In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 16-2437
JOSEPH PERRONE,
Petitioner-Appellant,
v.
UNITED STATES OF AMERICA,
Respondent-Appellee.
____________________
Appeal from the United States District Court for the
Southern District of Illinois.
No. 3:14-cv-00281-DRH — David R. Herndon, Judge.
____________________
ARGUED JANUARY 4, 2018 — DECIDED MAY 14, 2018
____________________
Before WOOD, Chief Judge, and HAMILTON and BARRETT,
Circuit Judges.
BARRETT, Circuit Judge. Terry Learn died after Joseph Per-
rone injected her with 7.5 grams of cocaine. Perrone pleaded
guilty to a single count of unlawful drug distribution and
stipulated that his distribution of the cocaine had caused
Learn’s death. In accordance with Perrone’s plea agreement,
the district court applied a statutory sentencing enhance-
ment that mandates a twenty-year minimum term of impris-
2 No. 16-2437
onment if unlawful drug distribution results in death. The
Supreme Court has since clarified that this provision re-
quires a defendant’s drugs to be a but-for cause of the death,
not merely a contributing cause. Perrone filed a petition for
relief under 28 U.S.C. § 2255 on the ground that the Court’s
narrowed interpretation of the enhancement reveals that he
is actually innocent of causing Learn’s death. In addition, he
asserts that his counsel was ineffective for failing to advise
him of a Seventh Circuit case decided on the day before his
sentencing that interpreted the “death results” enhancement
the same way that the Court ultimately did. He claims that if
he had known that the enhancement required the govern-
ment to show that his cocaine was the but-for cause of
Learn’s death, he would have sought to withdraw his plea.
The district court denied Perrone’s petition, and we affirm its
judgment.
I.
At approximately 4 a.m. on April 17, 2008, Terry Learn
and her coworker Madonna Narog went to Narog’s hotel
room, where they did heroin and cocaine for several hours.
They left the hotel around 8 a.m. to purchase more cocaine,
about fifty dollars’ worth for Learn and twenty-five dollars’
worth for Narog. They returned to the hotel and did cocaine
until close to noon, when Learn left for her shift at Roxy’s
Night Club. Narog saw Learn again around 2 p.m., when
Narog went to the club to pick up some money, and again at
8 p.m., when Narog was beginning her shift and Learn was
ending hers.
After her shift, Learn met her boyfriend, Joseph Perrone,
and went back to his home. According to Perrone, the two
made a suicide pact. After watching Learn inject herself with
No. 16-2437 3
a mixture of cocaine and water, Perrone told her that she had
not taken enough to kill herself. He then prepared and in-
jected 7.5 grams of cocaine into Learn. Perrone later told the
police that Learn convulsed, fell to the floor, and died im-
mediately after he injected her for the last time. He did not
specify the time at which he administered the final injection,
but he said that it happened on April 18th. It was therefore at
least four hours after Narog saw Learn at the shift change
and at least twelve hours after Narog last saw her do any
drugs not distributed by Perrone.
Perrone moved Learn’s body to her apartment. He wiped
his fingerprints off the syringe and put it into Learn’s hand.
As he stipulated in his plea agreement, he aimed “to create
the false impression that Terry Learn had died alone in her
own residence.” The body was not discovered until April
26th, when a concerned neighbor flagged down police to re-
port that she had not seen Learn in several days. Police offic-
ers discovered Learn’s body in her apartment. According to
the coroner’s report, the cause of death was “[c]ombined tox-
icity with cocaine, ethanol and opiates.”
Several months later, Perrone was arrested on an unrelat-
ed firearms charge. He chose that time to confess to police
that he had killed Learn, describing what he had done as
“premeditated murder.” During this interview, he told the
police that he gave Learn one injection of an unspecified
amount of cocaine; during a second interview a few weeks
later, he said that he injected Learn with 7.5 grams of cocaine
in three separate injections of 2.5 grams each.
