Darnell Wilson v. United States of America

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-3581
D ARNELL W ILSON ,
Petitioner-Appellant,
v.
U NITED S TATES OF A MERICA ,
Respondent-Appellee.
____________
Appeal from the United States District Court for the
Northern District of Indiana, South Bend Division.
No. 3:97-CR-0007(08) RM—Robert L. Miller, Jr., Chief Judge.
____________
A RGUED M AY 9, 2005—D ECIDED J ULY 1, 2005
____________
Before P OSNER , E ASTERBROOK , and E VANS , Circuit
Judges.
E ASTERBROOK , Circuit Judge. The Supreme Court held in
Johnson v. United States, 125 S. Ct. 1571 (2005), that a
state court’s order vacating a conviction that had been used
to enhance a federal sentence is a new “fact” that starts a
one-year period in which to seek collateral review of the
federal sentence. See 28 U.S.C. §2255 ¶6(4). That rule has
a proviso: the petitioner “is obliged to act diligently to
obtain the state-court order”, 125 S. Ct. at 1582, and
Johnson holds that an unexplained 21-month wait is not
“diligent” as a matter of law. We must apply these princi-

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2 No. 03-3581
ples to Darnell Wilson’s situation. Acting before Johnson,
the district court held that Wilson took too long and
dismissed his collateral attack. Johnson leads to the same
outcome.
In August 1997 Wilson pleaded guilty to being a member
of a drug-distribution conspiracy. See 21 U.S.C. §846. He
asked the district judge to defer sentencing so that he could
challenge a state conviction for battery that increased his
criminal history score and hence his presumptive sentence
under the Sentencing Guidelines. With the state conviction,
which had been based on a guilty plea, Wilson’s range was
262 to 327 months; without it, the range would have been
235 to 293 months. The district judge gave Wilson time to
file a collateral attack in state court, but within a week the
state judge declined to disturb the conviction, and Wilson
did not appeal. In March 1998 the district judge sentenced
Wilson to 168 months’ imprisonment, departing downward
on the prosecutor’s motion to reward Wilson’s assistance in
other cases.
In June 1998 Wilson tried again in state court, and again
his collateral attack was rejected. In March 2000 Wilson
hired a lawyer, who filed a third state collateral proceeding
on June 12, 2001. This petition was granted the next
month, and the state judge “expunged” the battery convic-
tion, stating that Wilson “should not have been convicted of
the offense” but not explaining why or elaborating on
whether the state could reopen the prosecution in quest of
a proper conviction. On January 16, 2002, the prosecutor
abandoned that possibility by dismissing the charge. In
November 2002 Wilson wrote a letter to the federal pro-
bation department, asking it to “correct” his presentence
report. His reply came from an Assistant United States
Attorney, who informed Wilson that this could not be done
except through the judge, and that the appropriate device
would be a petition under §2255. With this advice in hand,
Wilson did nothing for another six months. On May 27,

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No. 03-3581 3
2003, he filed what he captioned a “Motion to Recall Judg-
ment”, which the district court treated as a §2255 motion
and denied as untimely.
A straightforward application of Johnson vindicates this
decision. The state judiciary vacated the battery conviction
in July 2001, and Wilson did not commence his federal
collateral attack until May 2003, substantially more than
the year allowed by §2255 ¶6(4) following newly discovered
facts. If we treat the possibility of revising the prosecution
as leaving matters unresolved, the prosecutor’s formal dis-
missal closed the books on the state case. By January 2002
it was established that Wilson no longer had, and never
would re-acquire, the battery conviction. At this point he
had a year to commence a federal collateral attack but took
17 months to file anything in federal court.
This court recruited counsel to assist Wilson on appeal,
and his new lawyers have essayed a number of reasons why
the delay should be excused. One is that the district judge
failed to warn Wilson, before treating the “Motion to Recall
Judgment” as a collateral attack, that this would use up the
only collateral proceeding allowed as of right. See Castro v.
United States, 540 U.S. 375 (2003). But what difference
could this make? Wilson’s problem is that he waited too
long, not that he filed too many collateral attacks. A
warning would have led either to the motion’s withdrawal
or to its conversion; in either event Wilson would lose.
Counsel’s second reason is that the lawyer who repre-
sented Wilson in the state collateral proceedings failed to
tell him what to do in federal court after the state court
expunged the conviction; there is a hint that counsel may
not have told Wilson about the favorable decision for some
time (though he learned about it no later than
January 2002, when the charges were dismissed). We may
suppose that the lawyer goofed, but the question for federal
purposes is when Wilson learned about the new “fact”

