 2255 motion which could not, under AEDPA, be considered without leave of the First Circuit. The First Circuit subsequently denied Goldman leave to file a second § 2225 motion because he had not made a prima facie showing that he had newly discovered evidence which, if credible, would establish by clear and convincing evidence that no reasonable factfin-der would find him guilty of the drug crimes for which he was convicted in federal court in 1993. Therefore, in 2004, Goldman filed the instant petition pursuant to 28 U.S.C. § 2241. Section 2241 empowers the federal courts to hear and grant petitions for writs of habeas corpus, and provides an equitable remedy to federal prisoners in very limited circumstances when § 2255 is inadequate or ineffective to challenge their detention. The First Circuit has not decided all issues concerning when § 2241 is available to federal prisoners. However, it has repeatedly emphasized that a claim of actual innocence will have a mechanism for review, including under § 2241 if § 2255 is unavailable. The standard for demonstrating actual innocence has been developed in the procedural default context, where courts recognize that a meritorious showing of actual innocence permits collateral review of claims otherwise defaulted by a petitioner’s failure to raise them earlier. It is a very high standard. It is rarely met. However, this is one of those rare cases. Here, the government argues that even if Goldman is permitted access to § 2241, his claims are procedurally defaulted because he did not raise them in an earlier proceeding and are barred because he did not pursue vacatur of his state court conviction with sufficient diligence. The court finds, however, that Goldman was sufficiently diligent in seeking to vacate his 1977 conviction after it had consequences for his federal sentence. Nevertheless, his claims would ordinarily be procedurally defaulted because of his failure to challenge his 1977 conviction during his 1993 federal sentencing hearing. However, his clear and convincing showing of actual innocence excuses this default. After many hearings focusing primarily on the challenging procedural issues in this case, in 2007 Goldman obtained crucial new evidence of his actual innocence of the purported 1975 kidnapping of Lopes. That evidence was tested at a March, 2008 evidentiary hearing. The court finds that evidence to be credible and compelling. It provides clear and convincing proof that no fully informed reasonable juror would have convicted Goldman of kidnapping Lopes. Therefore, Goldman is entitled to be resen-tenced for his 1993 federal conviction without regard to that conviction. As explained in detail in § 111(C)(2), infra, although there is no transcript of the 1977 state trial, the relevant police reports indicate that the critical witness was Jeffrey Lopes, the purported victim of the kidnapping. He claimed to have been kidnapped from the Stadium Cafe by three men, who demanded that his father, an incarcerated associate of La Cosa Nostra Boss Raymond Patriarca, pay money to them to protect Lopes and his family from harm. Lopes and other witnesses identified Larkin and Mondello as two of the three men who came to the Cafe. Investigation demonstrated that Lopes was transported in vehicles rented by Larkin and Mondello. Larkin was arrested at the place where the payment for Lopes’ protection was to have been made. Larkin was also identified as being in the motel where Lopes was taken after Mondello’s own vehicle was disabled in a snow storm, and Larkin’s fingerprint was found there. In the police reports, Goldman is not identified by anyone as being at the Cafe or motel. He is identified by two service station operators as a person who dealt with them concerning the disabled vehicle. The court assumes that Lopes identified Goldman at trial as one of his kidnappers. However, the contemporaneous records indicate that Goldman was impermissibly shown to Lopes and other witnesses prior to the jury-waived trial before Justice Brogna. Francis O’Boy, the former Assistant District Attorney who prosecuted Goldman, Mondello, and Larkin, characterized Lopes as a “despicable” person. Therefore, the evidence that Goldman was involved in the purported 1975 kidnapping of Lopes was weak at the time he was tried in 1977. Significant, new exculpatory evidence was presented at the March, 2008 evidentiary hearing in this matter. First, Ralph DeLeo, an associate of Goldman, Mondello, and Larkin in the 1970s, credibly explained that he was the third person involved in the purported kidnapping of Lopes. According to DeLeo, Lopes owed a substantial debt. Harvey Brower, a criminal defense lawyer associated with Patriarca who later became a federal felon, arranged with Lopes a phony kidnapping to extort money from Lopes’ father which would be used to settle Lopes’ debt. De-Leo participated in that scheme with Mon-dello and Larkin. Before the 1977 trial, DeLeo told Jack Zalkind, the attorney representing Goldman and Mondello, that he, rather than Goldman, had been involved. Zalkind testified in this case and confirmed this. Mondello, who has had a genuine epiphany and would regard it as a “grave sin” to lie, also testified and confirmed DeLeo’s account. He explained that he had called Goldman to assist with his disabled vehicle and that Goldman had no other involvement in the phony kidnapping of Lopes. Goldman’s testimony was consistent with Mondello’s. The evidence presented to this court provides clear and convincing proof that no fully informed reasonable juror would have convicted Goldman of the purported kidnapping of Lopes. Therefore, the conviction for that offense which in 1993 resulted in an additional seventeen to twenty years being added to Goldman’s federal sentence has caused a true miscarriage of justice for which § 2241 provides an avenue for relief. Because serious errors at his 1977 trial led to the loss of Goldman’s direct appeal and to the subsequent vacating of the 1977 conviction, Goldman’s claim for relief under § 2241 is meritorious. Accordingly, Goldman’s petition for relief is being granted. The court will resen-tence Goldman. He has already served an extra three to six years because of his 1977 conviction for kidnapping. Thus, the court expects to order Goldman’s immediate release. The court is, however, providing the government an opportunity to move for a stay of that foreseeable order prior to the resentencing hearing. II. PROCEDURAL HISTORY A. Goldman’s 1977 State Court Conviction On February 17,1976, Goldman and two codefendants, Mondello and Larkin were charged in Bristol Superior Court of the Commonwealth of Massachusetts with kidnapping and attempt to commit a crime, extortion. See United States v. Goldman, Cr. No. 92-10229-ADM, Presentence Report (“PSR”) at ¶¶ 61, 69; Ex. 4 (Bristol County