The government obtained an indictment against Perrone
for distributing a controlled substance in violation of 21
U.S.C. §§ 841(a)(1) and 841(b)(1)(C). The indictment specified
4 No. 16-2437
that Learn died as a result of Perrone’s distribution, which, if
proved, would enhance his statutory sentencing range under
§ 841(b)(1)(C). That provision mandates a twenty-year min-
imum sentence if “death or serious bodily injury results
from the use” of the unlawfully distributed substance.
Perrone pleaded guilty. In his plea agreement, he admit-
ted that his conduct had violated the “death results” provi-
sion—namely, he stipulated that “the ingestion of the con-
trolled substance distributed by the Defendant caused the
death of another person.” He also signed a stipulation of
facts admitting that he “injected Terry Learn with a syringe
containing cocaine” and that she “died immediately after
receiving the injection.” At his plea hearing a few weeks lat-
er, Perrone stated that he had read the documents, that he
understood them, and that they were accurate.
On the day before Perrone was sentenced, the Seventh
Circuit decided United States v. Hatfield, 591 F.3d 945 (7th Cir.
2010), which held that the “death results” enhancement re-
quires the government to prove that “ingestion of the de-
fendants’ drugs was a ‘but for’ cause of the death[].” Id. at
948. Hatfield rejected jury instructions that used vaguer, less
demanding language to describe the necessary causal rela-
tionship; it said that the district court could not summarize
the “death results” enhancement as requiring the jury to find
only that the illegal drugs “played a part” in the victim’s
death. Id. at 949.
At sentencing the next day, the district court applied the
“death results” enhancement and sentenced Perrone to 240
months’ imprisonment. Before imposing the sentence, the
district judge said that he had reviewed Perrone’s Stipulation
of Facts to see “what impact, if any, the Rex Hatfield case
No. 16-2437 5
was going to have on this case.” Perrone’s attorney did not
engage this point with the judge, nor did he inform Perrone
about Hatfield. Instead, he once again agreed that the sen-
tencing enhancement applied. Perrone did not appeal his
sentence. He eventually received an 80-month reduction of
his sentence for assistance to the government, a possibility
contemplated by the plea agreement and that Perrone and
the district court had discussed at his sentencing hearing.
Four years later, the Supreme Court decided Burrage v.
United States, 134 S. Ct. 881 (2014), which effectively ratified
Hatfield’s standard of causation. The Court held that the
“death results” enhancement ordinarily requires the gov-
ernment to prove that the victim would have lived but for
the unlawfully distributed drugs. Id. at 888. In Burrage, the
victim died with multiple drugs in his bloodstream, includ-
ing metabolites from heroin that had been distributed by the
defendant. Although morphine, a heroin metabolite, was the
only drug present at a level above the therapeutic range, the
government’s experts could not say whether the victim
would have lived if he had not taken the heroin. They testi-
fied only that heroin was a “contributing factor” to a death
caused by “mixed drug intoxication.” That testimony dove-
tailed with instructions requiring the jury to find “that the
heroin distributed by the Defendant was a contributing
cause of [the victim’s] death.” Id. at 886. The Court said that
the statute requires the government to show more than that
the distributed drug contributed to the victim’s death. The
enhancement applies when “death or serious bodily injury
results from the use of [the distributed] substance,” which
means that the substance must be a “but for” cause of the
death. Id. at 887–88.
6 No. 16-2437
Within a month of Burrage, Perrone filed a petition to va-
cate or alter his sentence pursuant to 28 U.S.C. § 2255. His
initial petition asserted that the new interpretation of the
“death results” enhancement announced in Burrage renders
him actually innocent of causing Learn’s death. In his reply
brief below, Perrone added a claim that his attorney had
been constitutionally ineffective for not telling him about
Hatfield.
The district court dismissed Perrone’s claims with preju-
dice. We granted a certificate of appealability on three ques-
tions: whether Perrone was actually innocent of his sentence
under Burrage, whether Perrone’s sentencing counsel had
been constitutionally ineffective for failing to address the is-
sue of causation in light of Hatfield, and whether Perrone’s
plea was knowing and voluntary. Perrone presses only the
first two of these arguments on appeal.
