In the
United States Court of Appeals
For the Seventh Circuit
No. 14‐3019
CALVIN DAVIS,
Petitioner‐Appellant,
v.
UNITED STATES OF AMERICA,
Respondent‐Appellee.
Appeal from the United States District Court for the
Northern District of Illinois, Western Division.
No. 3:14‐cv‐50124— Frederick J. Kapala, Judge.
ARGUED JANUARY 4, 2016 — DECIDED MARCH 15, 2016
Before BAUER, ROVNER, and WILLIAMS, Circuit Judges.
ROVNER, Circuit Judge. Calvin Davis pleaded guilty in 2010
to a narcotics conspiracy charge pursuant to a written plea
agreement providing that he would be sentenced to a term
equal to 66 percent of either the low end of the sentencing
range advised by the Sentencing Guidelines or the statutory
minimum term, whichever was greater. See Fed. R. Crim. P.
11(c)(1)(C). Davis expected to receive a prison term of no more
2 No. 14‐3019
than 80 months. However, the Guidelines range as subse‐
quently calculated by the probation officer and adopted by the
district court turned out to be much longer than the parties had
expected it would be. The court ultimately ordered Davis to
serve 172 months in prison, a term that was equal to 66 percent
of the low end of the Guidelines range and therefore consistent
with the plea agreement, but more than twice what the parties
had anticipated when they entered into that agreement. No
appeal was filed from the sentence. But more than four years
later, following the Supreme Court’s decision in Alleyne v.
United States, 133 S. Ct. 2151 (2013), Davis filed a motion under
28 U.S.C. § 2255 contending that he was entitled to relief
because the judge’s sentencing findings regarding his criminal
history had increased the statutory minimum term of impris‐
onment. He also asserted, among other claims, that his attor‐
ney was ineffective in advising him about the consequences of
his plea (including the likely sentence) and in failing to file a
notice of appeal following his sentencing. The district court
dismissed the motion, reasoning that Davis had no viable claim
under Alleyne given that the Supreme Court has not yet
declared that decision applicable retroactively on collateral
review, and that Davis’s other claims were untimely. We agree
and affirm the district court’s judgment.
I.
In 2008, Davis became involved with a Rockford, Illinois
drug ring led by Hollis Daniels that trafficked primarily in
heroin and occasionally crack cocaine. See United States v. Block,
705 F.3d 755, 758 (7th Cir. 2013) (describing the organization).
His duties included picking up heroin from a supplier in
Chicago, dropping off the raw heroin to other conspirators for
No. 14‐3019 3
dilution and packaging, supplying street‐level dealers with
25‐count retail packages of heroin, and collecting the proceeds
of their sales. The organization distributed approximately 700
grams of heroin per week. Davis was stopped and arrested
while on his way to complete a pre‐arranged delivery of heroin
to someone who was, unbeknownst to him, a confidential
informant; he had 80 grams of heroin in his possession. After
he was charged in Illinois state court, he began to cooperate
with federal and state agents investigating the Hollis organiza‐
tion, became a confidential informant, and over the course of
the next year wore a recording device to capture other mem‐
bers of the organization discussing their illegal activities. The
investigation culminated in a second superseding indictment
charging Davis and 14 others with conspiring to distribute
(and to possess with the intent to distribute) more than one
kilogram of heroin and 50 grams of crack cocaine, among other
offenses. See 21 U.S.C. §§ 841(a)(1), 846.
Davis pleaded guilty to the conspiracy charge pursuant to
a written plea agreement. Davis agreed to continue cooperat‐
ing with the government and to provide truthful testimony in
any subsequent proceeding. In exchange for his assistance, the
government agreed to ask the court to depart downward from
either the applicable statutory minimum term of imprisonment
or the low end of the advisory range specified by the Sentenc‐
ing Guidelines, whichever was higher, and to impose a
sentence equal to 66 percent of that term. See 18 U.S.C.
