In the

United States Court of Appeals

For the Seventh Circuit

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No. 03-3581

DARNELL WILSON,

Petitioner-Appellant,

v.

UNITED STATES OF AMERICA,

Respondent-Appellee.

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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.

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ARGUED MAY 9, 2005—DECIDED JULY 1, 2005

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Before POSNER, EASTERBROOK, and EVANS, Circuit

Judges.

EASTERBROOK, 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-
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 conviction, 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 probation 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,
No. 03-3581 3

2003, he filed what he captioned a “Motion to Recall Judgment”, 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 dismissal 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 represented 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”
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 litigation. Because the sixth amendment does not guarantee

quality (or any) counsel in post-conviction proceedings, the

doctrine of ineffective assistance does not apply and lawyers’ 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 discovered “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
No. 03-3581 5

federal litigation. For example, a federal district judge

cannot extend the time to appeal by vacating and reentering 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 conviction 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 completion 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 unexplained 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 explanation on offer but in need of record support. Yet neither
6 No. 03-3581

Wilson nor his former lawyer has offered any reason,

though that would have been easy to do if one were available. 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.

AFFIRMED

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—7-1-05