II.
Perrone’s strongest argument is that he is actually inno-
cent of the “death results” sentencing enhancement. He
claims that when he entered his plea agreement and pleaded
guilty, he did not know that the enhancement required but-
for causation. Since then, Burrage has made the standard
clear, and under it, he says, there is insufficient evidence to
show that Learn’s death resulted from the cocaine he gave
her. Although Perrone generally waived his right to raise col-
lateral challenges, the waiver excludes collateral attacks
based on “any subsequent change in the interpretation of the
law” by the Supreme Court that is declared retroactive and
renders Perrone innocent.
No. 16-2437 7
A.
The government contends that Perrone procedurally de-
faulted his Burrage claim by failing to raise it on direct ap-
peal. McCoy v. United States, 815 F.3d 292, 295 (7th Cir. 2016)
(“A claim cannot be raised for the first time in a § 2255 mo-
tion if it could have been raised at trial or on direct appeal.”).
In response, Perrone has invoked the “actual innocence” ex-
ception, which permits a petitioner to assert a defaulted
claim if he “can demonstrate that he is ‘actually innocent’ of
the crimes of which he was convicted.” Id. Perrone’s invoca-
tion of this exception means that “actual innocence” does
double duty in this case: it is both what Perrone must show
to overcome procedural default and the standard he must
satisfy to prevail on the merits of his Burrage claim.
Perhaps because of this overlap, both parties assume (as
did the district court) that the “actual innocence” exception
to procedural default is available to Perrone. That assump-
tion is doubtful. The point of the exception is to ensure that
“federal constitutional errors do not result in the incarcera-
tion of innocent persons.” Herrera v. Collins, 506 U.S. 390, 404
(1993). The Supreme Court has flagged the possibility that
actual innocence might be enough to justify collateral relief
in a capital case on the theory that the execution of one who
is actually innocent violates the Eighth Amendment. Id. at
405. Apart from that potential exception, however, the
Court’s “habeas jurisprudence makes clear that a claim of
‘actual innocence’ is not itself a constitutional claim, but in-
stead a gateway through which a habeas petitioner must
pass to have his otherwise barred constitutional claim con-
sidered on the merits.” Id. at 404. This is a problem for Per-
rone. He does not ask us to determine that he is actually in-
8 No. 16-2437
nocent so that we can consider a claim of constitutional er-
ror; rather, his innocence of the “death results” enhancement
is the error he asks us to correct.1
The government, however, has not made this argument.
Instead, apparently believing that default and the merits will
rise or fall together, it has treated Perrone’s assertion of the
“actual innocence” exception as functionally no different
from his claim on the merits to be actually innocent of the
“death results” enhancement. Procedural default is a wai-
vable defense, not a jurisdictional bar. We treat the govern-
ment as having waived the defense and analyze Perrone’s
petition on the merits.
1 Perrone’s petition for a certificate of appealability appeared to con-
nect his Burrage claim to a constitutional argument insofar as he sought
review of the question whether his plea was “knowing and voluntary.”
Cf. Bousley v. United States, 523 U.S. 614, 623 (1998) (holding that petition-
er could seek relief on his otherwise procedurally barred claim that his
guilty plea was not voluntary and intelligent if he could demonstrate his
actual innocence of the offense to which he had pleaded guilty). But Per-
rone abandoned that argument on appeal as a separate ground for relief.
He mentions it only in the context of his claim that he received inade-
quate assistance of counsel; he contends that if his lawyer had told him
about Hatfield, he would have been able to withdraw his plea as not
knowing and voluntary. His ineffective-assistance claim is not the consti-
tutional claim for which “actual innocence” serves as the gateway, be-
cause that claim is not procedurally defaulted. Vinyard v. United States,
804 F.3d 1218, 1227 (7th Cir. 2015) (“The Supreme Court has definitively
held that ineffective-assistance claims need not be presented on direct
appeal to preserve them for collateral attack under § 2255….”).