§ 3553(e); U.S.S.G. § 5K1.1. Because the drug conspiracy
involved more than one kilogram of heroin, Davis was
presumptively subject to a statutory minimum sentence of 10
years. See 21 U.S.C. § 841(b)(1)(A)(i). The agreement expressly
4 No. 14‐3019
acknowledged that minimum term as well as the maximum
possible term of life imprisonment. See R. 300 at 4 ¶ 8a & 7
¶ 10d.1 However, given what the attorneys knew about Davis’s
criminal history, both parties anticipated that Davis would
have only one criminal history point (resulting in a criminal
history of I) and that he would consequently be eligible for a
sentence below the statutory minimum. See 18 U.S.C. § 3553(f);
U.S.S.G. § 5C1.2(a)(1). Based on their preliminary Guidelines
calculations, the parties also anticipated that the advisory
Guidelines range would be 108 to 135 months. In accordance
with the Government’s agreement to seek a downward
departure to 66 percent of either the low end of that range (i.e.,
approximately 71 months) or of the statutory 10‐year minimum
(roughly 79 months), whichever was greater, the parties
expected the recommended sentence to be no more than 80
months. This was a Rule 11(c)(1)(C) agreement, so provided
that the government found Davis’s cooperation to be sufficient
and made the departure motion, the district court, having
accepted the agreement, was obliged to sentence Davis to 66%
of either the Guidelines minimum or statutory minimum term.
The agreement recognized in several ways, however, that
the parties’ Guidelines calculations were preliminary and that
both the Guidelines range and the final sentence might
ultimately turn out to be different than the parties assumed at
the time they entered into the agreement. Thus, in recounting
the parties’ calculations as to Davis’s criminal history and the
1
Citations to the record in Davis’s criminal prosecution take the form of
“R. ___.” Citations to the record in Davis’s section 2255 proceeding take the
form of “2255 R. ___.”
No. 14‐3019 5
anticipated Guidelines range, for example, the agreement
noted that the calculations were “based on the facts now
known to the government.” R. 300 at 6 ¶ 10(c) & (d). More to
the point, the agreement expressly recognized that the parties’
Guidelines calculations were tentative, that the calculations
might change following the probation officer’s investigation,
and that any such changes would not constitute a basis for a
withdrawal of Davis’s guilty plea:
Defendant and his attorney and the government
acknowledge that the above Guideline calculations
are preliminary in nature, and are non‐binding
predictions upon which neither party is entitled to
rely. Defendant understands that further review of
the facts or applicable legal principles may lead the
government to conclude that different or additional
Guideline provisions apply in this case. Defendant
understands that the Probation Office will conduct
its own investigation and that the Court ultimately
determines the facts and law relevant to sentencing,
and that the Court’s determinations govern the final
Guideline calculation. Accordingly, the validity of
this Agreement is not contingent upon the probation
officer’s or the Court’s concurrence with the above
calculations, and defendant shall not have a right to
withdraw his plea on the basis of the Court’s rejec‐
tion of these calculations.
R. 300 at 7 ¶ 10e. The agreement similarly acknowledged that
any errors in correcting or interpreting the Guidelines could be
corrected by either party prior to sentencing, and again stated
that “[t]he validity of this Plea Agreement will not be affected
6 No. 14‐3019
by such corrections, and defendant shall not have a right to
withdraw his plea, nor the government the right to vacate this
Plea Agreement, on the basis of such corrections.” R. 300 at 7
¶10f. Finally, the agreement acknowledged that no threats,
promises or representations had been made nor agreements
reached, other than those set forth in the plea agreement itself,
to cause Davis to plead guilty. R. 300 at 16 ¶ 28. In signing the
agreement, Davis acknowledged that he had read, understood,
and accepted its terms. R. 300 at 17 ¶ 29.