Docket). The charges arose from the alleged kidnapping by three men of Jeffrey Lopes from the Stadium Cafe in New Bedford, Massachusetts on November 24,1975. After a jury trial ended in a mistrial, the case proceeded to a jury-waived trial before Justice Brogna. Bristol County Docket Jul. 26, 1977 (“Deft.’s Waiver of Trial by Jury”). Justice Brogna found Goldman and his codefendants guilty. Id. Aug. 5, 1977 (Court Finding of Guilty, Brogna, J.). Goldman was sentenced to not more than ten or less than five years in prison to run concurrently with a sentence that Goldman was already serving on a separate conviction. Id. Aug. 5, 1977 (Sentence); PSR 569. Justice Brogna’s sentence did not extend the time in which Goldman would be in custody. Because the concurrent sentence had no practical effect at the time, Goldman’s attorney, Zalkind, advised him not to appeal. Mar. 18, 2008 Transcript (“Tr.”) at 30 (Test, of Zalkind). Despite this advice, Goldman promptly made numerous pro se filings attempting to appeal Justice Brog-na’s finding of guilt and sentence. See Pro Se Claim of Appeal, Bristol County Docket Aug. 12, 1977; Appeal from Sentence, id. Aug. 15, 1977; Motion to Revoke and Revise, id. Aug. 26, 1977; Motion for Free Transcripts, id. Sept. 28, 1977; Petition for a Writ of Habeas Corpus ad Testifican-dum, id. Sept. 28, 1977; Motion for Appointment of Counsel, id. Sept. 28, 1977. Justice Brogna denied nearly all of Goldman’s motions, including his motion for transcripts and for appointment of counsel, without a hearing. Id. Oct. 19, 1977. Justice Brogna explained that the motion for counsel was being denied because Zalkind had not been allowed to withdraw, and that his Motion for Transcripts was being denied because: The defendant’s attorney of record has not asked for a transcript. Furthermore, I consider the claim of appeal to be completely frivolous. The evidence at trial, which took two weeks, was overwhelming against Mr. Goldman. Furthermore, he was apprehended by the police at the place where the supposed ransom money was to be dropped off. Ex. 21 (Letter from J. Brogna to Clerk, Oct. 14, 1977) at 1. It is evident that in this ruling Justice Brogna was confusing Goldman with his co-defendant Larkin, who was the only person apprehended on November 25, 1975, at the place where the ransom money was to have been left. See infra § 11(C)(2). Goldman was not arrested until over a month later. On November 10, 1977, Justice Brogna allowed Zalkind to withdraw as counsel, but took no action on Goldman’s prior motion for appointment of counsel. Bristol County Docket, November 10, 1977. In 1981, the Massachusetts Appellate Division dismissed the appeal of Goldman’s sentence, but did not act on his Claim of Appeal, which challenged his conviction. Bristol County Docket Jan. 19, 1981. Goldman never received direct appellate review of his 1977 conviction, despite his timely filing of a claim of appeal in the trial court. B. Federal Conviction and Sentence Fifteen years later, Goldman was convicted by a jury in this federal court of one count of conspiracy to possess cocaine and one count of possession of cocaine with intent to distribute. See United States v. Goldman, 92-10229-ADM, Docket No. 91 (Clerk’s Notes of Verdict Returned); United States v. Goldman, 41 F.3d 785, 785-86 (1st Cir.1994) (“Goldman I”) (affirming conviction). Goldman’s prosecution and conviction arose after he provided cocaine to an associate who, in tape recorded conversations, had agreed to sell the cocaine to an undercover agent. See Goldman I, 41 F.3d at 786. On April 24, 1993, Judge Mazzone sentenced Goldman to 262 months, or almost twenty-two years, in prison on the drug charges. See id. For reasons not relevant to this proceeding, three days later Judge Mazzone conducted another hearing and corrected this sentence to 360 months, or thirty years, in prison. See id. In both instances, Goldman was sentenced as a Career Offender under U.S.S.G. § 4B1.1, which increases the applicable sentencing range when, among other things, an offender’s record includes “at least two prior felony convictions for either a crime of violence or a controlled substance offense.” Id.; U.S.S.G. § 4B1.1. In 1993, Goldman had two such convictions- — his 1977 Bristol County conviction for Kidnapping and Attempted Extortion and a 1976 Suffolk County conviction for Armed Robbery and Attempted Kidnapping. See Goldman 1993 Presentence Report at ¶ 79, 68 and 70. Goldman’s classification as a Career Offender increased the Guidelines Range for his sentence by seventeen to twenty years. Goldman I, 41 F.3d at 789; Presentence Report (Third Addendum) ¶ 4. The sentence of 360 months was the minimum sentence permitted under the Guidelines once the Career Offender enhancement was applied. Goldman I, 41 F.3d at 789. Without the Career Offender enhancement, the Guidelines range applicable at the 1993 sentencing would have been 121 months to 151 months, or about ten to thirteen years. If he had been sentenced at the low end of this range, Goldman would have been released no later than August 15, 2002. If sentenced at the higher end of the range, he would have been released no later than February 15, 2005. Under his current, enhanced sentence, Goldman will not be eligible for release before September, 2018. C. Prior Challenges to Federal Conviction and Sentence In his direct appeal of his 1993 conviction and sentence, Goldman raised various issues that are unrelated to the claim he presents here. See Goldman I, 41 F.3d 785 (considering Goldman’s challenges to the search of his car trunk, impeachment evidence, and the correction of his sentence). Goldman’s allegations of error were found to be unmeritorious and his conviction was affirmed. Id. at 789. The Supreme Court denied Goldman’s petition for certiorari on March 6, 1995. See Goldman v. United States, 514 U.S. 1007, 115 S.Ct. 1321, 131 L.Ed.2d 201 (1995). From 1995 to at least 1999, Goldman filed a series of postconviction motions attacking his 1993 conviction, including a § 2255 motion and two motions for relief from the final judgment denying his § 2255 motion. On April 28, 1995, Goldman filed his first motion to vacate or correct his sentence under 28 U.S.C. § 2255. See C.A. No. 95-10989 Docket Entry 1. Judge Mazzone denied Goldman’s § 2255 motion and later denied his request for a certificate of appealability. See id. Sept. 3, 1996; Feb. 24, 1997 Docket Entries. The First Circuit also refused to certify an appeal, and also denied Goldman’s petition for rehearing en banc and his motion to reinstate appeal. See id. Docket No. 22; First Circuit, Case No. 97-1018. Goldman then requested relief from final judgment, under Federal Rule of Civil Procedure 60(b), in the District Court, filing both a pro se motion on July 25, 1997 and an amended motion on March 4, 1998 with counsel. See