In the

United States Court of Appeals

For the Seventh Circuit

No. 12-1254

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

KHALED OBEID,

Defendant-Appellant.

Appeal from the United States District Court 

for the Northern District of Illinois, Eastern Division.

No. 02 CR 038-2—Blanche M. Manning, Judge.

ARGUED SEPTEMBER 26, 2012—DECIDED FEBRUARY 22, 2013

Before EASTERBROOK, Chief Judge, and WOOD and

WILLIAMS, Circuit Judges.

WOOD, Circuit Judge. In exchange for his cooperation

with the government, Khaled Obeid is serving a federal

sentence that is at least 45% shorter than it would have

been had he been sentenced within the range recommended by the United States Sentencing Guidelines.

He believes, however, that he is entitled to an additional 24-month reduction, based not on his own coopera-
2 No. 12-1254

tion, but on that of his identical twin brother, Khaldon

Esawi. The district court concluded that Obeid was not

so entitled, and we agree, though for a different reason.

The proper procedural vehicle for Obeid’s claim is not,

as Obeid, the government, and the district court all apparently assumed, a motion to compel under Federal

Rule of Criminal Procedure 35(b). It is instead a motion

under 28 U.S.C. § 2255. Although we find that relief

for Obeid is not barred for lack of permission to file a

successive motion, it is unavailable for another reason:

his motion was filed beyond the time permitted by

Section 2255(f) and thus was properly dismissed.

I

Over 10 years ago, Obeid and his twin brother Esawi

were indicted along with more than 10 others for

their involvement in a conspiracy to smuggle

pseudoephedrine tablets from Canada into the United

States; the pills were ultimately destined to be used in

Mexico for methamphetamine production. In all, Obeid

and Esawi smuggled over 215 million pseudoephedrine

tablets into this country between 2001 and their indictment in 2002. The brothers were also involved in

money laundering related to their smuggling scheme.

In 2004 Obeid and Esawi each pleaded guilty to drug

possession and money laundering. Their substantially

identical plea agreements contemplated that sentencing

would be deferred while the brothers assisted the government with its ongoing investigation. In exchange

for that assistance, the government promised to seek
No. 12-1254 3

a downward departure for each brother under Section 5K1.1 of the guidelines.

Obeid and Esawi were both sentenced in 2006. At

Obeid’s sentencing hearing, the government, as promised,

moved for a below-guidelines sentence. The Assistant

U.S. Attorney noted that much of the cooperation

the government was attributing to Obeid actually had

been provided by Esawi. The AUSA explained that

because the brothers possessed more or less the same

information, it was often unnecessary to solicit

assistance from both of them, but that the government

was nonetheless willing to credit each with the other’s

cooperative efforts. The district court granted the government’s motion and sentenced Obeid to 178 months

in prison, which represented a 45% discount from the

low end of the guidelines range.

In January 2006, several months before Obeid’s sentencing, the government entered into a supplemental

plea agreement with Esawi in which it agreed to seek a

further reduction in Esawi’s sentence pursuant to Rule

35(b) in exchange for his continuing cooperation. As a

result, in 2008 Esawi received an additional 24-month

sentence reduction. Obeid knew of this supplemental

agreement by the time of his sentencing, but since it

related to future cooperation he had no way of knowing

whether the government would eventually make the

anticipated motion or how much of a reduction it

would seek. Obeid also knew that he had not entered

into a comparable agreement. Although the government signaled at the sentencing hearing that it would
4 No. 12-1254

be open to negotiating a supplemental agreement

with Obeid if he were willing to provide additional

assistance, Obeid never attempted to negotiate such an

agreement or to provide further cooperation. Rather, he

spent the next several years attempting to undo his sentence. We dismissed his initial appeal of his sentence

in 2007 on the ground that it violated the appellate

waiver in his plea agreement. United States v. Obeid, 256

F. App’x 816 (7th Cir. 2007). Obeid later moved for

relief under 28 U.S.C. § 2255, alleging ineffective

assistance of counsel. We denied Obeid’s request for a

certificate of appealability from the district court’s decision denying relief. Obeid v. United States, No. 08-2361

(7th Cir. Dec. 12, 2008).

