7th Circuit rejects sentence appeal as ‘way short of due diligence’

The 7th Circuit Court of Appeals has affirmed the denial of a man’s claim that he is entitled to resentencing, concluding that his request was much too late.   

After being sentenced in 2003 to 360 months for a serious drug crime, Tyrus McNair contested the calculation of his sentencing guidelines range that placed him in criminal history category II based on his 1992 conviction in Indiana for driving without a license. McNair asserted that his prior conviction was invalid and that he should be in Category I, which would have produced a range of 292 to 365 months, but the district court declined to entertain a collateral attack on the state conviction.

After several failed attempts to dispute the state conviction, McNair prevailed in 2017. He came back to federal court arguing he was entitled to be resentenced, citing Custis v. United States, 511 U.S. 485 (1994 ) and Johnson v. United States, 544 U.S. 295 (2005), but the district judge dismissed McNair’s application as an unauthorized successive collateral attack.

Specifically, the court read Unthank v. Jeff, 549 F.3d 534 (7th Cir. 2008)  and Purvis v. United States, 662 F.3d 939 (7th Cir. 2011) to hold that Panetti v. Quarterman, 551 U.S. 930 (2007) does not apply to a claim based on a state court’s vacatur of a criminal conviction. But the 7th Circuit Court of Appeals disagreed in a Monday decision.

“The district judge believed that Unthank and Purvis produce a conflict among the circuits. It should be clear by now that they do not,” Circuit Judge Frank Easterbrook wrote for the 7th Circuit. “We agree with our colleagues on the Fourth, Tenth, and Eleventh circuits that Panetti governs the use of §2255 to request resentencing following a state court’s vacatur of a conviction that had increased the federal sentence.”

The 7th Circuit noted that does not mean, however, that McNair is entitled to a remand. By the standard of time set in Johnson to request relief, the 7th Circuit found that McNair falls “way short of due diligence.”

Johnson tells us that the need for diligent action begins on the date of judgment — which for McNair is July 22, 2003. He first asked the state judiciary for relief in July 2007, when he filed in the state criminal case what he styled a ‘Motion for Writ of Error Coram Nobis’. That’s already four years, a delay Johnson holds is excessive,” the 7th Circuit wrote. “A state magistrate denied this motion, and McNair did not appeal. For the next 9½ years he did nothing in state court.

“Early in 2017 a lawyer entered an appearance for McNair and filed a new petition asking the state judiciary to act. Within a week the state judge vacated the conviction, on the prosecutor’s confession of error. By the time McNair came back to federal court in April 2017, almost 14 years had passed since the event that, per Johnson, requires diligent action. That is as undiligent as can be,” Easterbrook wrote.

Observing that ignorance of the law does not justify tolling the one-year limitations period in §2255(f), the 7th Circuit concluded that it couldn’t see why legal ignorance should be a better excuse if proposed as a substitute for diligence.

Johnson sets the starting date for action, and 14 years is not diligent. It follows that the district court’s decision must be affirmed, though not for that court’s reason,” it concluded in Tyrus McNair v. USA, 18-2541.

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