As it turned out, the probation officer’s presentence
investigation and report produced Guidelines calculations that
were much less favorable to Davis than those set forth in the
plea agreement. Davis previously had served in the United
States Army, and after receiving his military records, the
probation officer learned that Davis had, contrary to his
representation to her, been discharged from the Army on other
than honorable terms2 and had a disciplinary record that
included convictions at a general court martial (pursuant to his
guilty plea) for the military offenses of fraudulent enlistment,
bigamy, attempted bigamy, and adultery and a 30‐month term
of confinement for those offenses. That record increased the
number of points in Davis’s criminal history, disqualifying him
for a sentence below the 10‐year statutory minimum, and
placed him into a criminal history category of III. Furthermore,
because Davis had, in the probation officer’s view, misrepre‐
2
The probation officer characterized Davis’s discharge as dishonorable.
Davis’s counsel represents that, upon further investigation, it appears that
Davis actually received a so‐called “bad conduct” discharge, which is a
somewhat less serious, although still negative, form of discharge.
No. 14‐3019 7
sented the circumstances of his military discharge and his
disciplinary history,3 the presentence report recommended that
his offense level be increased by two levels pursuant to section
3C1.1 for obstruction of justice.4 Yet another unanticipated two‐
level increase was proposed for the firearms that had been
possessed by Davis’s co‐conspirators. See U.S.S.G.
§ 2D1.1(b)(1).5 The various changes resulted in a Guidelines
sentencing range of 262 to 327 months.
When Davis was sentenced on October 13, 2010, the district
court adopted the Guidelines calculations set forth in the
presentence report. Judge Kapala acknowledged that the
resulting sentencing range was higher than the parties had
anticipated in the plea agreement, but attributed the bulk of the
difference to the fact that “the attorneys did not anticipate that
3
The probation officer also noted that Davis had failed to appear at a
meeting convened to discuss the discrepancy, but the district court did not
consider that absence when it imposed the enhancement for obstruction of
justice. R. 875 at 9, 11.
4
Counsel suggests that because Davis served more than one term in the
military, Davis may have been confused as to which discharge the
probation officer was asking him about rather than deliberately attempting
to misrepresent the circumstances of his discharge. However, any error as
to the enhancement for obstruction of justice would fall within the scope of
the appeal and collateral relief waiver we discuss below. The same is true
with respect to counsel’s additional representation that Davis had disclosed
and discussed his bigamy conviction with the probation officer.
5
The probation officer and the district judge agreed that despite the
enhancement for obstruction of justice, Davis should still receive credit for
acceptance of responsibility given the extent of his cooperation with and
assistance to the government. See U.S.S.G. § 3E1.1, comment. (n.4).
8 No. 14‐3019
[Davis] would lie to the probation officer [and], unfortunately,
the defendant brought the consequences of that lie upon
himself.” R. 875 at 26. Consistent with its obligations under the
plea agreement, the government moved the court pursuant to
section 5K1.1 to depart downward and impose a sentence at 66
percent of the low end of the advisory Guidelines range (which
was obviously higher than the statutory minimum). The judge
granted the motion and ordered Davis to serve a prison term
of 172 months.6
Davis did not appeal from the sentence imposed. Indeed,
in the plea agreement, Davis had largely waived his right to
both appeal his conviction and sentence and to seek collateral
relief under section 2255:
Waiver of appellate and collateral rights. Defen‐
dant further understands he is waiving all appellate
issues that might have been available if he had
exercised his right to trial. Defendant is aware that
Title 28, United States Code, Section 1291, and Title
18, United States Code, Section 3742, afford a defen‐
dant the right to appeal his conviction and the
sentence imposed. Acknowledging this, if the
government makes a motion at sentencing for a
downward departure pursuant to Sentencing
Guideline § 5K1.1, defendant knowingly waives the
right to appeal his conviction, any pre‐trial rulings
6
On September 22, 2015, Davis’s sentence was reduced by agreement to
138 months pursuant to Guidelines amendment 782, which lowered the
offense level for his narcotics‐related offense. See 18 U.S.C. § 3582(c)(2).