On July 15, 2010, Obeid returned to the district court

with a filing that he styled a “motion to compel the government to seek an additional reduction under

[Rule 35(b)].” In the motion, Obeid alleged that the government had promised to treat him and Esawi identically

for purposes of crediting their cooperation, and that

the government was violating that promise by refusing

to seek the same Rule 35(b) reduction for Obeid that it

had for Esawi back in 2008. The district court held an

evidentiary hearing, after which it found that neither

Obeid’s plea agreement nor statements made at his sentencing hearing established that the government had

ever promised to continue to credit Obeid with his

brother’s cooperation after sentencing. The district

court further concluded that the government’s explanations for why it chose to seek future cooperation from

Esawi only—namely, that Esawi had a better memory
No. 12-1254 5

and that dealing with Obeid was “almost impossible”—were rationally related to its legitimate interest

in obtaining cooperation. Accordingly, the district court

denied the motion. This appeal followed.

II

A

Obeid, the government, and the district court all

treated Obeid’s motion as one properly filed under

Federal Rule of Criminal Procedure 35(b). This was incorrect. Rule 35(b) provides a mechanism for the government to seek a reduction in a defendant’s sentence

based on his substantial cooperation; it nowhere allows

a defendant to force the government to seek a Rule 35(b)

reduction on his behalf. Nevertheless, if the government refuses to follow through on a promise to file

a Rule 35(b) motion, and that refusal is “based on an

unconstitutional motive” or is “not rationally related

to any legitimate Government end,” Wade v. United

States, 504 U.S. 181, 185-86 (1992), the defendant is not

without opportunity for redress. Rather, as we explained in United States v. Richardson, 558 F.3d 680 (7th

Cir. 2009), the defendant may challenge the government’s refusal in a motion under 28 U.S.C. § 2255. Id.

at 681-82. We will therefore treat Obeid’s filing as such

a motion.

Because Obeid already has one Section 2255 motion to

his name, his new filing must clear the jurisdictional

hurdle imposed by the Antiterrorism and Effective
6 No. 12-1254

Death Penalty Act (AEDPA). That statute provides that

a district court may not entertain a “second or successive” motion filed by a federal prisoner unless the

prisoner has first obtained authorization to file from

the court of appeals. §§ 2244(a); 2255(h); see also Nuñez

v. United States, 96 F.3d 990, 991 (7th Cir. 1996). Obeid

did not ask this court for its permission to file his

motion, and so if it qualifies as “successive,” the district

court lacked jurisdiction to adjudicate it. Nuñez, 96 F.3d

at 991. We add that to the extent Obeid is now asking

for our permission to file a successive motion, see, e.g.,

United States v. Lloyd, 398 F.3d 978, 981 (7th Cir. 2005), the

answer must be no. The arguments he presented in his

“Rule 35(b)” motion fall under neither of AEDPA’s exceptions to the prohibition on successive motions. See

§ 2255(h) (permitting successive motions only when

they raise claims based on either newly discovered evidence that establishes the petitioner’s innocence, or “a

new rule of constitutional law[] made retroactive to

cases on collateral review by the Supreme Court”).

Obeid can proceed with this case, therefore, only if,

under the complex rules that have evolved since

AEDPA’s passage, his motion cannot be characterized

as truly successive. In the context of discussing petitions

filed under 28 U.S.C. § 2254, which applies to persons

in state custody, the Supreme Court has held repeatedly

that not every petition “filed second or successively

in time” to a prior petition counts as “second or successive,” “even when the later filings address a [] judgment already challenged in a prior § 2254 application.”
No. 12-1254 7

Panetti v. Quarterman, 551 U.S. 930, 944 (2007); see also

Magwood v. Patterson, 130 S. Ct. 2788, 2796 (2011) (“[I]t

is well settled that the phrase does not simply refe[r] to

all § 2254 applications filed second or successively in

time.”) (alterations in original) (internal quotation

marks omitted). On this point, there is no material difference between motions under Section 2255 and

petitions under Section 2254, and so we have no hesitation in applying those holdings to Obeid’s case.

