In the

United States Court of Appeals

For the Seventh Circuit ____________________

No. 18-2541

TYRUS MCNAIR,

Petitioner-Appellant,

v.

UNITED STATES OF AMERICA,

Respondent-Appellee.

____________________

Appeal from the United States District Court for the

Northern District of Indiana, Fort Wayne Division.

No. 1:17-CV-494 — William C. Lee, Judge.

____________________

ARGUED DECEMBER 9, 2019 — DECIDED JUNE 22, 2020

____________________

Before EASTERBROOK, ROVNER, and SCUDDER, Circuit Judges.

EASTERBROOK, Circuit Judge. When Tyrus McNair was 

sentenced in 2003 for a serious drug crime, the district court 

calculated his range under the Sentencing Guidelines at 324 

to 405 months and sentenced him to 360 months. Calculation 

of the range was uncontested except for one thing: McNair 

was placed in Criminal History Category II as a result of a 
2 No. 18-2541

1992 conviction in Indiana for driving without a license. He

asserted that this conviction is invalid and that he should be 

in Category I, which would have produced a range of 292 to 

365 months. The district court declined to entertain a collateral a]ack on the state conviction, see Custis v. United States, 

511 U.S. 485 (1994), and used the 324 to 405 month range. We 

affirmed. No. 03-3034 (7th Cir. Jan. 8, 2004) (nonprecedential 

disposition).

In 2005 McNair filed a collateral a]ack under 28 U.S.C. 

§2255, again disputing use of the state conviction. The district court denied this petition, informing McNair that he 

needed to contest that conviction in state court. Later

McNair filed a flurry of other motions in this federal prosecution; all were unsuccessful and some were dismissed as 

unauthorized successive collateral a]acks. See 28 U.S.C. 

§§ 2244, 2255(h).

In 2007 McNair asked a state judge to vacate his conviction for driving without a license. That motion was denied. 

He tried again in 2017; this time he prevailed. McNair came 

back to federal court with the argument that he is entitled to 

be resentenced, something that Custis and Johnson v. United 

States, 544 U.S. 295 (2005), suggest is appropriate after a state 

court sets aside a conviction that affected the federal sentence. But the district judge dismissed McNair’s application 

as an unauthorized successive collateral a]ack. 2018 U.S. 

Dist. LEXIS 107803 (N.D. Ind. June 28, 2018). McNair contended that collateral a]acks are unaffected by sections 2244 

and 2255(h) when it would have been premature to file earlier. See Pane;i v. Quarterman, 551 U.S. 930 (2007); Magwood v. 

Pa;erson, 561 U.S. 320 (2010). The district judge was unpersuaded. He read Unthank v. Je;, 549 F.3d 534 (7th Cir. 2008), 
No. 18-2541 3

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

hold that Pane;i does not apply to a claim based on a state 

court’s vacatur of a criminal conviction.

We do not understand them so. Unthank dealt with a petition under 28 U.S.C. §2241. Unthank argued that a state 

court’s vacatur of a criminal conviction entitled him to be 

resentenced in federal court. He had filed and lost at least 

one petition under §2255 and believed that this made §2255 

“inadequate or ineffective” (§2255(e)) to test his sentence, 

entitling him to use §2241. Unthank holds that this is 

wrong—that §2255 is the proper means to contest sentences 

on the basis of a change in one’s criminal record. Because 

Unthank was proceeding under §2241 and insisted that he 

could not use §2255, we did not consider whether that assumption was correct. Unthank does not cite Pane;i or discuss the possibility that a change in one’s criminal record 

permits a new §2255 motion.

Purvis likewise is irrelevant. Purvis filed a §2255 motion 

while simultaneously asking a state court to vacate one of his 

convictions. The district court dismissed the federal motion 

as premature, and we reversed because that decision exposed Purvis to a needless risk: that a later §2255 motion 

would be dismissed as untimely, successive, or both. We 

held that, while the request is pending in state court, the 

federal proceeding should be stayed, under the approach of 

Rhines v. Weber, 544 U.S. 269 (2005). The opinion in Purvis

concludes that a stay under Rhines is cleaner than leaving the 

prisoner to argue, when filing a second motion, that Pane;i

authorizes this additional step. Purvis does not hint that this 

court would have rejected an argument based on Pane;i had 

a new collateral a]ack been filed; having held that the origi-
4 No. 18-2541

nal collateral a]ack should continue, we did not need to decide that question.

