### In the 

# United States Court of Appeals For the Seventh Circuit

____________________ No. 18

- 2541

T YRUS M C N AIR , 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
, Fort Wayne Division. No. 1:17

- CV

- 494

— William C. Lee
, Judge

.

____________________
A RGUED D ECEMBER 9, 2019

— D ECIDED J UNE 22, 2020

____________________

Before E ASTERBROOK , R OVNER , and S CUDDER , Circuit Judges

. E ASTERBROOK , Circuit Judge

. When Tyrus McNair was sentenced in 2003 for a serious drug crime, the district court calculated his range under the Sentencing G uidelines at 324 to 405 months and sentenced him to 360 months . Calculation of the range was uncontested except f or one thing: McNair was placed in Criminal History Category II as a result of a2 No. 18

- 2541

1992 conviction in Indiana for driving without a license. He asserted that this conviction is invalid an d that he should be in Category I, which would have produced a range of 292 to365 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 affi rmed . No. 03

- 3034 (7th Cir. Jan. 8, 2004) (nonprecedenti al dis position).
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 fi led 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. L EXIS 107803 (N.D. Ind. June 28, 2 018). 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

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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 th em 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 hecould 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 motionas 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 opinio n 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 h ad a new collateral a]ack been filed ; having held tha t the origi-4 No. 18

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nal collateral a]ack should continue, we did not need to decide that ques tion.
And then there is United States v. Obeid , 707 F.3d 898 (7th Cir. 2013). Obeid asked a district court t o reduce his sentencebecause 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 th at 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 collat eral a]acks when new fac tual developments give rise to new theories that we re 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 ” §225 5 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, 26 2 (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 cir cuits. It should be clear by now that they do not. We agree with our colleague s on the Fourth, Tenth, and Eleventh circuits that Pane;i gov-No. 18

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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 motionunder §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 throug h 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 thathe 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. Th at mightbe 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 th at 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 rele vant “ facts ” . If we picked the third date, collateral litigation would be minimized, but fi nality wouldcome 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 un derlying concerns. After the entry of judgment, the subject of the §2255 claim has come into being, the significance of inaction is clear, and6 No. 18

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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 thateven 21 months (the time between the end of Johnson’s appeal and his request in sta te 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

mo tion, and McNair did not appeal. For the next 9 1⁄2 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 sinc e 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 diff erence 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

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ignoring the state court. Yet McNair certainly knew the benefit of having the sentencing range calculated without regard to the state conv iction; 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 20 07 ). Still, i gnorance 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 ex cuse if pro posed 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.
A FFIRME D