The Court’s decision in Panetti sheds light on when

a petition or motion that is numerically second should

also be subject to the special rules for successive filings.

There, a death row inmate who previously had filed a

federal habeas corpus petition raising various issues

about his trial and sentence sought to bring a second

petition in which he asserted that he was mentally incompetent and thus could not be executed under Ford v.

Wainwright, 477 U.S. 399 (1986). 551 U.S. at 937-38. Although the state conceded that Ford claims are generally unripe until well after AEDPA’s standard

one-year limitation period for filing an initial petition

has run (because the prisoner cannot raise a Ford claim

until his execution is imminent), it argued that Panetti’s

second petition was nevertheless “second or successive”

to his first and thus barred by Section 2244(b). Id. at

942-43. The Court rejected this reading of the law, holding

instead that a petition raising a previously unripe

Ford claim is not second or successive to a prior petition

and thus does not fall within the purview of Section

2244(b). Id. at 947. In so holding, the Court noted that the

phrase “second or successive” “takes its full meaning
8 No. 12-1254

from [the Court’s] case law, including decisions predating

the enactment of [AEDPA].” Id. at 943-44.

The Court’s conclusion in Panetti hinged on the fact

that the Ford claim was not yet available when Panetti

brought his first federal petition. Id. at 943-47. A number

of our sister circuits have generalized this logic to apply

to other types of second-in-time petitions that were not

ripe at the time of the initial petition. See, e.g., United

States v. Buenrostro, 638 F.3d 720, 725 (9th Cir. 2011)

(“Prisoners may file second-in-time petitions based on

events that do not occur until a first petition is concluded. . . . [S]uch claims were not ripe for adjudication at the conclusion of the prisoner’s first federal

habeas proceeding.” (citing cases)); Johnson v. Wynder, 408

F. App’x 616, 619 (3d Cir. 2010) (“We see no reason to

avoid applying Panetti in the context of other types of

claims that ripen only after an initial federal habeas

petition has been filed.”); In re Jones, 652 F.3d 603, 605

(6th Cir. 2010) (petition raising ex post facto claim based

on amendments to state law that occurred after first

petition was not second or successive); Leal Garcia v.

Quarterman, 573 F.3d 214, 222-24 (5th Cir. 2009) (“If,

however, the purported defect did not arise, or the

claim did not ripen, until after the conclusion of the

previous petition, the later petition based on that defect

may be non-successive.”); Thompkins v. Secretary, Dep’t of

Corr., 557 F.3d 1257, 1260-61 (11th Cir. 2009) (claim

that delay in executing petitioner violated the Eighth

Amendment was not second or successive because

the delay could not give rise to a constitutional claim

until it had occurred). (We note that there is some varia-
No. 12-1254 9

tion in these decisions about the critical time. Some

imply that in order to escape the successive petitions bar,

a claim must be unripe only at the time the first petition

is filed, see Johnson, 408 F. App’x at 619; Jones, 652 F.3d at

605 (same), while others indicate that the claim must

still be unripe when the first petition is adjudicated, see

Buenrostro, 638 F.3d at 725; Leal Garcia, 573 F.3d at 222.

Although this distinction could be dispositive in certain

cases, it makes no difference to the outcome here, and

neither party commented on it. Accordingly, we leave

resolution of this question for another day.)

In adopting this ripeness rule, courts have been careful

to distinguish genuinely unripe claims (where the

factual predicate that gives rise to the claim has not yet

occurred) from those in which the petitioner merely

has some excuse for failing to raise the claim in his

initial petition (such as when newly discovered evidence

supports a claim that the petitioner received ineffective

assistance of counsel); only the former class of petitions

escapes classification as “second or successive.” See

Buenrostro, 638 F.3d at 726; Thompkins, 557 F.3d at 1260.