No. 14‐3019 9
by the Court, and any part of the sentence (or the
manner in which that sentence was determined),
including any term of imprisonment and fine within
the maximums provided by law, in exchange for the
concessions made by the United States in this Plea
Agreement. Defendant also waives his right to
challenge his conviction and sentence, and the
manner in which the sentence was determined, and
(in any case in which the term of imprisonment and
fine are within the maximums provided by statute)
his attorney’s alleged failure or refusal to file a
notice of appeal, in any collateral attack or future
challenge, including but not limited to a motion
brought under Title 28, United States Code, Section
2255. The waiver in this paragraph does not apply to
a claim of involuntariness, or ineffective assistance
of counsel, which relates directly to this waiver or to
its negotiation, nor does it prohibit defendant from
seeking a reduction of sentence based directly on a
change in the law that is applicable to defendant and
that, prior to the filing of defendant’s request for
relief, has been expressly made retroactive by an Act
of Congress, the Supreme Court, or the United
States Sentencing Commission.
R. 300 at 12‐13 ¶ 19b.
On May 31, 2014, Davis submitted his pro se motion for
relief under section 2255. As relevant here, the motion attacked
his guilty plea and sentence on three grounds. First, Davis
alleged that he was deprived of the effective assistance of
counsel when, at the time of his guilty plea, his lawyer “grossly
10 No. 14‐3019
misinformed” him as to the potential sentence he could
receive. 2255 R. 1 at 9. Second, Davis contended that the district
court ran afoul of the Supreme Court’s subsequent decision in
Alleyne by subjecting him to an enhanced minimum term of
imprisonment based on facts not charged in the indictment or
found by a jury. Third, Davis asserted that his counsel was
ineffective when he failed to file a notice of appeal from his
conviction and sentence despite Davis’s instruction to do so.
The district court dismissed Davis’s section 2255 request on
its own motion as untimely. 2255 R. 3. The court noted that
under section 2255(f), Davis had one year from the date his
conviction became final to file his motion. Davis’s conviction
became final on October 27, 2010, after the 14‐day period in
which to file an appeal from his conviction and sentence
expired; Davis thus had until October 27, 2011, to file his
request for collateral relief. Yet, Davis did not file the motion
until May 31, 2014, more than three and one‐half years later.
The court found no merit to Davis’s contention that his motion
was nonetheless timely because it was filed within one year of
the Supreme Court’s Alleyne decision, because the Supreme
Court had not yet declared that decision retroactively
applicable to cases on collateral review. See Simpson v. United
States, 721 F.3d 875, 876 (7th Cir. 2013). Davis subsequently
asked the district court to reconsider the dismissal, which the
district court declined to do.
We granted Davis a certificate of appealability with respect
to the claim that his counsel was ineffective for failing to file a
notice of appeal, and we also appointed counsel to represent
Davis in this appeal. In briefing the appeal, Davis’s counsel has
addressed other aspects of Davis’s request for relief under
No. 14‐3019 11
section 2255, which may be construed as an implicit request to
expand the certificate of appealability. It is not strictly
necessary for us to rule on that request because, as we explain
below, the district court correctly concluded that Davis’s
section 2255 motion was untimely.
II.
We would be remiss if we did not begin our analysis by
noting the first and most obvious potential obstacle to relief for
Davis, which is his waiver of the right to appeal his conviction
and sentence and to seek collateral relief under section 2255.
We have repeatedly enforced such waivers in the face of
claims, not unlike Davis’s, that a defendant was sentenced to
a term of imprisonment significantly greater than he was led
to expect at the time of his guilty plea. See United States v.