No. 16-2437 9
B.
Perrone’s petition claims that the Supreme Court’s nar-
rowed interpretation of the “death results” enhancement
renders him actually innocent of causing Learn’s death. The
Supreme Court has held that when a subsequent statutory
interpretation narrows the elements of a crime, revealing
that the petitioner has been convicted and sentenced for “an
act that the law does not make criminal,” the petitioner has
suffered “a complete miscarriage of justice” that justifies re-
lief under § 2255. Davis v. United States, 417 U.S. 333, 346–47
(1974). We have extended the reasoning of Davis to mandato-
ry sentencing enhancements. In Narvaez v. United States, 674
F.3d 621, 627–28 (7th Cir. 2011), we held that when a peti-
tioner’s sentence is increased by application of an enhance-
ment of which he was actually innocent, the petitioner has
suffered a “miscarriage of justice” cognizable under
§ 2255(a). See also Brown v. Caraway, 719 F.3d 583, 588 (7th Cir.
2013) (holding that a claim identical to the one raised under
§ 2255(a) in Narvaez “constitutes a miscarriage of justice cor-
rigible in a § 2241 proceeding.”). Thus, regardless whether
we treat Perrone’s petition as challenging his conviction or
his sentence (a choice that bears on the standard of review,
as we explain below), Perrone has stated a claim under
§ 2255.
The parties agree that Perrone has a cognizable claim,2
but they disagree about the standard we should apply in as-
2 While the government concedes that Perrone’s claim is viable un-
der our precedent, it invites us to overrule that precedent. We decline the
invitation.
10 No. 16-2437
sessing whether Perrone is actually innocent of causing
Learn’s death. Perrone argues that the standard should be
the one that Schlup v. Delo provides for determining “actual
innocence” in the context of procedural default. In Schlup,
the Court held that “a petitioner must show that it is more
likely than not that no reasonable juror would have found
petitioner guilty beyond a reasonable doubt.” 513 U.S. 298,
327 (1995). The government, in contrast, says that Perrone
must show that it is more likely than not that no reasonable
judge would have found him guilty by a preponderance of
the evidence. The government’s insistence on a “preponder-
ance” standard is grounded in its belief that we must treat
Perrone’s petition as asserting innocence of a sentencing fac-
tor rather than innocence of an element of the crime.
The government stresses that when Perrone pleaded
guilty and was sentenced, the “death results” enhancement
was treated as a sentencing factor that a judge could find by
a preponderance of the evidence. That changed with Alleyne
v. United States, 570 U.S. 99 (2013), which held that any fact
that increases the mandatory minimum sentence for a crime
is an element of a crime that must be submitted to a jury and
found beyond a reasonable doubt. Alleyne, however, is not
retroactive on collateral review. Crayton v. United States, 799
F.3d 623, 624 (7th Cir. 2015). The government reasons that
this means that we must evaluate the sufficiency of the evi-
dence supporting the application of the enhancement to Per-
rone as the issue would have been resolved at the time Per-
No. 16-2437 11
rone was sentenced: through the eyes of a judge and by a
preponderance standard.3
The government’s position is inconsistent with our hold-
ing in Krieger v. United States, 842 F.3d 490 (7th Cir. 2016).