Our pre-Panetti decision in In re Page, 170 F.3d 659 (7th

Cir. 1999), offers an example of a claim that fits within

this latter category and thus was properly rejected as

successive. The petitioner in Page was trying in both

petitions to attack the state’s original failure to hold a

fitness hearing; he was not entitled, we held, to a second

opportunity to raise that point, even though state law

had changed in the interim. 170 F.3d at 660-61.

The idea that a motion or petition that is literally “second” might not be subject to the rules of Sections 2244
10 No. 12-1254

and 2255(h) is not new to this court. In the past, we have

acknowledged that certain petitions, such as those dismissed for failure to pay a filing fee or to exhaust

state-court remedies, do not trigger AEDPA’s successivepetition bar. See, e.g., Altman v. Benik, 337 F.3d 764, 766

(7th Cir. 2003). We have not yet applied a ripeness rule

for determining whether a petition is second or successive. Cf. Suggs v. United States, ___ F.3d ___, 2013 WL

173969, *2 (7th Cir. Jan. 17, 2013) (summarizing Panetti);

Purvis v. United States, 662 F.3d 939, 944 (7th Cir. 2011)

(considering whether to apply ripeness principles from

Panetti, but concluding that the case was more appropriately resolved by the procedures outlined in Rhines

v. Weber, 544 U.S. 269 (2005)). Seeing no reason to part

ways with our sister circuits, however, we join them

in concluding that a petition or motion based on a

claim that did not become ripe any earlier than until

after the adjudication of the petitioner’s first petition or

motion is not “second or successive” within the meaning

of Sections 2244 and 2255(h). (We reiterate that we

express no view concerning claims that become ripe in

between the filing and adjudication of a first petition.)

Applying this principle to Obeid, it appears that his

Rule 35(b) claim became ripe no earlier than June 9, 2008,

when the government moved for a Rule 35(b) reduction

on behalf of Esawi alone. Obeid has persistently maintained that the government promised to treat him and

Esawi equally, crediting all cooperation provided by one

to the other and vice versa. The factual predicate for

Obeid’s claim was thus not in place until the government violated this (supposed) promise by seeking an
No. 12-1254 11

additional sentence reduction only for Esawi. Obeid’s

initial Section 2255 motion was filed on February 19,

2008, and denied on February 29, 2008, several months

before the June date. Accordingly, his current petition

was not second or successive, and the district court

had jurisdiction to decide it.

B

While important, jurisdiction is far from the only procedural prerequisite that Obeid must satisfy. We need

consider only one more: the rules establishing when a

motion under Section 2255 must be filed. Section 2255(f)

imposes a one-year limitation period that runs from, as

relevant here, “the date on which the facts supporting

the claim or claims presented could have been discovered through the exercise of due diligence.” Here,

counsel for Obeid has represented that “it was reasonable for Obeid to remain unaware of the impact of

the supplemental plea agreement [with Esawi] until

June and [sic] October of 2008, when the Government filed

its plea [on Esawi’s behalf].” (Emphasis added.) We

take this as an acknowledgment that Obeid realized, or

should have realized, that the government had broken

its supposed promise no later than the end of 2008.

Obeid’s motion, filed on July 15, 2010, came along at

least a year and a half later and was thus too late.

Finally, we note that our preliminary review of the

merits strongly suggests that Obeid’s motion was

doomed in any event. Obeid cannot claim that the government violated the promises it made in the plea agree-
12 No. 12-1254

ment, for the simple reason that nothing in that document addressed post-sentencing cooperation. The plain

language of the agreement controls so long as its

terms are unambiguous. See United States v. Monroe,

580 F.3d 552, 556 (7th Cir. 2009). Obeid’s plea agreement

provided that the government would move for a downward departure from the guidelines under Section 5K1.1,

and the government did just that. The agreement

included no additional promises. Nor does Obeid present any compelling evidence that the government

ever promised that Obeid would receive additional

credit for his brother’s future cooperation. Rather, the

evidence shows that Obeid received exactly what he

bargained for: a 45% reduction off the low end of the

sentencing guidelines range. He was entitled to no more.

The judgment of the district court is AFFIRMED.

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