Smith, 759 F.3d 702, 707 (7th Cir.) (“There is no doubt a
defendant may waive his right to challenge a sentence not yet
imposed … .”) (collecting cases), cert. denied, 135 S. Ct. 732
(2014); United States v. Henry, 702 F.3d 377, 380 (7th Cir. 2012)
(“unanticipated sentences do not create grounds for negating
the terms of a plea agreement”) (quoting United States v . Sines,
303 F.3d 793, 799 (7th Cir. 2002)). Davis does not suggest that
the waiver itself was involuntary on his part or the product of
ineffective assistance of counsel—a claim that the waiver itself
authorizes—but he attempts to argue that the grossly
inaccurate advice his attorney allegedly gave him as to the
potential sentence casts the knowing and voluntary nature of
the entire plea agreement, and his guilty plea, into doubt. See
Smith, 759 F.3d at 707 (“The sole type of ineffectiveness claim
we have said that a defendant may not waive is an
ineffectiveness claim having to do with the waiver (or the plea
12 No. 14‐3019
agreement as a whole) and its negotiation.”) (citing Hurlow v.
United States, 726 F.3d 958, 964‐66 (7th Cir. 2013)); see also Solano
v. United States, — F.3d —, 2016 WL 456204, at *3 (7th Cir. Feb.
5, 2016) (“The appeal waiver stands or falls with the plea
agreement.”) (citing United States v. Behrman, 235 F.3d 1049,
1051 (7th Cir. 2000)). Davis insists that he never would have
entered into the plea agreement had he realized he could be
sentenced to a term above the statutory minimum of 10 years.
See generally Morales v. Boatwright, 580 F.3d 653, 659 (7th Cir.
2009) (citing Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370
(1985)).
His claim of involuntariness is difficult to square with the
terms of the plea agreement. As we have discussed, the
agreement expressly noted that the Guidelines calculations
reflected in the agreement were preliminary, that they might
change following the presentence investigation, and that “the
validity of this Agreement is not contingent upon the
probation officer’s or the Court’s concurrence with the above
calculations,” R. 300 at 7 ¶ 10e, all of which is incongruous
with Davis’s alleged reliance upon the sentencing range set
forth in the agreement. Similar admonishments likely were
given to Davis at his change‐of‐plea hearing, although a
transcript of that hearing is not part of the record in this appeal
or in the underlying criminal case. That transcript, coupled
with the admonishments and acknowledgments in the written
plea agreement itself, might well doom Davis’s after‐the‐fact
claim of involuntariness. See Nunez v. United States, 495 F.3d
544, 545‐46 (7th Cir. 2007), cert. granted, judgment vacated, &
remanded on other grounds, 554 U.S. 911, 128 S. Ct. 2990 (2008);
see also Nunez v. United States, 546 F.3d 450, 452 (7th Cir. 2008)
No. 14‐3019 13
(noting that this portion of the original opinion was beyond the
scope of the Supreme Court’s remand). In any case, we need
not address the validity of the plea agreement and its waiver
provision further, as we agree with the district court that
Davis’s section 2255 motion fails on other grounds.
We start with the Alleyne claim. Indubitably, this claim,
which is based on a change in law post‐dating Davis’s plea and
sentence, is one that is not barred by the plea agreement’s
waiver. R. 300 at 13 ¶ 19b; see also § 2255(f)(3). But there are,
nonetheless, multiple problems with the claim. Alleyne holds
that any factual determination that increases the statutory
mandatory minimum term to which a defendant is subject (in
that case, the fact that a defendant “brandished” a gun) must
be charged in the indictment and proven beyond reasonable
doubt to the factfinder. 133 S. Ct. at 2161‐63. It is, first of all, not
at all clear why Alleyne is of any help to Davis. He was subject
to a 10‐year statutory minimum based on the amount of heroin
involved in the trafficking conspiracy—an amount that was
charged in the indictment and to which he pleaded guilty. So
the minimum term was not the result of any determination
made by Judge Kapala at sentencing. Perhaps Davis could
assert a variant of an Alleyne claim in the sense that it was the
judge’s findings as to his criminal history (including his
convictions in the military court martial) that rendered him
ineligible for a below‐minimum sentence. See § 5C1.2(a)(1).