There, in holding that Burrage announced a substantive rule
that applies retroactively on collateral review, we described
the “death results” enhancement as the Supreme Court did
in Burrage: as an element of the crime. Krieger, 842 F.3d at 500
(“[T]he rule announced in Burrage altered the range of con-
duct that the law punishes.”); Burrage, 134 S. Ct. at 887 (char-
acterizing the “death results” enhancement as “an element
that must be submitted to the jury and found beyond a rea-
sonable doubt”). Had we thought ourselves bound by Al-
leyne’s non-retroactivity (which we acknowledged) to treat
Burrage as changing only the scope of a sentencing factor, we
presumably would have relied on Narvaez when we held
that Krieger’s Burrage error was cognizable under § 2255. In-
stead, consistent with Burrage’s treatment of the enhance-
ment as an element of the crime, we relied on the progeny of
Davis v. United States, 417 U.S. 333 (1974) to hold that Krieger
3 The government also asserts that Perrone’s petition described his
challenge as going to his sentence rather than his conviction and that this
is another reason we should treat it that way. Gov’t Brief at 24 (quoting
Perrone’s petition, which provided that “the Petitioner[’s] sentence ex-
ceeds that which is otherwise authorized by law and Perrone, in light of
Burrage, supra, should be resentenced accordingly”). Putting aside
whether that is a fair characterization of Perrone’s pro se petition, we are
not bound to accept a party’s characterization of a question of law. Krieg-
er v. United States, 842 F.3d 490, 499 (7th Cir. 2016) (“Of course we are not
bound to accept the government’s concession [that Burrage is retroactive]
when the point at issue is a question of law.”).
12 No. 16-2437
could assert her claim. Krieger, 842 F.3d at 497–500. It is
worth noting that the government itself conceded in Krieger
that “Burrage is substantive because it defines an essential
element of a federal crime….” 842 F.3d at 497. And even in
circuits that maintain—contrary to our approach in Nar-
vaez—that a challenge to a mandatory sentencing enhance-
ment is not cognizable on collateral review, Burrage claims
are cognizable precisely because they go to the validity of a
conviction rather than to the validity of a sentence. Compare
Sun Bear v. United States, 644 F.3d 700, 705 (8th Cir. 2011) (en
banc) (holding that an error under the mandatory guidelines
was not a miscarriage of justice because the petitioner’s sen-
tence remained “within the statutory maximum authorized
for the offense”), with Ragland v. United States, 784 F.3d 1213,
1214 (8th Cir. 2015) (holding that a petitioner’s challenge un-
der Burrage is “a challenge to the validity of his conviction”).
To be sure, Krieger did not address the standard of review
that would be applicable when a court collaterally reviews
whether there is sufficient evidence to support application of
the enhancement according to Burrage’s standard of but-for
causation. In that respect, Krieger technically leaves the
standard-of-review question open. Yet it would be in signifi-
cant tension with Krieger’s treatment of the enhancement as
an element of the crime to review Perrone’s claim under the
regime previously applicable to sentencing factors.
We thus reject the government’s attempt to slice Burrage’s
characterization of the “death results” enhancement (as an
element of crime) away from its definition of what applica-
tion of that enhancement requires (but-for causation). Be-
cause Alleyne is not retroactive, Perrone could not get relief
on the ground that the “death results” question went to a
No. 16-2437 13
judge rather than jury. Once he is before us with a cognizable
claim, however, there is no reason for us to describe his
claim as something it is not. Burrage, unlike Alleyne, is retro-
active, and it makes clear that Perrone’s claim goes to his in-
nocence of a crime, not a sentence. Whether the government
has proven an element of the crime is always a question for
the jury. That means that Perrone’s burden is to show that it
is more likely than not that no reasonable juror would have
found him guilty beyond a reasonable doubt of causing
Learn’s death. Schlup, 513 U.S. at 327.
C.
This dispute is about causation, so we will begin by clear-
ly stating what “but for” causation requires. It does not re-
quire proof that the distributed drug was present in an
amount sufficient to kill on its own. The Court explained in
Burrage that death can “result[] from” a particular drug
when it is the proverbial “straw that broke the camel’s back.”
134 S. Ct. at 888. As the Court put it: “if poison is adminis-
tered to a man debilitated by multiple diseases, it is a but-for
cause of his death even if those diseases played a part in his
demise, so long as, without the incremental effect of the poi-
son, he would have lived.” Id. Here, then, the fact that other
substances in Learn’s bloodstream played a part in her death
does not defeat the government’s claim that her death result-
ed from the cocaine Perrone gave her. A jury could have
found him guilty of causing her death if it concluded beyond
a reasonable doubt that Perrone’s cocaine pushed her over
the edge.
