Leroy Nolan v. United States of America

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-2162
L EROY N OLAN ,
Petitioner-Appellant,
v.
U NITED S TATES OF A MERICA ,
Respondent-Appellee.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Western Division.
No. 01 C 50393—Philip G. Reinhard, Judge.
____________
A RGUED J UNE 6, 2003—D ECIDED F EBRUARY 18, 2004
____________
Before R IPPLE , K ANNE , and D IANE P. W OOD , Circuit
Judges.
D IANE P. W OOD , Circuit Judge. Leroy Nolan is trying to
pursue a motion under 28 U.S.C. § 2255, but he has been
blocked at the doorway by the one-year statute of limita-
tions that applies to such motions. He realizes that this is a
formidable problem, which he can avoid only if this court is
willing to find that the deadline has been equitably tolled
in his case. Limitations periods to one side, he would like to
show that he received constitutionally ineffective counsel
and that he was improperly convicted of violating 18 U.S.C.
§ 924(c)(1), in light of the Supreme Court’s decision in

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2 No. 02-2162
Bailey v. United States, 516 U.S. 137 (1995). We conclude
that, while equitable tolling is possible in a proper case,
Nolan’s is not that case, and we thus affirm the district
court’s finding that Nolan’s claims are time-barred.
I
In May 1994, Nolan and his co-defendant Michael
Henderson were convicted of conspiring to possess with
intent to distribute cocaine base in violation of 21 U.S.C.
§ 846, distributing cocaine base in violation of 21 U.S.C.
§ 841(a)(1), and knowingly using a nine-millimeter firearm
during a drug offense in violation of 18 U.S.C. § 924(c).
Their convictions were affirmed on direct appeal to this
court in June 1995, although Henderson’s sentence was
vacated and his case was remanded for a new sentencing
hearing because of a problem with the district court’s
methodology in calculating drug quantity. United States v.
Henderson, 58 F.3d 1145 (7th Cir. 1995). Nolan’s lawyer did
not challenge the district court’s calculation of drug quan-
tity for sentencing purposes.
In April 1997, nearly two years after the direct appeal
was decided, the pair filed a joint motion for a new trial
pursuant to F ED . R. C RIM . P. 33, in which they alleged
violations of Brady v. Maryland, 373 U.S. 83 (1963) and
Giglio v. United States, 405 U.S. 150 (1972). The district
court denied their motion one day later. In September 1997,
while the joint appeal of their Rule 33 motion was pending
before this court, Nolan wrote a letter to the district court,
asking whether his pending Rule 33 appeal suspended the
one-year limitations period for filing a motion for collateral
relief under 28 U.S.C. § 2255. Nolan never received a
response to his ex parte communication from the district
court. On August 13, 1998, one year after Nolan wrote to
the district court, this court summarily affirmed the lower

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No. 02-2162 3
court’s denial of his Rule 33 motion. United States v.
Michael Henderson, No. 97-1998 (7th Cir. August 13, 1998)
(unpublished order).
Three years later, in July 2001, Nolan sought leave from
this court to file a successive § 2255 motion. Nolan’s appli-
cation was dismissed without prejudice because it was un-
clear whether any of his previous filings had been treated
as a § 2255 motion. Shortly thereafter, this court issued an
opinion that Henderson’s earlier Rule 33 motion did not
count as a prior collateral attack under the Antiterrorism
and Effective Death Penalty Act (AEDPA), 28 U.S.C.
§ 2255, because the district court neither treated his Rule
33 motion as a motion under § 2255, nor did it inform
Henderson that it was doing as much. Henderson v. United
States, 264 F.3d 709, 711 (7th Cir. 2001). In so ruling, we
anticipated the Supreme Court’s later decision in Castro
v. United States, 124 S.Ct. 786 (2003), in which the Court
held that a district court may not “convert” a filing into
a § 2255 motion without first explaining its action to the
petitioner, warning her of the consequences of such a re-
characterization, and giving her an opportunity to withdraw
the motion. The effect of our decision in Henderson was to
establish that Henderson (and Nolan by parity of reasoning)
did not need to follow the procedure outlined in § 2255 ¶ 8
for second or successive petitions. It did not address any
other procedural requirements for § 2255 motions.
Two months later, in October 2001, Nolan filed a pro se
§ 2255 motion in the district court, in which he asserted
claims of ineffective assistance of trial and appellate coun-
sel, and actions inconsistent with the rules announced in
Bailey v. United States, 516 U.S. 137 (1995), and Apprendi
v. New Jersey, 530 U.S. 466 (2000). The district court
rejected Nolan’s claims as untimely under § 2255; in the
alternative, it rejected his arguments on the merits.