C.A. No. 95-10989 Docket Entries. The amended motion was styled as a motion for relief from the final denial of the § 2255 motion. Judge Maz-zone denied this motion. See C.A. No. 95-10989 Sept. 29, 1999 Mem. and Order. Goldman’s attempt to appeal that decision was denied on September 14, 2000. See C.A. No. 95-10989, September 14, 2000 Docket Entry (reporting First Circuit Order). D. Challenge to 1977 State Conviction After his federal sentence was imposed in 1993, Goldman was aware of the impact of the 1977 conviction on that sentence. Almost immediately, he wrote Zalkind, his defense counsel at the 1977 kidnapping trial, to inform him of his federal sentence and inquire about the frustration of his effort to appeal his conviction in 1977. See Mar. 18, 2008 Tr. at 31; Ex. 5 (July 20, 1993 Letter from Zalkind in response to Goldman’s letter to him). While his federal case was on direct appeal in 1993 and 1994, Goldman asked his court-appointed appellate counsel, Dana Curhan, if Curhan could challenge the 1977 conviction either in Goldman’s direct appeal or in a state court motion to vacate that conviction. See Mar. 18, 2008 Tr. at 99-102 (Test, of Curhan); Mar. 19, 2008 Tr. at 84 (Test, of Goldman). Curhan declined. He believed that challenging the conviction in the federal appeal was not permissible because only the state court could vacate that conviction and attempting to vacate the conviction in state court was beyond the scope of his appointment. Id. Mar. 18, 2008 Tr. at 100-02 (Test, of Curhan). In approximately 1996, after Goldman’s direct appeal and first § 2255 motion had been denied, he contacted a private criminal defense attorney, Martin Leppo, and asked him to try to vacate his 1977 conviction. Mar. 19, 2008 Tr. at 88 (Test, of Goldman). Leppo initially agreed to look into the possibility of vacating the Bristol County conviction. Id. Leppo reviewed files Goldman sent him over an eighteen-month period. Id. at 89-90; Ex. 22 (Aug. 27, 2002 Aff. of Martin Leppo). However, because Goldman was not able to raise the funds necessary to hire him, Leppo took no action to attempt to vacate the 1977 conviction. See Mar. 19, 2008 Tr. at 88 (Test, of Goldman); Ex. 22 (affirming that after an eighteen-month period of communication, Goldman could not work out the financial arrangements with Leppo). In about 1997, Goldman attempted to retain another attorney, James Creedon, to challenge the 1977 conviction. Mar. 19, 2008 Tr. at 91 (Test, of Goldman). This effort too was unsuccessful. In 1998, Goldman’s family hired an attorney for Goldman, Kevin O’Dea. See Mar. 18, 2008 Tr. at 85 (Test, of O’Dea); Mar. 19, 2008 Tr. at 91-92 (Test, of Goldman). In 1998 and 1999, O’Dea prepared to file a motion for a new trial in the state court. See Mar. 18, 2008 Tr. at 84-87. On April 14, 2000, O’Dea filed a motion in Bristol Superior Court for a new trial on the Lopes kidnapping charge on the grounds that Goldman had been improperly denied a direct appeal of his 1977 conviction. See Ex. 8 (Bristol Superior Court New Trial Motion). The motion was heard by Bristol Superior Court Justice Daniel F. Toomey, who found it meritorious. See Ex. 9, Commonwealth v. Goldman, Nos. 54316, 54318 at 7 (Mass.Sup.Ct. October 15, 2001). In granting Goldman’s motion for a new trial, Justice Toomey described the issue before him as “the vexing question of the remedy, if any, for the defendant’s faultless loss of his right to appellate review of his [1977] conviction.” Id. at 3. Justice Toomey noted that, following his 1977 conviction, Goldman had filed pro se motions for transcripts and for appointment of counsel, and a timely pro se claim of appeal, but that these motions were all denied by Justice Brogna in 1977 in part because he “considered] the claim of appeal to be completely frivolous.” Id. at 2, 3. Justice Toomey concluded: defendant’s predicament is that, through no fault of his own and contrary to his wishes expressed consistently since the time of this conviction, he cannot be afforded the appellate review to which he was, and is, entitled. Under these circumstances, “justice may not have been done,” Mass. R.Crim. P. 30(b), and a new trial is an appropriate, and perhaps the only, way to ensure that the interests of justice — the defendant’s personal interest and the Commonwealth’s institutional interest — are realized. Id. at 4-5. By 2001, a transcript of the 1977 trial could not be prepared. Justice Brogna’s 1977 decision denying Goldman’s request for a transcript made a record of the state trial unavailable and thus prevented the reinstatement of Goldman’s appeal. Id. at 4. Therefore, Justice Toomey granted Goldman’s motion for a new trial. See id. at 4-7. State prosecutors later dismissed the case citing the insufficiency of the available evidence after twenty-five years. See Sept. 5, 2002 Dismissal by Prosecution (Pet. Ex. 9). E. Challenge to Federal Sentence Based on Vacatur of State Conviction Goldman’s initial § 2255 motion and motions for relief from judgment did not challenge his federal Career Offender enhancement based on the alleged invalidity of his 1977 conviction. See generally C.A. No. 95-10989 Sept. 29, 1999 Mem. and Order (describing the § 2255 and Rule 60(b) motions, which challenged various aspects and consequences of the government’s threat to use prior bad act evidence at trial to impeach Goldman). There was good reason for this. Prior to the filing of Goldman’s first § 2255 motion in 1995, the Supreme Court had explained in Custis, that a federal petitioner seeking to challenge a sentence enhancement based on a predicate state conviction should first attack that conviction in state court and, only after he is successful there, “apply for reopening of any federal sentence enhanced by the state sentence.” 511 U.S. at 497, 114 S.Ct. 1732. Following Custis’s direction, Goldman and his attorney were evidently reserving a possible challenge to his Career Offender enhancement until after Goldman sought and received vacatur of his 1977 kidnapping conviction in state court. This approach was reasonable because Goldman’s § 2255 motion was filed before the April 24, 1996 passage of AEDPA. Therefore, Goldman, and later his attorney, would have reasonably believed that Goldman could move to reopen his federal sentencing by filing a second § 2255 motion if and when he vacated his 1977 conviction. However, AEDPA, among other things, imposed a one-year statute of limitations on § 2255 motions and prohibited federal prisoners from filing second or successive § 2255 motions except in very limited circumstances. See 110 Stat. 1214 § 105 (codified at 28 U.S.C. § 2255(f)-(h)). AEDPA’s limit on second motions had the effect, until now, of depriving Goldman of access to the relief contemplated by the Supreme Court in Custis. On February 12, 2002, within one year of the state