Davis himself points this out in a footnote in his opening brief.
Davis Br. at 12 n.3. The problem with this variant, however, is
that criminal history findings are generally exempt from the
Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000), line
of precedents entitling a defendant to a formal charge and a
14 No. 14‐3019
trial on facts that expose him to harsher penalties. See
Almendarez‐Torres v. United States, 523 U.S. 224, 118 S. Ct. 1219
(1998). And the Supreme Court in Alleyne itself said that it was
“not revisit[ing]” the holding of Almendarez‐Torres. 133 S. Ct. at
2160 n.1. See United States v. Long, 748 F.3d 322, 329 (7th Cir.)
(enhanced mandatory minimum properly applied
notwithstanding that findings as to prior convictions that
triggered the enhancement were made by judge rather than
jury), cert. denied, 134 S. Ct. 2832 (2014). But, in any case, the
clearest impediment to the Alleyne claim is the one that Judge
Kapala cited: the Supreme Court has not held that Alleyne
applies retroactively to cases on collateral review. Our decision
in Simpson notes that it is only the Supreme Court that has
authority to declare Alleyne retroactive, 721 F.3d at 876, and
unless and until it does so, Davis cannot claim the benefit of
Alleyne in a 2255 motion. See also Crayton v. United States,
799 F.3d 623, 624 (7th Cir.), cert. denied, 136 S. Ct. 424 (2015);
Walker v. United States, 810 F.3d 568, 574 (8th Cir. 2016) (“every
circuit to consider this issue has concluded that Alleyne does
not apply retroactively”) (collecting cases). The district court
was thus on firm ground in dismissing this claim.7
7
Davis suggests that he should be able to claim the benefit of Alleyne
without the Supreme Court first declaring Alleyne retroactive because his
case never had the airing that it would have had in a direct appeal (whether
as a result of the appeal waiver in the plea agreement or his attorney’s
alleged ineffectiveness in not filing an appeal). Davis Br. at 18‐19. But one
has nothing to do with the other. Alleyne was decided several years after
Davis’s conviction became final. And as our decision in Simpson makes
clear, we simply do not have the authority to declare Alleyne applicable
retroactively on collateral review—only the Supreme Court has that power.
(continued...)
No. 14‐3019 15
This brings us to the timeliness of the other claims
presented in Davis’s section 2255 motion. Section 2255(f)
imposes a one‐year time limit on the claims asserted in a
section 2255 motion. Although that period may have begun at
different times for different aspects of Davis’s 2255 motion, we
cannot discern a scenario under which any of the other claims
were timely. To the extent Davis is complaining of errors made
at his sentencing or his attorney’s ineffectiveness with respect
to the plea agreement, those claims were known to Davis at the
time his conviction became final—which as the district court
noted, was on October 27, 2010, when the 14‐day time to file an
appeal from his conviction and sentence expired. Thus, Davis
had until October 27, 2011, to seek collateral relief on those
claims. See § 2255(f)(1). As to claims based on subsequent
changes in Supreme Court jurisprudence, the period begins to
run on the date that the Supreme Court recognizes a right or
(as relevant here) deems the right applicable to cases on
collateral review. See § 2255(f)(3). With respect to the claim of
attorney ineffectiveness based on the failure of Davis’s counsel
to follow his instruction and file a timely appeal following his
sentencing, we may assume that Davis did not immediately
realize, at the conclusion of the 14‐day period in which such an
appeal could have been filed, that his counsel had, in fact, filed
no appeal. Still, our cases recognize that a defendant bears a
duty of diligence in monitoring the status of his appeal. See
Ryan v. United States, 657 F.3d 604, 607‐08 (7th Cir. 2011);
Montenegro v. United States, 248 F.3d 585, 592‐93 (7th Cir. 2001),
7
(...continued)