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4 No. 02-2162
In August 2002, this court granted Nolan a certificate of
appealability limited to the question “whether the statute
of limitations should have been equitably tolled because,
until the court decided Henderson v. United States, 264 F.3d
709 (7th Cir. 2001), he reasonably believed that his new
trial motion, which the district court construed as a § 2255
motion without notice to Nolan, ‘counted’ as a prior collat-
eral attack for purposes of § 2255 ¶ 8.” The order granting
the certificate of appealability further specified that Nolan
had “made a substantial showing of the denial of a constitu-
tional right as to his Bailey and ineffective assistance of
counsel claims, but not his Apprendi claim.” This cleared
the way for the parties to brief the former two issues on
appeal as well.
II
The Antiterrorism and Effective Death Penalty Act
(AEDPA), 28 U.S.C. § 2255, added a one-year limitation
period for pursuing relief under 28 U.S.C. § 2255. The
period for filing such a motion begins to run
from the latest of—
(1) the date on which the judgment of conviction be-
comes 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 re-
moved, 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

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No. 02-2162 5
(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 ¶ 6. Nolan concedes that his claims are not
timely under any of the statutory options. Therefore, unless
we are persuaded that the statute of limitations can and
should be equitably tolled for his claims, they are time-
barred.
We begin by addressing the confusion over whether
a court has the power equitably to toll the statute of lim-
itations for a § 2255 motion. The government argues that
this remains an open question in our circuit. Although the
cases have not been as clear as they might have been, a
close reading shows that we have consistently held that
“§ 2255’s period of limitation is not jurisdictional but is
instead a procedural statute of limitations subject to equit-
able tolling.” United States v. Marcello, 212 F.3d 1005, 1010
(7th Cir. 2000) (citing Taliani v. Chrans, 189 F.3d 597 (7th
Cir. 1999)). Accord Montenegro v. United States, 248 F.3d
585, 594 (7th Cir. 2001). In fact, every circuit that has
considered the issue has held that the one-year limitation
period under § 2255 (and in some situations the comparable
period in 28 U.S.C. § 2244(b) for § 2254 petitions) is a
statute of limitations subject to equitable tolling. See
Dunlap v. United States, 250 F.3d 1001, 1004 n.1 (6th Cir.),
cert. denied, 534 U.S. 1057 (2001) (collecting cases); 3
C HARLES A LAN W RIGHT , N ANCY J. K ING , & S USAN R. K LEIN ,
F EDERAL P RACTICE & P ROCEDURE , § 597, at 321 (2003
Supp.). But see United States v. Pollard, 161 F. Supp. 2d 1,
12 (D.D.C. 2001) (finding that Congress did not intend to
allow equitable tolling of § 2255 claims).
Montenegro is not to the contrary. There, we ack-
nowledged again that “[b]ecause § 2255’s tolling period is
procedural, not jurisdictional, the period may be equitably
tolled.” 248 F.3d at 594. Only after that point was clear did