court decision granting him a new trial, Goldman moved in federal court to reopen his 1993 federal sentencing. See Goldman v. United States, C.A. No. 95-10989 (D. Mass. April 5, 2002) (“Mazzone Denial of Mot. to Reopen Sentence”) at 2. As described earlier, this was the course of action the Supreme Court in Custis indicated would be appropriate if a state sentence had been vacated. See Custis, 511 U.S. at 497, 114 S.Ct. 1732. However, Judge Mazzone construed Goldman’s motion as a second or successive § 2255 motion, which under AEDPA could not be considered without the leave of the First Circuit. Mazzone Denial of Mot. To Reopen Sentence at 3. The Court of Appeals affirmed. Goldman v. United States, C.A. No. 02-1593 (1st Cir. Oct. 21, 2002) (“Goldman II”). Accordingly, Goldman sought leave from the First Circuit to file a second § 2255 motion. Goldman v. United States, C.A. No. 02-2322 (1st Cir. Nov. 7, 2002) (“Goldman III”). The First Circuit denied leave to file, explaining that, under AEDPA, Goldman was required to “make a prima facie showing that his present § 2255 motion contains ‘newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense.’ ” Id. (quoting 28 U.S.C. § 2255(h)(1)). Since Goldman claimed innocence of a state crime that operated to enhance his sentence rather than innocence of the crime that constituted his federal conviction, the First Circuit found him ineligible under AEDPA to file a second § 2255 motion. Id. Barred from proceeding pursuant to § 2255, Goldman next filed the instant § 2241 petition on December 27, 2004. III. ANALYSIS A. Goldman’s Claim Ordinarily, a petitioner who has had his sentence enhanced based on a prior conviction which is later vacated is entitled to a reduction of his sentence. See Johnson v. United States, 544 U.S. 295, 303, 125 S.Ct. 1571, 161 L.Ed.2d 542 (2005) (noting that Supreme Court cases applying the Career Offender and Armed Career Criminal federal enhancement provisions “assume.. that a defendant given a sentence enhanced for a prior conviction is entitled to a reduction if the earlier conviction is vacated”); In re Davenport, 147 F.3d 605, 609 (7th Cir.1998) (attack on the validity of a Career Offender enhancement goes “to the fundamental legality of [the] sentence”); Mateo v. United States, 398 F.3d 126, 134 & nn. 6-7 (1st Cir.2005) (citing cases that have permitted collateral attacks on federal sentences following state court vacatur of predicate convictions that underlay Sentencing Guidelines enhancements); id. at 133 (affirming allowance of § 2255 motion based on subsequent state court vacatur of a conviction used to enhance a federal sentence); United States v. Pettiford, 101 F.3d 199 (1st Cir.1996) (same). A prisoner is deemed entitled to such relief because his sentence was enhanced without a valid “factual basis,” yet he remains incarcerated pursuant to that sentence. Dretke v. Haley, 541 U.S. 386, 397, 124 S.Ct. 1847, 158 L.Ed.2d 659 (2004) (Stevens, J., dissenting on other grounds). Therefore: it follows inexorably that [he] has been denied due process of law. Thompson v. Louisville, 362 U.S. 199, 80 S.Ct. 624, 4 L.Ed.2d 654 (1960); Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). And because that constitutional error clearly and con-cededly resulted in the imposition of an unauthorized sentence, it also follows that the [petitioner] is a ‘victim of a miscarriage of justice,’ Wainwright v. Sykes, 433 U.S. 72, 91, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), entitled to immediate and unconditional release. Id. at 398, 124 S.Ct. 1847. Although Justice Stevens was commenting on the injustice of continued incarceration of a state prisoner whose sentence was erroneously enhanced under a state habitual offender statute, the First Circuit has twice indicated that a sentencing enhancement under the Federal Sentencing Guidelines that is predicated on a subsequently vacated state court conviction also constitutes the type of “miscarriage of justice” properly raised on collateral attack. See Mateo, 398 F.3d at 136; Pettiford, 101 F.3d at 201. The government agrees that the granting of Goldman’s motion for a new trial in state court constituted a “vacatur” of his predicate state conviction. See, e.g., Gov’t Opp. to § 2241 Petition at 4 (noting that “the petitioner’s state offense was vacated”). The First Circuit has held that when a petitioner obtains a state court order invalidating a predicate state court conviction, his federal sentence is subject to collateral attack under § 2255 as long as the state conviction was reversed “for errors of law or because constitutionally invalid,” rather than “ ‘for reasons unrelated to innocence or errors of law ... [such as] to restore civil rights or remove the stigma associated with a criminal conviction.’ ” Mateo, 398 F.3d at 134-35 (quoting U.S.S.G. § 4A1.2, cmt. n. 10). Although the state court noted that in considering Goldman’s motion for a new trial, it “had no appellate function and [did] not, therefore, address whether or not the trial judge’s denial of defendant’s motions for transcript and for appellate counsel was error,” the court did find that the denial of Goldman’s right to a direct appeal constituted a “miscarriage of justice” sufficient to require a new trial under Massachusetts Rule of Criminal Procedure 30(b). See Ex. 9 (Commonwealth v. Goldman, Nos. 54316, 54318, 2001 WL 1229148 (Mass.Sup.Ct. October 15, 2001)) at 5, n. 2. In addition, the court based its decision to grant a new trial on the fact that in 1977 Justice Brogna “obstructed appellate review of his own doings at the two week bench trial by concluding that defendant was not to have a transcript because his proposed appellate claims were ‘frivolous.’ ” Id. “There is, at least, the appearance of a self-serving animus in such rulings,” the court noted. Id. These state court findings made it clear that the granting of a new trial was based on perceived errors of law and constitutional errors that improperly deprived Goldman of his right to appeal. See Ma-teo, 398 F.3d at 136-37 (evaluating the basis of a state court vacatur order and noting that “for purposes of Guidelines analysis, a federal court may and sometimes must, in appropriate circumstances, identify the reason for the state action in order to determine whether a prior sentence should be counted”). Justice Too-mey’s decision to grant Goldman a new trial was based on serious constitutional and statutory errors concerning the 1977 conviction. See Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963) (finding equal protection violation in state court’s denial of appointed counsel for first appeal based on court’s evaluation of likely success of appeal); Mass. Gen. Laws, ch. 278, § 28, Mass. Gen. Laws, ch. 211A, § 10; Commonwealth v. Frank, 425 Mass. 182, 680 N.E.2d 67, 69 n. 1 (1997) (noting the statutory right to direct appeal of a criminal conviction in Massachusetts). As Justice Toomey concluded, a “miscarriage of justice” resulted from the failure of Justice Brogna to permit Goldman’s requested direct appeal and not from some reason “unrelated to innocence or errors of law ... [such as] to restore civil rights or remove the stigma associated with a criminal conviction.’ ” Mateo, 398 F.3d at 134-35; Therefore, Justice Toomey’s order is the type of vacatur that would justify Goldman’s request for resentencing on his 1993 federal conviction under Mateo and Johnson if § 2255 were available to him and his claim were not defaulted. However, the government asserts that § 2255 is not now available to Goldman and his claim is defaulted. As discussed below, the government is correct in these contentions. Nevertheless, this is not the end of the inquiry. In certain circumstances § 2241 provides a basis for granting relief to a federal prisoner for whom § 2255 is not available. In this case, Goldman has demonstrated that he is, within the meaning of the applicable law, “actually innocent” of the charge that he participated in a kidnapping of Lopes. Therefore, he is entitled to review of his claim pursuant to § 2241. In addition, Goldman’s meritorious claim of such “actual innocence” excuses his procedural default. Therefore, Goldman is entitled to review and relief under § 2241. B. Obstacles to Relief 1. Access to the court Goldman’s access to this court is limited because a prisoner seeking to challenge collaterally his federal sentence must rely primarily upon 28 U.S.C. § 2255 for relief. See United States v. Barrett, 178 F.3d 34, 50 (1st Cir.1999). Here, Goldman is unable to proceed under § 2255 because he previously brought a § 2255 challenge on other grounds, and because the First Circuit found that a second § 2255 challenge addressing his Career Offender status was barred by AEDPA’s statutory limitations on second § 2255 motions. See supra § 11(E); Goldman II, at 1. Goldman, therefore, attempts to raise his claims here in a petition for habeas corpus under § 2241. However, § 2255 sets strict limits on the availability of § 2241 to federal prisoners: ‘An application for a writ of habeas corpus [under § 2241] in behalf of a prisoner who is authorized to apply for relief by motion pursuant to [§ 2255], shall not be entertained if it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced him, or that such court has denied him relief, unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention.’ Barrett, 178 F.3d at 49 (second alteration in original) (quoting 28 U.S.C. § 2255(e)). Under this “savings clause,” a petitioner, like Goldman, who has already applied for and been denied relief under § 2255 may only challenge the validity of his detention under § 2241 if § 2255 is “inadequate or ineffective.” 28 U.S.C. § 2255; Barrett, 178 F.3d at 49-50. A petitioner’s inability to meet the procedural requirements of § 2255 alone is not sufficient to render § 2255 “inadequate or ineffective” and permit resort to § 2241. Barrett, 178 F.3d at 50. The First Circuit has not fully defined all of the circumstances that might allow a federal prisoner to utilize § 2241 to challenge his detention. See id. at 52 (“it is not necessary in this case to articulate those circumstances precisely-we leave that task for another day”); Sustache-Rivera v. United States, 221 F.3d 8, 17 (1st Cir.2000) (“[N]or do we need to resolve the meaning of the savings clause .... ”). However, in Barrett the First Circuit stated that “habeas corpus relief under § 2241 remains available for federal prisoners in limited circumstances,” 178 F.3d at 51, and that “[a] claim of actual innocence-defined as factual innocence, not mere legal insufficiency-will have a mechanism for review.” Id. at 57. In Barrett and a subsequent case, the First Circuit has further confirmed that § 2241 would be available to petitioners raising claims of actual innocence by precluding access to § 2241 only after finding that a petitioner did not “raise a question of actual innocence.” Id. at 52; Sustache-Rivera, 221 F.3d at 19 (same). As discussed below, this court finds that Goldman has presented a meritorious claim of actual innocence. Therefore, he is entitled to review pursuant to § 2241 unless his claims are defaulted and that default is not excused. Although review under § 2241 may be available in other circumstances absent a showing of actual innocence, it is not necessary to decide what those circumstances might be in this case. Cf. Sustache, 221 F.3d at 17. As discussed below, Goldman’s claim is procedurally defaulted. However, his compelling showing of actual innocence excuses that default and makes review under § 2241 available. Goldman is also entitled to relief under § 2241. As discussed earlier, Goldman’s request for resentencing based on the va-catur of his predicate state court conviction would be meritorious under Pettiford and Mateo if it could be brought under § 2255. When § 2241 is available, it operates to provide relief in the same circumstances as § 2255 if it were available. See Hill v. United States, 368 U.S. 424, 427, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962) (noting that § 2255 is “intended simply to provide ... a remedy exactly commensurate with that which had previously been available by habeas corpus [under § 2241]”); 3 Charles Alan Wright, Nancy J. King, Susan R. Klein, Sarah N. Welling, Federal Practice & Procedure (Criminal) § 591 (3d. ed. 2008) (“[Precedents under § 2255 and under the habeas statutes often may be used interchangeably.”). Therefore, because Goldman’s claim would be meritorious if it could be reviewed under § 2255, it is meritorious under § 2241 since review is available under that statute. In this case, § 2241 serves “the essential function of habeas corpus ... [of] ‘givfing] a prisoner a reasonable opportunity to obtain a reliable judicial determination of the fundamental legality of his conviction and sentence.’ ” Barrett, 178 F.3d at 51 (quoting In re Davenport, 147 F.3d 605, 609 (7th Cir.1998) (third alteration in original)). Because Pettiford and Mateo held that a sentence based on a state conviction that is subsequently vacated is legally erroneous and should be corrected through collateral attack, see Mateo, 398 F.3d at 134; Pettiford, 101 F.3d at 201, relief under § 2241 is in this case permissible and justified. 