Keller v. U.S.

• Decision Date: 23 September 2011
• Docket Number: No. 10–1572.,10–1572.
• Citation: 657 F.3d 675
• Parties: Charles Derrick KELLER, Petitioner–Appellant,v.UNITED STATES of America, Respondent–Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

657 F.3d 675

Charles Derrick KELLER, Petitioner–Appellant,

v.UNITED STATES of America, Respondent–Appellee.

No. 10–1572.

United States Court of Appeals, Seventh Circuit.

Argued Feb. 16, 2011.Decided Sept. 23, 2011.

Robert J. Palmer (argued), Attorney, May, Oberfell & Lorber, Daniel Nora, Law Student, Mishawaka, IN, for Petitioner–Appellant.Amanda A. Robertson (argued), Attorney, Office of the United States Attorney, Benton, IL, for Respondent–Appellee.Before POSNER, FLAUM, and SYKES, Circuit Judges.SYKES, Circuit Judge.

This case raises questions about timeliness and waiver in connection with a federal prisoner's motion under 28 U.S.C. § 2255 to set aside or correct an enhanced sentence based on predicate state-court convictions that are alleged to have been vacated. Charles Derrick Keller pleaded guilty to possession of a firearm by a felon in violation of 18 U.S.C. § 922(g)(1). In his plea agreement, he waived his right to contest any aspect of his conviction or sentence unless the sentence exceeded either the sentencing-guidelines range as calculated by the district court “or any applicable statutory minimum, whichever is greater.” The district court sentenced Keller as an armed career criminal to a term of 180 months, the statutory minimum. See 18 U.S.C. § 924(e)(1). In accordance with the terms of his appeal waiver, he did not pursue a direct appeal.

Nearly two years later, Keller filed a petition for habeas corpus in Oklahoma state court seeking to vacate two of the convictions that were used to enhance his federal sentence. The Oklahoma court entered an order purporting to dismiss the two cases, along with six others then pending against him. Keller promptly moved to vacate, set aside, or correct his federal sentence pursuant to 28 U.S.C. § 2255, arguing that the state court's dismissal order had the effect of vacating two of the three predicate convictions that had been used to classify him as a career criminal. The district court rejected Keller's motion as untimely and also held that it was barred by the waiver of postconviction remedies in his plea agreement.

We affirm. While Keller's appeal was in briefing, the Oklahoma court issued a nunc pro tunc order clarifying that its dismissal order did not in fact vacate Keller's predicate convictions. Both of Keller's arguments on appeal—that his § 2255 motion was timely under Johnson v. United States, 544 U.S. 295, 125 S.Ct. 1571, 161 L.Ed.2d 542 (2005), and also that it fell outside the scope of the waiver provision in his plea agreement—depend on the fact that the two predicate convictions were vacated. In light of the nunc pro tunc order, Keller is left without any good claim for collateral relief.

I. Background

In the course of investigating a robbery in December 2005, police officers in Murphysboro, Illinois, learned that Keller had used one of the credit cards reported stolen during the crime. They located Keller at his grandmother's apartment, and their search of the apartment and a nearby car recovered other stolen goods, including a shotgun. Keller had an extensive criminal history, including state-court felony convictions for possession of hydrocodeine with intent to deliver (Sebastian County, Arizona Case No. CR99–825–1), unlawful possession of a controlled substance with intent to deliver within 2000 feet of a school (Sequoyah County, Oklahoma Case No. CF–2000–139), and assault with a dangerous weapon (Sequoyah County, Oklahoma Case No. CF–2001–89). Keller was charged with possession of a firearm by a felon in violation of 18 U.S.C. § 922(g)(1), and these three state-court felony convictions formed the basis of his classification as an armed career criminal under 18 U.S.C. § 924(e)(1). Keller pleaded guilty, and that classification moved his criminal history category to VI under the sentencing guidelines and placed him at a base offense level of 33.

At Keller's sentencing hearing on January 26, 2007, the district court awarded a three-point reduction for acceptance of responsibility, ultimately placing him at offense level 30 with a sentencing-guidelines range of 168 to 210 months. Based on his classification as an armed career criminal, however, the statutory mandatory minimum sentence was 180 months. See 18 U.S.C. § 924(e)(1). The district court imposed the mandatory minimum 180–month sentence and entered judgment on January 30, 2007.