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6 No. 02-2162
we note that the scope of equitable tolling is probably quite
narrow: “[i]n Taliani, we noted that ‘it is unclear what room
remains for importing the judge-made doctrine of equitable
tolling’ into § 2244 claims, given the express tolling provi-
sions incorporated in the statute. The same goes for § 2255,
and we continue to decline to reach the issue.” Id., quoting
Taliani, 189 F.3d at 598. The government reads this
passage as questioning the overall applicability of the
doctrine of equitable tolling to § 2255 motions.
In our view, the government has read too much into the
Montenegro comment. Our recent decision in Modrowski v.
Mote, 322 F.3d 965 (7th Cir. 2003), illustrates this. In
Modrowski, we refused equitably to toll the statute of
limitations for a § 2254 petitioner whose attorney, because
of mental incompetence, missed the filing deadline by one
day. Id. at 968. Because the circumstances of that case
would not have supported equitable tolling in any event, the
panel reserved the question whether the statute of limita-
tions for a state prisoner’s § 2254 claim may ever be
equitably tolled. Id. at 967 n.2. In passing on this question,
the Modrowski court explicitly distinguished § 2254 and
§ 2255 petitions: “[w]e have held that the limitation period
for motions under § 2255 is subject to equitable tolling,
but we have never decided the question conclusively for
§ 2254 petitions.” Id. (citations omitted). Nolan, a federal
prisoner, is proceeding under § 2255. We therefore have no
need here to speculate about why one either should or
should not distinguish between the two types of petitions.
Compare Modrowski (questioning tolling) with Owens v.
Boyd, 235 F.3d 356, 360 (7th Cir. 2000) (“Tolling [for a
§ 2254 petitioner] may be available when some impediment
of a variety not covered in § 2244(d)(1) prevents the filing of
a federal collateral attack.”). It is enough to reaffirm that
this court recognizes the possibility of equitable tolling for
§ 2255 petitioners, and to proceed to decide whether Nolan
is entitled to that relief.

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No. 02-2162 7
III
The answer, we conclude, is no. Equitable tolling is a
remedy reserved for “[e]xtraordinary circumstances far
beyond the litigant’s control [that] . . . prevented timely
filing.” Modrowski, 322 F.3d at 967 (quoting Marcello, 212
F.3d at 1010). Equitable tolling of the statute of limitations
is such exceptional relief that “we have yet to identify a
circumstance that justifies equitable tolling in the collateral
relief context.” Id. (citing Lloyd v. VanNatta, 296 F.3d 630,
633 (7th Cir. 2002)).
In making his equitable tolling argument, Nolan relies on
a trio of cases that clarify the relation between properly
labeled § 2255 motions, claims that could have been
brought in a § 2255 motion but were instead pursued by
different means, and the AEDPA statute of limitations. See
O’Connor v. United States, 133 F.3d 548 (7th Cir. 1998);
United States v. Evans, 224 F.3d 670 (7th Cir. 2000);
Henderson v. United States, 264 F.3d 709 (7th Cir. 2001). In
light of these decisions, Nolan urges that he could not have
filed his § 2255 petition before Henderson v. United States
was decided. Only then, in his view, was it finally clear that
a petitioner in his situation could not be penalized for any
shortcomings in the district court’s treatment of his post-
conviction filings.
But Nolan is asking for too much: why stop with
Henderson, for example? The Supreme Court did not en-
dorse Henderson’s approach until December 15, 2003, when
it issued its opinion in Castro. When Nolan and Henderson
filed their Rule 33 motions in April 1997, the one-year grace
period available to all prisoners whose proceedings had
ended before the April 1996 effective date of AEDPA was
about to expire. See Newell v. Hanks, 283 F.3d 827, 833 (7th
Cir. 2002) (holding that the deadline under the grace period
was April 24, 1997). Nolan chose then to file a Rule 33
motion, not a § 2255 application. From the point of view of