2. Procedural Default Goldman’s petition faces a final obstacle — procedural default. In the context of § 2255 and § 2254 petitions, the doctrine of “procedural default” bars a court from considering any claim in a postconviction action that was not presented in prior proceedings. See, e.g., Oakes v. United States, 400 F.3d 92, 95 (1st Cir.2005) (“If a federal habeas petitioner challenges his conviction or sentence on a ground that he did not advance on direct appeal, his claim is deemed procedurally defaulted.”) Bousley v. United States, 523 U.S. 614, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998) (petitioner generally may not raise a previously available claim for the first time on § 2255 review); McCleskey v. Zant, 499 U.S. 467, 492-97, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991) (same regarding claims not raised in prior petition). The First Circuit has held that this procedural default doctrine applies equally to § 2241 petitions. See Sustache-Rivera, 221 F.3d at 17 (stating that the default doctrine discussed in Bousley applies to § 2241 petitions). The government argues that Goldman’s claims under § 2241 are procedurally defaulted because he failed to raise them earlier, either on appeal, in a prior § 2255 challenge, or simply at an earlier time. However, “[a] procedural default is not necessarily a total bar to federal habe-as relief.” Oakes, 400 F.3d at 95. Procedural default does not strip a habeas court of jurisdiction to consider defaulted claims. Rather “it provides only a strong prudential reason, grounded in ‘considerations of comity and concerns for the orderly administration of criminal justice,’ not to pass upon a defaulted constitutional claim presented for federal habeas review.” Dretke, 541 U.S. at 393, 124 S.Ct. 1847 (quoting Francis v. Henderson, 425 U.S. 536, 538-39, 96 S.Ct. 1708, 48 L.Ed.2d 149 (1976)). Therefore, “[notwithstanding such a default, a federal habeas petition will be allowed .to go forward if the petitioner can show either (i) that there is cause for the default and actual prejudice resulting from it, or (ii) that he is actually innocent .... ” Oakes, 400 F.3d at 95; Dretke, 541 U.S. at 393, 124 S.Ct. 1847 (noting the general recognition of “an equitable exception to the [procedural default] bar when a habeas applicant can demonstrate cause and prejudice for the procedural default” or actual innocence). Under this rule, a showing of “cause and prejudice” or “actual innocence” excuses procedural default and permits a court to decide the merits of otherwise defaulted claims. See Dretke, 541 U.S. at 395, 124 S.Ct. 1847 (describing the excuse of procedural default as a “gateway” to consideration of defaulted claims). Goldman has presented a claim of actual innocence. However, the Supreme Court has instructed that “a federal court faced with allegations of actual innocence, whether of the sentence or of the crime charged, must first address all non-defaulted claims for comparable relief and other grounds for cause to excuse the procedural default.” Dretke, 541 U.S. at 394-95, 124 S.Ct. 1847 (expressing concern that permitting consideration of actual innocence in that case without first considering other ways of reaching the merits of the petitioner’s claims would “license district courts to riddle the cause and prejudice standard with ad hoc exceptions”). In light of the Supreme Court’s instruction in Dretke, this court must first evaluate whether Goldman has shown cause and prejudice sufficient to excuse any procedural default of his claims, before addressing his claim of actual innocence. This is a close question. However, the court concludes that Goldman has not shown sufficient cause to excuse his procedural default. Therefore, the court is deciding his actual innocence claim. a. Cause and Prejudice The First Circuit has explained that to establish cause, a petitioner must show “that some external impediment, such as government interference or the reasonable unavailability of the factual or legal basis for a claim, prevented it from being raised earlier.” Andiarena v. United States, 967 F.2d 715, 718 (1st Cir.1992) (citing McCleskey, 499 U.S. at 497, 111 S.Ct. 1454). To establish prejudice on collateral review, a petitioner must establish that the error complained of had “substantial and injurious effect or influence.” Sustache, 221 F.3d at 18; see also Ellis v. United States, 313 F.3d 636, 643-44 (1st Cir.2002) (same). Alternatively, “if a ha-beas petitioner can meet the prejudice standard needed to establish ineffective assistance under Strickland [v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ], then the prejudice standard under the ‘cause and prejudice’ showing to excuse a procedural default is also met.” Lynch v. Ficco, 438 F.3d 35, 49 (1st Cir.2006). In this case, it is clear that the error complained of — Goldman’s sentencing as a Career Offender despite the invalidity of one of his essential prior convictions — had “substantial and injurious effect.” The government does not dispute that Goldman’s Career Offender status increased his sentence by at least seventeen years. This constitutes a “substantial and injurious effect or influence” and meets the Strickland standard. See Glover v. United States, 531 U.S. 198, 203, 121 S.Ct. 696, 148 L.Ed.2d 604 (2001) (holding that there is no baseline or quantifiable increase in a defendant’s sentence that must be shown to establish prejudice under Strickland). With regard to cause, Goldman argues that the legal landscape at the time of his federal sentencing, direct appeal, and 1995 § 2255 motion either provide adequate cause to explain his failure to challenge his Career Offender status earlier or indicate that no procedural default exists since he had no prior opportunity to raise these claims. See Pet. Trial Br. at 14-19. Goldman is correct that, with only one possible exception for the complete denial of appointed counsel, see Johnson, 544 U.S. at 303-04, 125 S.Ct. 1571, a prisoner’s options are extremely limited with regard to when he can challenge the validity of predicate state convictions used to enhance a federal sentence. As explained earlier, in Custis the Supreme Court held that a federal defendant had no right to challenge the validity of predicate convictions during a federal sentencing hearing. 511 U.S. at 488, 497, 114 S.Ct. 1732. The Court emphasized that a defendant attempting to mount such an attack must instead “apply for reopening of any federal sentence enhanced by the state sentences” after he is “successful in attacking these state sentences” in state court or in a habeas petition challenging the predicate state conviction. Id. at 497, 114 S.Ct. 1732. Earlier in 1994, shortly before the Supreme Court’s decision in Custis, the First Circuit had ruled in Isaacs that the Sentencing Guidelines precluded collateral review at federal sentencing of prior convictions used to enhance a federal sentence, and that the Constitution mandated such collateral review only if defendant claimed a “structural error” in his predicate conviction. 