In the
United States Court of Appeals
For the Seventh Circuit
No. 10-2564
T REVOR K. R YAN,
Petitioner-Appellant,
v.
U NITED STATES OF A MERICA,
Respondent-Appellee.
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 3:10-cv-00295-bbc—Barbara B. Crabb, Judge.
A RGUED JULY 12, 2011—D ECIDED S EPTEMBER 16, 2011
Before B AUER, C UDAHY and T INDER, Circuit Judges.
B AUER, Circuit Judge. Trevor K. Ryan, now in federal
prison for possessing marijuana with intent to distribute
it, see 21 U.S.C. § 841(a)(1), appeals the summary denial of
his motion to vacate his conviction and sentence, see 28
U.S.C. § 2255. He contends principally that the district
court should have granted him an evidentiary hearing
on his claim that one or both of his lawyers deprived him
of the right to counsel by failing to comply with his
2 No. 10-2564
request to file a notice of appeal. Ryan challenges the
district court’s conclusion that his motion was untimely.
We vacate the judgment and remand the case for addi-
tional fact-finding.
I. BACKGROUND
Because the case turns on counsel’s alleged failure to
pursue a direct appeal, the facts underlying Ryan’s con-
viction require little discussion. Briefly, Ryan flew a
propeller plane loaded with more than 150 pounds of
marijuana from California to Wisconsin; was caught;
pleaded guilty to violating 21 U.S.C. § 841(a)(1); and was
sentenced to 65 months’ imprisonment, 3 years’ super-
vised release, and forfeiture under 21 U.S.C. § 853 of
the plane, a car, and some other items.
Critically for this appeal, neither Ryan nor his lawyers
filed a timely notice of appeal from the conviction or
sentence. Ryan’s sentence therefore became final on
March 26, 2009, when the 10-day deadline for appealing
expired. On May 26, 2010, Ryan, now acting pro se, filed
a motion to vacate under 28 U.S.C. § 2255, claiming in
relevant part that counsel abandoned him on direct
review by failing to file a notice of appeal, despite
his instructions to do so. In his sworn motion and ac-
companying memorandum (also sworn), Ryan posed
the allegation three times:
(1) “Counsel failed to file notice of appeal when re-
quested he do so.”
(2) “After sentencing, petitioner requested that defense
counsel file an appeal. Defense counsel failed to file
No. 10-2564 3
an appeal, and failed to advise petitioner of the
10 day time constraint.”
(3) “Petitioner requested at the time of sentencing
that his counsel file an appeal on his behalf, and was
under the impression that this was being done. . . .
Petitioner was under the impression that counsel
was following his wishes. It was not until months
later he discovered no notice had been filed.”
Ryan swore that neither his lawyers nor the district court
informed him of the 10-day deadline for appeals, and the
sentencing transcript bears out his allegation about the
district court’s omission.
Anticipating an affirmative defense that his motion to
vacate was untimely, Ryan contended that the statute of
limitations did not start running under 28 U.S.C.
§ 2255(f)(4)—which governs the limitations period for
claims arising from newly discovered facts—until at
least May 26, 2009, one year before he filed his motion,
because a reasonably diligent prisoner would not have
known before then that counsel had failed to file an
appeal. Alternatively, he argued that the limitations
period did not start under § 2255(f)(2)—which governs
the period for motions whose filing is impeded by the
government—until June 4, 2009, when he arrived at the
prison where he is currently housed; he alleged in
support that he was “in transit” for the first three
months of his confinement, and that prison officials
did not grant him access to a law library or his own
legal papers during that time. Finally, in the event that
the limitations period started under § 2255(f)(1) when
4 No. 10-2564
his conviction became final, Ryan asked the court to
equitably toll the limitations period. On these timeliness
issues and the substantive claim, Ryan sought discovery
and a hearing.