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8 No. 02-2162
timeliness (as opposed to the “successive petitions” rule), he
did so at his peril. Our decision in O’Connor v. United
States (issued January 9, 1998) addressed the distinguish-
able situation of a prisoner who files a Rule 33 motion
during the year after her conviction became final—that is,
at a time when a § 2255 motion would also be permitted.
Under those circumstances, we instructed the district courts
first to ask the petitioner if she planned to raise any other
issues in a § 2255 motion, and then to defer ruling on the
Rule 33 motion so that the claim could be considered
together with any other issues, in the event the petitioner
sought to raise other claims in a separate § 2255 motion. Id.
at 551. The virtue of this approach is that it avoids
“fractur[ing] the case into slivers, jeopardiz[ing] the defen-
dant’s opportunity for one complete collateral attack, or
both.” Id. O’Connor also clarified that the one-year statute
of limitations for § 2255 motions under AEDPA is not tolled
pending resolution of any other post-trial motions that aim
to upset a defendant’s conviction. Id. at 551. (“Priority must
now go to petitions under § 2255, for once the direct appeal
ends the clock starts ticking.”). In so holding, we distin-
guished a line of cases that included United States v. Davis,
604 F.2d 474 (7th Cir. 1979), on which district courts had
previously relied to dismiss § 2255 motions that were filed
when a defendant had other post-conviction motions
pending. Id.
Even though any petition by Nolan would already have
been seven months late by the time O’Connor was decided,
from an equitable point of view O’Connor alerted him and
comparable prisoners to test the waters then with a § 2255
motion accompanied by a request for equitable tolling. He
was on notice by then of the fact that his Rule 33 motion did
not stop the clock on any subsequent collateral attack under
§ 2255, even though O’Connor did not resolve the distinct
question whether a Rule 33 motion should be treated as a
“first” § 2255 motion. Id. at 549.

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No. 02-2162 9
Several years later we held that “any post-judgment
motion in a criminal proceeding that fits the description of
§ 2255 ¶ 1 is a motion under § 2255, and that the second
(and all subsequent) of these requires appellate approval.”
Evans, 224 F.3d at 672. At the same time, recognizing the
drastic consequences of filing the initial § 2255 motion, we
held that the district courts had a duty to inform the
moving party that her claim could and would be construed
as a motion brought under § 2255. Id. at 674. Without this
warning, an uninformed prisoner would not be able intelli-
gently to decide whether to withdraw her motion or to add
to it any other claims that she wished to present in a
collateral attack. Id. Finally, Henderson confirmed that if a
district court converts a petitioner’s post-trial motion into
a § 2255 motion without notifying the petitioner that her
motion counts as her first § 2255 motion, then the peti-
tioner’s claim will not be treated as a § 2255 motion. 264
F.3d at 710, 711. See Castro, 124 S.Ct. at 792.
Nolan believes that a gap existed during the brief post-
O’Connor, pre-Evans period, that redounds to his benefit.
After O’Connor, he argues, the district court either did or
should have treated his claim as a § 2255 motion. Assuming
it had done so, it should also have informed Nolan that his
motion had been converted. The biggest problem with
Nolan’s argument is the simple fact that the district court
did not treat Nolan’s Rule 33 motion as if it were a § 2255
motion. Nolan should have realized at the very latest after
O’Connor was decided in 1998 that the AEDPA clock was
ticking on his § 2255 motion while his Rule 33 motion was
pending on appeal. Even if equitable tolling would have
been appropriate at that point, however, Nolan waited
another three years before he filed his § 2255 petition.
It is impossible to know with certainty what would have
happened if Nolan had filed his § 2255 motion within a
reasonable time after O’Connor was released, but specu-
lation is pointless at this late date. Nolan cannot now com-

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10 No. 02-2162
plain that he is being denied the benefit of the rule that we
announced in Henderson, because Nolan did not need
Henderson to file a § 2255 motion.
As we have already noted, the equitable tolling of a
statute of limitations is an extraordinary remedy reserved
for truly exceptional situations. The excuses Nolan offers
for why his claims were not timely filed fall far short of
what is needed to justify tolling the statute of limitations on
his behalf—indeed, they amount to little more than a
disagreement with the express tolling provisions found in
§ 2255 ¶ 6(3), and thus are not the kind of case-specific,
unanticipated circumstances we have required in the past.
Because we find equitable tolling inappropriate in this case,
we offer no opinion on the merits of Nolan’s Bailey and
ineffective assistance of counsel claims.
IV
We A FFIRM the judgment of the district court dismissing
Nolan’s § 2255 motion.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—2-18-04

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