14 F.3d at 108-110, 112. In Daniels v. United States, 532 U.S. 374, 121 S.Ct. 1578, 149 L.Ed.2d 590 (2001), the Supreme Court clarified that a defendant could not challenge a predicate state conviction used to enhance a federal sentence in any federal sentencing proceeding or in a § 2255 motion without first successfully challenging the predicate state conviction in state court or in a federal habeas petition regarding the state conviction. Id. at 382, 121 S.Ct. 1578. The Court again held that if any state court or habeas challenge to the predicate conviction was successful, “the defendant may then apply for reopening of his federal sentence.” Id. Based on these precedents, Goldman argues that it was not permissible for him to challenge his 1977 kidnapping conviction in federal court until after he successfully challenged that conviction in state court and, therefore, his failure to raise claims about his 1977 conviction in prior proceedings either does not constitute a procedural default or is excused by adequate cause. See, e.g., Goldman Sept. 15, 2006 Supp. Mem. at 6-9. The First Circuit’s 1994 decision in Isaacs, which required that a defendant challenge state convictions in state court rather than federal court, predated Goldman’s direct appeal. Goldman’s appointed appellate counsel, Curhan, testified in these proceedings that at the time he filed Goldman’s direct appeal, Goldman asked him to raise a challenge to the 1977 conviction. However, Curhan understood that precedent prohibited raising such a claim prior to state court vacatur of the relevant conviction and presentation of that vacatur to the district court. Curhan told Goldman that his appointment as appellate counsel did not authorize him to go to state court to try to vacate the 1977 conviction. See Mar. 18, 2008 Tr. at 99, 101. Curhan also told Goldman that he was unable to raise the issue on direct appeal because it had not been presented to the district court. Id. at 100-01. When a claim is properly not raised on direct appeal, a defendant’s failure to present that claim does not constitute a procedural default. See Massaro v. United States, 538 U.S. 500, 503-09, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003). In Massa-ro, the Supreme Court ruled that failure to raise an ineffective-assistance-of-counsel claim on direct appeal does not constitute procedural default or bar consideration of such a claim in a § 2255 proceeding because such ineffectiveness claims are not cognizable on direct appeal and are appropriately brought only later in a § 2255 proceeding. Id. at 503, 123 S.Ct. 1690. Similarly, here, the Isaacs decision made clear that Goldman’s challenge to his 1977 conviction could properly be raised only after he had successfully challenged his conviction in state court. Therefore, Cu-rhan’s reliance on that decision at the time of Goldman’s direct appeal was reasonable. Similarly, prior to Goldman’s filing of his first § 2255 motion in 1995, the Supreme Court’s 1994 decision in Custis made clear that the appropriate place and time to challenge the use of his 1977 conviction as a federal sentencing enhancement was in a motion to reopen Goldman’s federal sentence after he successfully challenged his 1977 conviction in state court. Custis, 511 U.S. at 497, 114 S.Ct. 1732. At the time he filed his first § 2255 motion in 1995, he had not yet successfully challenged his 1977 conviction in state court and, therefore, a “fact” necessary to his § 2255 motion was “reasonably unavailable.” See Johnson, 544 U.S. at 304-07, 125 S.Ct. 1571 (holding that vacatur of predicate conviction was “fact” necessary for filing § 2255 motion based on such vacatur). Goldman had no incentive to include his unripe claim concerning that conviction in his 1995 § 2255 motion because, prior to the passage of AEDPA in 1996, he expected that the proper course would be to file a second § 2255 motion after obtaining vacatur of his state court conviction. The First Circuit’s decision in Isaacs and the Supreme Court’s decision in Cus-tis, therefore, provide sufficient “cause” to excuse Goldman’s failure to attack his 1977 conviction in his direct appeal or his 1995 first § 2255 motion. These two 1994 decisions predated Goldman’s appeal and § 2255 motion, and directed that it was not appropriate for a federal defendant to challenge predicate state convictions that enhanced a federal sentence before successfully attacking those convictions in state court. See Custis, 511 U.S. at 497, 114 S.Ct. 1732; Isaacs, 14 F.3d at 108-110. The decisions, therefore, created the “reasonable unavailability of the factual or legal basis for [Goldman’s] claim” at the time of his direct appeal and first § 2255 motion and the absence of that factual basis excuses any procedural default caused by Goldman’s failure to address his 1977 conviction in those proceedings. Andiarena, 967 F.2d at 718. However, Goldman must still show cause for failing to raise his claim regarding the 1977 conviction at his 1993 sentencing. See Prou v. United States, 199 F.3d 37, 47 (1st Cir.1999) (affirming that “a defendant’s failure to object [to an issue] at sentencing ... constitutes a procedural default, leaving the issue open to collateral attack only if the defendant can show cause and prejudice”); United States v. LaValle, 175 F.3d 1106, 1109 (9th Cir.1999) (rejecting government’s cause and prejudice challenge to petitioner’s § 2255 motion based on state vacatur of a predicate conviction because the petitioner had challenged the predicate conviction at his 1994 sentencing hearing); United States v. Maybeck, 23 F.3d 888, 892 (4th Cir.1994) (holding that the cause and prejudice standard applied to defendant’s failure to object to his Career Offender classification at sentencing). Goldman has not made this showing. Goldman does not claim that he raised any objection to the validity of his 1977 conviction during his 1993 federal sentencing proceeding. In any event, Goldman’s 1993 Sentencing Memorandum demonstrates that he was aware at that time of the impact of the 1977 kidnapping conviction on his sentence, but did not challenge the validity of that conviction. Goldman’s 1993 Sentencing Memorandum discussed his 1977 kidnapping conviction solely to argue that it was part of the same “scheme or plan” as his other predicate conviction and, therefore, should not be counted separately for Career Offender purposes. See United States v. Goldman, No. 92-10229-ADM, Def. Frank Goldman’s Objections to the PSR and Sentencing Mem. at 18-21. Goldman’s state convictions were discussed in depth at his sentencing hearing on April 24, 1993. See United States v. Goldman, No. 92-10229-ADM, Apr. 24, 1993 Sentencing Tr. at 8-15. Goldman’s counsel again did not suggest that the 1977 kidnapping conviction was invalid, only that it should be considered part of the same “scheme or plan” as the other predicate offense or, in the alternative, that the sentencing judge should downwardly depart because Goldman’s criminal history significantly overstated the likelihood that he would commit other