And then there is United States v. Obeid, 707 F.3d 898 (7th 

Cir. 2013). Obeid asked a district court to reduce his sentence 

because his twin brother had received a reduction for cooperating with the prosecutor. He asked for this relief under 

Fed. R. Crim. P. 35(b), and we held that the Rule is available 

only to someone who provides information of value—

something that Obeid had not done. The right basis for seeking relief would have been §2255. Obeid discussed Pane;i at 

length, see 707 F.3d at 901–03, and concluded that it permits 

new collateral a]acks when new factual developments give 

rise to new theories that were unavailable earlier. Because

Johnson treats the vacatur of a state conviction as a new 

“fact” rather than a new legal development, the analysis of

Obeid supports McNair’s position. Obeid did not suggest that 

it was modifying or overruling Unthank or Purvis. It did not 

need to, because they do not say anything different from

Pane;i or Obeid.

At least three other courts of appeals have considered 

whether a §2255 petition based on the vacatur of a state conviction may be maintained as an “initial” §2255 motion on 

the theory that the claim was unripe until the state court acted. All three hold that it may be. United States v. Hairston, 754 

F.3d 258, 262 (4th Cir. 2014); In re Weathersby, 717 F.3d 1108, 

1111 (10th Cir. 2013); Stewart v. United States, 646 F.3d 856, 

865 (11th Cir. 2011); Boyd v. United States, 754 F.3d 1298, 1302 

(11th Cir. 2014). The district judge believed that Unthank and

Purvis produce a conflict among the circuits. It should be 

clear by now that they do not. We agree with our colleagues 

on the Fourth, Tenth, and Eleventh circuits that Pane;i gov-
No. 18-2541 5

erns the use of §2255 to request resentencing following a 

state court’s vacatur of a conviction that had increased the 

federal sentence.

This does not mean, however, that McNair is entitled to a

remand. Obeid did not stop with its conclusion that a motion 

under §2255 is the right way to raise new factual developments. We ruled against Obeid because he took too long to 

act. Section 2255(f)(4) provides that a motion must be 

brought within a year of “the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.” Johnson addressed how that date is determined:

That leaves us with the question of how to implement the statutory mandate that a petitioner act with due diligence in discovering the crucial fact of the vacatur order that he himself seeks. The 

answer is that diligence can be shown by prompt action on the 

part of the petitioner as soon as he is in a position to realize that 

he has an interest in challenging the prior conviction with its potential to enhance the later sentence. The important thing is to 

identify a particular time when the course of the later federal 

prosecution clearly shows that diligence is in order. That might 

be the date the federal indictment is disclosed, the date of judgment, or the date of finality after direct appeal. Picking the first 

date would require the quickest response and serve finality best,

but it would produce some collateral litigation that federal acqui]als would prove to have been needless, and it shares the 

same disconnection from the existence of a §2255 claim as the 

Government’s view of the relevant “facts”. If we picked the third 

date, collateral litigation would be minimized, but finality would 

come late. This shapes up as a case for choosing the bowl of porridge between the one too hot and the one too cold, and se]ling 

on the date of judgment as the moment to activate due diligence 

seems best to reflect the statutory text and its underlying concerns. After the entry of judgment, the subject of the §2255 claim 

has come into being, the significance of inaction is clear, and 
6 No. 18-2541

very li]le litigation would be wasted, since most challenged federal convictions are in fact sustained.

544 U.S. at 308–09 (cleaned up). Johnson lost because more 

than three years elapsed between sentencing and his request 

for relief in state court. Id. at 311. The Justices added that 

even 21 months (the time between the end of Johnson’s appeal and his request in state court) would have been too 

long. Ibid. By this standard, 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. A state magistrate denied this 

motion, and McNair did not appeal. For the next 91⁄2 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 un-diligent as can be.

McNair’s counsel tell us that he didn’t appreciate the 

difference between state and federal judges, which is why he 

kept peppering the federal judge with motions while all but 

 

† The lawyer who represented McNair was Marcia Linsky, who as a 

Magistrate Judge in Allen County had denied McNair’s motion in 2007.

Whether Indiana’s rules of legal ethics permit a lawyer to represent 

someone seeking to contest a decision that the lawyer made while on the 

bench is a question we need not consider.
No. 18-2541 7

ignoring the state court. Yet McNair certainly knew the benefit of having the sentencing range calculated without regard 

to the state conviction; he asked the federal judge for that 

relief before sentencing. And the federal judge told McNair 

that he needed to pursue relief in state court. Suppose 

McNair just didn’t grasp what the judge told him (though he 

did seek relief in state court in 2007). Still, ignorance of the 

law does not justify tolling the one-year limitations period in 

§2255(f), see Godoski v. United States, 304 F.3d 761, 762 (7th 

Cir. 2002) (collecting cases), and we can’t see why legal ignorance should be a be]er excuse if proposed as a substitute 

for diligence. Johnson said as much. 544 U.S. at 311. 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.

AFFIRMED