In Burrage, the Court left open the possibility that the
government could prove causation another way: it said that
strict “but-for” causation might not be required when “mul-
14 No. 16-2437
tiple sufficient causes independently, but concurrently, pro-
duce a result.” 134 S. Ct. at 890. In other words, the “death
results” enhancement might apply to a defendant who dis-
tributes a lethal dose of cocaine to a person who also con-
sumes a lethal dose of heroin. The government suggests that
a jury could have found Perrone guilty on this theory as
well, because Perrone gave Learn a lethal amount of cocaine.
We need not decide whether this second theory is viable,
however, because there is sufficient evidence to have permit-
ted a jury to find Perrone guilty on the first.
Perrone admitted that he distributed 7.5 grams of cocaine
to Learn in a deliberate attempt to kill her, that he personally
injected Learn with cocaine intending to kill her, and that
she convulsed and died immediately after he injected her.
That in itself strongly supports the conclusion that Learn’s
death resulted from the cocaine Perrone administered. It also
distinguishes Perrone from the defendants in Burrage, Hat-
field, and Krieger, none of whom stated that they had distrib-
uted the drug to the user with the intent to kill.
The best evidence on Perrone’s side is the coroner’s re-
port, which listed the cause of death as “[c]ombined toxicity
with cocaine, ethanol and opiates.” This, Perrone says, is the
kind of evidence the Court found insufficient to establish
causation in Burrage. There, a state medical examiner testi-
fied that the drug user died of “mixed drug intoxication,”
with a number of substances, including the heroin distribut-
ed by the defendant, all playing a “‘contributing’ role.” Bur-
rage, 134 S. Ct. at 886. And the two medical experts who testi-
fied at the defendant’s trial stated that they could not say
whether the drug user would have lived had he not taken
the defendant’s heroin. Id. at 885–86. So here, Perrone says,
No. 16-2437 15
the coroner’s report indicates that cocaine combined with
other drugs to cause Learn’s death. And when the coroner,
Dr. Raj Nanduri, testified before the grand jury, she never
expressly opined that Learn would have lived if she had not
consumed the cocaine Perrone gave her.
Before the grand jury, the government seemed focused on
eliciting testimony that the cocaine Perrone distributed was
independently sufficient to kill Learn. Nanduri repeated the
conclusion she reached in the autopsy report: that Learn’s
cause of death was the combined toxicity of cocaine, ethanol,
and opiates.4 When the prosecutor followed up with a ques-
tion about which substance was “primarily responsible for
her death,” Nanduri clarified that “if she just had cocaine in
her system and the other two drugs were not present, then
cocaine would be the toxic agent that killed her.” The prose-
cutor returned to this point a few minutes later, saying “I
don’t mean to beat this into the ground, but it is a very im-
portant point for us. It is your testimony under oath that to a
medical certainty this quantity of cocaine found in this
woman’s blood would have killed her all by itself?” Nanduri
replied “yes.” Nanduri repeated several more times before
the grand jury that the cocaine in Learn’s bloodstream was a
lethal dose. She did not, however, testify that alcohol and
morphine in Learn’s system were not lethal. She said that the
alcohol was not at a level she would expect to be fatal, but
she expressed uncertainty about the role the morphine had
played in Learn’s death. Although Learn’s morphine level
4 Nanduri testified that she used the term “opiates” because heroin
and other opiates are metabolized into morphine, which is what Nanduri
identified in Learn’s blood.
16 No. 16-2437
was low, Nanduri explained that whether such a low dose
could kill a person depends on numerous factors, including
the person’s past history of using opiates. She also said that a
person’s morphine level might be deceptively low if the per-
son became comatose and continued metabolizing the mor-
phine before dying.