crimes. Id. The transcript of the sentencing hearing and Goldman’s Sentencing Memorandum confirm that Goldman failed to raise at his original sentencing that his 1977 kidnapping conviction was an invalid basis for a Career Offender enhancement. Although the First Circuit’s January 25, 1994 decision in Isaacs prohibited defendants from raising such claims during federal sentencing proceedings, the Isaacs decision was issued after Goldman’s sentencing in 1993. The existence of the Isaacs decision and the First Circuit’s analysis in it demonstrate that before Isaacs defendants in the First Circuit and elsewhere were presenting challenges to predicate convictions during federal sentencing proceedings. See Isaacs, 14 F.3d at 107 (describing how appeal arose after defendant successfully challenged the validity of a predicate conviction during his sentencing hearing); id. at 109 (discussing how, at the time of the Isaacs decision, appellate courts were divided as to whether the Sentencing Guidelines permitted challenges to predicate convictions during federal sentencing proceedings). When a claim has not yet been precluded by relevant case law and, indeed, is being raised by other defendants, a petitioner cannot show that such a claim was reasonably unavailable to him as is necessary to establish cause to excuse procedural default. See Bousley, 523 U.S. at 622, 118 S.Ct. 1604 (rejecting contention that a § 2255 claim was unavailable and provided cause when “at the time of [the] plea, the Federal Reporters were replete with cases involving” the same claim raised in the § 2255 motion); Engle v. Isaac, 456 U.S. 107, 134, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982) (“Where the basis of a ... claim is available, and other defense counsel have perceived and litigated that claim, the demands of comity and finality counsel against labeling alleged unawareness of the objection as cause for a procedural default”). Goldman’s counsel could have challenged the validity of the 1977 conviction at the 1993 sentencing, but did not. Goldman has not shown cause to excuse this default and, therefore, his claim based on his subsequent challenge to the 1977 conviction is defaulted. See, e.g., Prou, 199 F.3d at 47 (excusing failure to object at sentencing only because petitioner showed ineffective assistance of counsel at sentencing sufficient to establish cause); United States v. Frady, 456 U.S. 152, 167-68, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982) (barring collateral consideration of a claim defaulted by defendant’s failure to object contemporaneously at trial because such failure constituted a “double procedural default” not excused by a showing of cause and prejudice). The government argues that even if Goldman’s failure to challenge the 1977 conviction at his 1993 sentencing hearing did not create a procedural default, Goldman’s claim would still be defaulted by his failure to “diligently pursue vacatur of his state court conviction once he was aware that the conviction had the effect of increasing his federal sentence,” as is required of prisoners filing § 2255 motions by Johnson v. United States, 544 U.S. 295, 125 S.Ct. 1571, 161 L.Ed.2d 542 (2005). See Gov’t Trial Brief at 7; Gov. Cause and Prej. Mem. at 2. In Johnson, the Supreme Court held that a claim challenging Career Offender status is timely under § 2255’s one-year statute of limitations only if it is filed within one year of vacatur of a state conviction and the petitioner sought diligently that vacatur either after judgment entered on his federal conviction or after the April 24, 1996 passage of AEDPA which, among other things, imposed a one-year statute of limitations on § 2255 motions. See Johnson, 544 U.S. at 311, 125 S.Ct. 1571. In support of the diligence requirement, the Court found that the time limits in § 2255 were designed by Congress to promote finality and limit federal prisoners’ ability to attack their federal sentences. Id. at 309-10, 125 S.Ct. 1571. It noted that under § 2255, as amended by AED-PA, the one-year limitations period could restart from the date a new fact “could have been discovered through the exercise of due diligence.” Id. at 300, 125 S.Ct. 1571 (quoting 8 U.S.C. § 2255(6)(4)). The Court, therefore, found it incompatible with § 2255 to permit a petitioner to file a § 2255 motion within one year of a state vacatur “no matter how long he may have slumbered before starting the successful [vacatur] proceeding.” Id. at 307, 125 S.Ct. 1571. The Court found in Johnson that the petitioner had failed to show the necessary diligence when: [the petitioner] failed to attack the predicate for enhancement by filing his state habeas petition until February 1998, more than three years after entry of judgment in the federal case. Indeed, even if we moved the burden of diligence ahead to the date of finality of the federal conviction or to AEDPA’s effective date two days later, Johnson would still have delayed unreasonably, having waited over 21 months. Id. at 311, 125 S.Ct. 1571. The petitioner in Johnson “offered no explanation for this delay, beyond observing that he was acting pro se and lacked the sophistication to understand the procedures.” Id. Finding that “pro se representation alone or procedural ignorance” cannot “excuse ... prolonged inattention when a statute’s clear policy calls for promptness,” the Court found Johnson’s efforts at vacatur “fell far short of reasonable diligence” necessary to permit access to § 2255. Id. Goldman did bring a motion to reopen his 1993 federal sentencing within one year of the state court vacatur of his state court conviction. See Goldman v. United States, C.A. No. 95-10989, Feb. 12, 2002 Docket Entry. However, he did not seek vacatur until four years after the passage of AED-PA and nearly seven years after the entry of judgment in his federal case. The government argues that this delay establishes an additional ground for finding Goldman’s challenge to his Career Offender enhancement procedurally defaulted. Some facts support the contention that Goldman’s claim is barred because he did not act with the diligence required by Johnson. The period of time Goldman waited before filing his state court motion for a new trial exceeds the amount of time found to be unreasonable in Johnson. In addition, the explanation Goldman offers for this delay is similar to that found insufficient in Johnson, including that he did not have an attorney. Johnson, 544 U.S. at 311, 125 S.Ct. 1571. Goldman suggests that any delay on his part in seeking vacatur of his 1977 convictions was due to his difficulties in finding an attorney and the inaction of those he expected would represent him. As described earlier, Goldman attempted to hire a private attorney, Leppo, in about 1996, to try to vacate his Bristol County convictions. Mar. 19, 2008 Tr. at 88