721 F.3d at 876.
16 No. 14‐3019
overruled in part on other grounds by Ashley v. United States,
266 F.3d 671, 674‐75 (7th Cir. 2001). The limited record before
us does not indicate when Davis learned that his counsel had
not filed an appeal, but under no circumstance can we imagine
that, in the exercise of due diligence, it could have taken Davis
more than three years to discover that fact. See § 2255(f)(4)
(specifying that for claims based on newly discovered facts,
one‐year period begins to run when those facts could have
been discovered in the exercise of due diligence). In any case,
the sole basis on which Davis has argued that this claim and
the other claims he has included in his section 2255 motion
apart from the Alleyne claim is the fact that the Alleyne claim
itself is timely, having been filed within one year of the Alleyne
decision. But as every other circuit to have considered the
question has concluded, and we now hold,8 the timeliness of
each claim asserted in either a section 2255 motion or a petition
challenging a state‐court conviction under 28 U.S.C. § 22549
must be considered independently. See DeCoteau v. Schweitzer,
774 F.3d 1190, 1192 (8th Cir. 2014); Capozzi v. United States,
768 F.3d 32, 33 (1st Cir. 2014) (per curiam), cert. denied, 135
S. Ct. 1476 (2015); Zack v. Tucker, 704 F.3d 917, 926 (11th Cir.
2013) (en banc); Prendergast v. Clements, 699 F.3d 1182, 1186‐88
(10th Cir. 2012); Mardesich v. Cate, 668 F.3d 1164, 1169‐71 (9th
Cir. 2012); Bachman v. Bagley, 487 F.3d 979, 982‐84 (6th Cir.
2007); Fielder v. Varner, 379 F.3d 113, 117‐22 (3d Cir. 2004)
8
We previously left this question open. Taylor v. Michael, 724 F.3d 806, 810
n.3 (7th Cir. 2013).
9
See 28 U.S.C. § 2241(d)(1), setting forth time limits for a petition under
section 2254 which parallel those of section 2255(f).
No. 14‐3019 17
(Alito, J.); see also Stallings v. Williams, 2015 WL 1003918, at *3
(S.D. Ill. Mar. 4, 2015), appeal filed (7th Cir. Aug. 26, 2015) (No.
15‐2827); Jefferson v. Duncan, 2015 WL 249646, at *4 n.4 (N.D. Ill.
Jan. 16, 2015); Harris v. Polley, 2014 WL 5025767, at *6 (C.D. Ill.
Oct. 7, 2014); Steele v. Lemke, 2014 WL 148742, at *3 (N.D. Ill.
Jan. 14, 2014); Judkins v. Hardy, 2013 WL 2156038, at *4‐*5 (N.D.
Ill. May 17, 2013); Ramos v. Trancoso, 2010 WL 3025013, at *2‐*3
(N.D. Ill. Aug. 2, 2010). The simple fact that Davis might have
one timely claim to make under section 2255 based on a
Supreme Court precedent issued years after his conviction
otherwise became final does not allow him to tack on
additional, otherwise untimely claims to that one timely claim.
Davis asserts that all of his claims are intertwined, but that is
true only in the sense that they all generally relate to his
sentence, and that is not enough to deem them all timely. The
Supreme Court’s 2013 decision in Alleyne—which in any case
we have said is not a basis for relief to Davis— does not render
his other claims timely.10
10
Davis has suggested in his reply brief that the government breached the
plea agreement by advocating for the sentencing enhancements (including
the enhancement for obstruction of justice) that substantially lengthened the
advisory Guidelines range. See Davis Reply at 7‐8. We find nothing in the
plea agreement that bars the government from agreeing with enhancements
proposed by the probation officer, however. See R. 300 at 7 ¶ 10e. And, of
course, the government did move for the section 5K1.1 departure from the
bottom of the Guidelines range as anticipated by the agreement.
18 No. 14‐3019
III.
For all of the reasons we have discussed, the district court
properly denied/dismissed Davis’s section 2255 motion.
AFFIRMED