Nanduri’s testimony thus does not establish that cocaine
was the but-for cause of Learn’s death. But the government
has testimony from another expert, Dr. Chris Long, who did
expressly state that Learn would have lived but for the co-
caine. Long prepared a toxicology report on Learn’s body in
2008. After reviewing his report in 2014, he confirmed that
the alcohol would not have killed Learn “absent the cocaine”
and that “[t]he opiate is of no significance.” A reasonable ju-
ror could credit Long’s testimony.
Perrone’s best response is to say that even if cocaine
caused Learn’s death, the cocaine that killed her was not the
cocaine he gave her. Learn had, after all, done a fair amount
of cocaine with Narog the day before. And given her pattern
of cocaine use, it is at least possible that Learn did some co-
caine during her shift at work. Perrone may have injected
cocaine into a woman with an already-lethal amount of co-
caine in her body.
This evidence helps Perrone, but only a little. There is no
evidence that Learn acquired or took any cocaine between
starting her shift at noon and meeting up with Perrone
sometime after the 8 p.m. end of her shift, and Narog testi-
fied before the grand jury that it was not usually possible to
take drugs while at work. Furthermore, even if Learn took
some cocaine between noon and whenever she met up with
Perrone, a rational factfinder could easily conclude that she
No. 16-2437 17
would have taken only a nonlethal dose. Narog testified be-
fore the grand jury that Learn was a practiced drug user who
was very particular about the amount of cocaine she injected
and rarely varied. That evidence paints a picture of a woman
who met up with Perrone while she was still on track to sur-
vive the night.
That Learn arrived at Perrone’s without enough cocaine
in her system to kill her is bolstered by what happened
when she got there. Perrone said that the two had a suicide
pact, which suggests that they both thought Learn needed to
consume more drugs if she wanted to end her life. And after
Learn injected herself with a dose of cocaine, Perrone himself
made the judgment that what she had taken was not enough
to kill her. According to his own statement, he gave Learn an
additional 7.5 grams of cocaine because he concluded that
she would not die unless she had more. He told the police
that Learn convulsed and fell to the floor immediately after
he injected her, and he later characterized what he did as
“premeditated murder.” In his stipulation of facts, Perrone
admitted that Learn died “immediately after receiving the
injection.”
Given this evidence, Perrone cannot carry his burden of
showing that it is more likely than not that no reasonable ju-
ror would have voted to find him guilty beyond a reasonable
doubt. He is thus not entitled to relief on the ground that he
is actually innocent of causing Learn’s death.
III.
Perrone also argues that his sentencing counsel was con-
stitutionally ineffective for failing to tell him about (and pos-
sibly not even knowing about) Hatfield. Had Perrone been
18 No. 16-2437
aware of Hatfield, he says, he might have sought the court’s
permission to withdraw his plea on the ground that it was
not knowing and voluntary. Because he did not know that
the “death results” enhancement required the government to
show but-for causation, he did not correctly understand
what he was pleading to when he stipulated that he
“caused” Learn’s death.
To prevail on his ineffective assistance claim, Perrone
must show both deficient performance and prejudice. Strick-
land v. Washington, 466 U.S. 668, 687 (1984). On the perfor-
mance prong, he “must overcome the ‘strong presumption
that counsel’s conduct falls within the wide range of reason-
able professional assistance.’” Wyatt v. United States, 574 F.3d
455, 458 (7th Cir. 2009) (quoting Strickland, 466 U.S. at 689).
On the prejudice prong, he must show that “but for counsel’s
errors, there is a reasonable probability that the result would
have been different.” United States v. Graf, 827 F.3d 581, 584
(7th Cir. 2016). In the context of a guilty plea, a petitioner
demonstrates prejudice by “show[ing] that there is a reason-
able probability that, but for counsel’s errors, he would not
have pleaded guilty and would have insisted on going to tri-
al.” Hill v. Lockhart, 474 U.S. 52, 59 (1985). As with the first
prong, there is a presumption that the petitioner has not suf-
fered prejudice. Graf, 827 F.3d at 584–85.