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4 No. 03-3581
rather than when he recognized its legal significance. See
Owens v. Boyd, 235 F.3d 356, 359 (7th Cir. 2000). Notice to
counsel is notice to the client, just as in other civil litiga-
tion. Because the sixth amendment does not guarantee
quality (or any) counsel in post-conviction proceedings, the
doctrine of ineffective assistance does not apply and law-
yers’ errors do not support relief. See, e.g., Coleman v.
Thompson, 501 U.S. 722, 752-54 (1991); Johnson v.
McBride, 381 F.3d 587, 589-90 (7th Cir. 2004).
Perhaps recognizing that the delay between January 2002
and May 2003 scuppered their client’s position, Wilson’s
appellate counsel repaired to state court after they took
over his case. They asked for another order setting aside his
battery conviction, and the judge obliged. This new order,
issued on September 23, 2004, the same day counsel filed
the motion, reiterates the relief (expungement) and adds a
reason: Wilson told the state judge that he could not have
committed the battery because he was in prison on the date
given in the information. Wilson now contends that the year
allowed by §2255 ¶6(4) and Johnson runs from September
2004.
The September 2004 order could not be a newly discov-
ered “fact” for purposes of §2255 ¶6(4) without eviscerating
the federal statute of limitations. If all a petitioner must do
to extend the time to seek federal relief is get the state
court to reenter (or restate the reasoning behind) an order,
then the year becomes infinitely extensible. The Supreme
Court worried in Johnson that classification of vacatur as
a “fact” would disrupt the federal system of limitations, and
it designed the diligence proviso to curtail the amount of
time that could be added by the process of seeking relief in
state court. See 125 S. Ct. at 1582 & n.8. Cf. Rhines v.
Weber, 125 S. Ct. 1528 (2005). For the same reason, when
a petitioner obtains multiple, but substantively identical,
orders from state court, the “fact” that starts the federal
period is the first of these orders. This is a commonplace in

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No. 03-3581 5
federal litigation. For example, a federal district judge
cannot extend the time to appeal by vacating and reenter-
ing a judgment. FTC v. Minneapolis-Honeywell Regulator
Co., 344 U.S. 206 (1952); United States v. Mosley, 967 F.2d
242 (7th Cir. 1992). Likewise, a state judge cannot extend
the time to file a federal collateral attack by vacating and
reentering a judgment.
Wilson responds that the September 2004 order is not just
the July 2001 order with a new date stamp but is a valuable
clarification. That’s off the mark: the state judge added a
reason but did not change or clarify the relief. Not since
July 2001 has Wilson’s criminal record included the battery
conviction that raised his federal sentencing range (and
thus raised the benchmark from which the federal judge
departed downward to reward his assistance). The convic-
tion had been expunged and no longer counted for federal
purposes. The reason given in July 2001 (that Wilson
“should not have been convicted”) was sketchy but enough
to show that this was not the sort of expungement that
federal law ignores. An expungement that reflects comple-
tion of a sentence, passage of time, or clemency does not
affect the federal criminal history, but an expungement
based on innocence or procedural irregularity does. See
U.S.S.G. §4A1.2(j) Application Notes 6 and 10. And not
since January 2002 has there been any possibility that
Wilson’s criminal record would ever again have such a
conviction.
Anyway, if we were to view the September 2004 order as
a new “fact” under §2255 ¶6(4), a diligence question would
remain: why did Wilson wait 38 months to ask the state
tribunal for this revision? Johnson holds that an unex-
plained 21-month delay is too long; an unexplained
38-month delay also must be too long. Counsel asks us to
remand so that an explanation may be supplied, but a
remand would be appropriate only if there were an explana-
tion on offer but in need of record support. Yet neither

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6 No. 03-3581
Wilson nor his former lawyer has offered any reason,
though that would have been easy to do if one were avail-
able. There is no factual dispute to explore, no proposition
to substantiate with proofs; and, as we concluded above, the
September 2004 order is irrelevant to begin with because it
does not alter Wilson’s criminal history.
A FFIRMED
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—7-1-05

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