Keller did not file a direct appeal. Indeed, in his written plea agreement, he had waived his right to contest “any aspect of his conviction and sentence” unless “the sentence imposed is in excess of the Sentencing Guidelines as determined by the Court [ ]or any applicable statutory minimum, whichever is greater,” in which case he “reserve[d] the right to appeal the reasonableness of the sentence.” ¹ Instead, on January 16, 2009, almost two years after the federal judgment was entered, he filed a petition for a writ of habeas corpus in state court in Sequoyah County, Oklahoma, seeking to undo two of his convictions. On April 24, 2009, on the motion of a local prosecutor, the Oklahoma court issued an order summarily dismissing eight cases “pending” against Keller. The caption of this order lists case numbers CF–2000–139 and CF–2001–89, which correspond to his convictions for drug possession in a school zone and assault with a dangerous weapon, two of the three predicates for his classification as a career criminal.

On May 11, 2009, Keller returned to federal court and filed a pro se motion to vacate, set aside, or correct his federal sentence under 28 U.S.C. § 2255. He claimed, among other things, that the Oklahoma court's April 24, 2009 order effectively vacated his convictions in cases CF–2000–139 and CF–2001–89, and that under Johnson v. United States, 544 U.S. 295, 125 S.Ct. 1571, he was entitled to pursue collateral relief because the removal of those convictions meant that he was not in fact a career criminal.

The district court denied the motion on two independent grounds: (1) it was untimely; and (2) Keller waived his right to bring a § 2255 motion in his plea agreement. When Keller asked the court for a certificate of appealability, see 28 U.S.C. § 2253(c)(1)(B), the court reversed itself on the timeliness finding but declined to certify the case for appeal. We issued a certificate of appealability, appointed counsel, and asked the parties to brief the Johnson issue and the scope of Keller's waiver of postconviction remedies.

While the appeal was in briefing, the Oklahoma court issued an order nunc pro tunc correcting its earlier dismissal order. The nunc pro tunc order, dated December 2, 2010, explained that the dismissal of three of the eight cases listed in the April 24, 2009 order—including the cases bearing the numbers CF–2000–139 and CF–2001–89—was a “scrivener's error” and that “said error should be corrected.” The nunc pro tunc order then “corrected” the earlier order so that it would “show those cases [CF–2000–139 and CF–2001–89] to read MOTION AND ORDER TO DISMISS APPLICATION TO REVOKE SUSPENDED SENTENCE.” Though not transparently clear, the apparent purpose of the nunc pro tunc order was to limit the effect of the April 24 order so that it dismissed only the pending postconviction proceedings in the listed cases, not the underlying convictions.

The government then moved to supplement the district court record with a copy of the nunc pro tunc order. The district court granted this request, and the government supplemented the record on appeal to include the new state-court order. Keller moved to strike the order or alternatively for a stay while he attempted to appeal the nunc pro tunc order to the Oklahoma Court of Criminal Appeals. Before oral argument, we denied the motion to stay and said we would take the motion to strike with the merits of the appeal.

II. Discussion

On an appeal from the denial of a § 2255 motion, we review the district court's legal conclusions de novo and its factual findings for clear error. Stallings v. United States, 536 F.3d 624, 627 (7th Cir.2008). The district court properly denied Keller's § 2255 motion. The Oklahoma court's nunc pro tunc order clarified that the April 24, 2009 dismissal order did not vacate Keller's predicate convictions, so the district court was right to conclude that the § 2255 motion was untimely. Moreover, Keller's plea agreement waived his right to appeal or collaterally attack a within-guidelines or statutory minimum sentence. Because the Oklahoma court did not in fact vacate the convictions that served as predicates for Keller's statutory minimum sentence as an armed career criminal, the plea agreement's waiver provision blocks this § 2255 motion; the state court's nunc pro tunc order also leaves Keller without any basis for collateral relief.

A. Timeliness

Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a § 2255 motion must be filed within one year of:

(1) the date on which the judgment of conviction bec[ame] final;

(2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action;

(3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or

(4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.

28 U.S.C. § 2255(f)(1)–(4). Keller filed his § 2255 motion more than two years after his conviction became final, making it untimely under subsection (1) of § 2255(f), and subsections (2) and (3) do not apply.

That leaves subsection (4); Keller argues that his motion was timely under that provision as the Supreme Court interpreted it in Johnson. In Johnson the Court held that a state-court...