Even assuming that Perrone could show “deficient per-
formance” on the part of his counsel, it is unlikely that he
could satisfy the “prejudice” prong. The evidence of causa-
tion was strong and his plea agreement gave him the oppor-
tunity to obtain a sentence reduction for cooperating with
the government. The fact that he wants to withdraw from
the agreement now—after he has already received an 80-
No. 16-2437 19
month reduction—does not mean that he would have want-
ed to do so before he received that benefit. The problems of
proof he would face at resentencing make it doubtful that he
would have put his deal at risk even if he had known about
Hatfield. They also make it doubtful that the district judge
would have permitted him to withdraw his plea. See United
States v. Underwood, 174 F.3d 850, 852–54 (7th Cir. 1999) (not-
ing that “[n]o defendant has an absolute right to withdraw a
guilty plea” and that the utility of plea agreements would be
undermined by allowing a defendant to renege based on his
“reevaluation of his trial prospects”).
At the end of the day, however, any difficulties Perrone
has on the merits do not matter because his claim is barred
as untimely. Although he was not required to bring his inef-
fective-assistance claim in his direct appeal, Massaro v. United
States, 538 U.S. 500, 509 (2003), he was still required to com-
ply with § 2255(f)’s statute of limitations. Under § 2255(f)(1),
Perrone had to bring his claim within one year of his convic-
tion becoming final, which means that his window closed in
2011.5 He did not file his § 2255 petition until 2014. Other
claims in Perrone’s 2014 petition may have been timely based
on the Supreme Court’s 2014 decision in Burrage, but § 2255’s
statute of limitations runs separately for each claim. Davis v.
United States, 817 F.3d 319, 327–28 (7th Cir. 2016). One claim’s
timeliness cannot cure another claim’s untimeliness.
5 Although § 2255(f) offers several different starting points for the
one-year statute of limitations depending on the situation, no party con-
tends that any starting point applies other than the day Perrone’s convic-
tion became final.
20 No. 16-2437
Perrone does not dispute that his claim is untimely. In-
stead, he attempts to escape the bar by contending that the
government forfeited its statute-of-limitations defense. Per-
rone raised his ineffective-assistance claim before the district
court for the first time in his reply to the government’s re-
sponse brief. He faults the government for not asserting the
limitations defense in response, but the district court’s local
rules prohibited the government from filing a surreply. True,
the district court chose to treat Perrone’s reply brief as an
amended petition, so it appears with the benefit of hindsight
that the government could have filed a new response. But
the filing was denominated as a reply brief, not as an
amended petition; it did not reproduce the claims that had
appeared in Perrone’s original petition; and Perrone had re-
peatedly told the district court that his court-appointed
counsel was not authorized to amend his petition. It was
therefore reasonable for the government to conclude that it
lacked the ability under the local rules to respond to the
newly raised claim of ineffective assistance. And even if this
were forfeiture, we would find it excused due to the under-
standable confusion in the district court. See Wood v. Milyard,
566 U.S. 463, 471 (2012) (allowing a court of appeals to con-
sider even sua sponte “a nonexhaustion argument ‘inadvert-
ent[ly]’ overlooked by the State in the District Court”). Be-
cause Perrone filed his petition after § 2255(f)’s statute of lim-
itations had run, he is barred from raising that claim now.
IV.
The district court also correctly denied Perrone’s motion
for an evidentiary hearing on his claims. A petitioner under
§ 2255 is entitled to an evidentiary hearing “[u]nless the mo-
tion and the files and records of the case conclusively show
No. 16-2437 21
that the prisoner is entitled to no relief.” 28 U.S.C. § 2255(b).
When the record before the district court allows it to resolve
the petition without such a hearing, the petitioner is not enti-
tled to one. Rodriguez v. United States, 286 F.3d 972, 986–87
(7th Cir. 2002) (affirming the denial of an evidentiary hearing
when “[a] hearing would not have aided the district court”).
Because Perrone has not raised any claim whose resolution
requires an evidentiary hearing, the district court did not
abuse its discretion in denying Perrone’s request.
V.
For the reasons stated above, the judgment of the district
court is AFFIRMED.