The district court denied Ryan’s motion without re-
questing a response from the government or further
information from Ryan. The court concluded that the
motion was untimely under § 2255(f)(1). The court re-
jected Ryan’s argument for equitable tolling, explaining
that even if his transit period kept him from filing a
motion right away, a diligent prisoner would have done
so in the nine months that followed. The court did not
address Ryan’s distinct argument that, under either sub-
section (f)(2) or (f)(4), the one-year limitations period
did not start running until less than one year before
he filed his motion.
Ryan sought reconsideration, reiterating his argument
under subsection (f)(4), but the district court denied
the motion to reconsider and denied him a certificate of
appealability. This court certified Ryan’s appeal on his
claim that counsel abandoned him.
II. DISCUSSION
When a defendant in a criminal case specifically
instructs a lawyer to file a notice of appeal, the
lawyer’s failure to do so deprives the defendant of the
Sixth Amendment right to counsel, regardless of whether
an appeal was likely to succeed. Roe v. Flores-Ortega, 528
U.S. 470, 477 (2000); Peguero v. United States, 526 U.S. 23, 28
No. 10-2564 5
(1999); Rodriquez v. United States, 395 U.S. 327, 330 (1969);
Gant v. United States, 627 F.3d 677, 681 (7th Cir. 2010),
cert. denied, 131 S. Ct. 1840 (2011); Castellanos v. United
States, 26 F.3d 717, 718 (7th Cir. 1994). That is what Ryan
claimed in the district court and argues here: he asked
counsel to file a notice of appeal, and they failed to do so.
If the allegation is true and the § 2255 motion is not
barred on timeliness grounds, Ryan is entitled to have
his criminal judgment vacated and reimposed to permit
a direct appeal. See United States v. Hirsch, 207 F.3d 928,
931 (7th Cir. 2000); Castellanos, 26 F.3d at 720.
The government rightly concedes these general princi-
ples, but argues, first, that Ryan’s sworn allegations were
so poorly drafted that dismissing the motion without
addressing the merits or calling for development of the
record was proper. We disagree: Ryan clearly alleged a
violation of his right to appeal by counsel. Having ade-
quately alleged a constitutional violation, the only other
question to ask is whether Ryan had personal knowledge
of the facts underlying his claim and, if so, whether
anything made the allegations “palpably incredible” or
discovery otherwise pointless. Machibroda v. United
States, 368 U.S. 487, 495 (1962); Lafuente v. United States,
617 F.3d 944, 946 (7th Cir. 2010); see also Mahaffey v. Ramos,
588 F.3d 1142, 1145 (7th Cir. 2009) (discussing pleading
standards in habeas corpus cases), cert. denied, 130 S. Ct.
3503 (2010); Kafo v. United States, 467 F.3d 1063, 1068
(7th Cir. 2006) (recognizing that a movant’s “verified
statement alone” can count as evidence to support
claims); Bruce v. United States, 256 F.3d 592, 597 (7th
Cir. 2001) (noting that 28 U.S.C. § 2255(b) allows the court
6 No. 10-2564
to forgo a hearing if the papers before it “conclusively
show” that the prisoner is entitled to no relief). Here, the
record clearly shows that no notice of appeal was filed,
and Ryan would know whether and when he asked
counsel to file an appeal. Moreover, there is nothing
incredible about his allegations, nor is there confusion
about the other evidence Ryan may need (such as an
affidavit or oral testimony from counsel).1
The government counters that Ryan fatally contradicts
himself by alleging both that he instructed counsel to
appeal and that counsel failed to consult him about
appealing, but a more natural reading of these allega-
tions is that Ryan told his counsel to appeal, and counsel
thereafter failed to consult him. Similarly, Ryan muddies
the waters by alleging that he told counsel “[a]fter sen-
tencing” and “at the time of sentencing” to appeal, but
these seemingly contradictory allegations could mean
that he made the request twice, or that he did so immedi-
1
For the benefit of future litigants, we advise against using one
label repeatedly deployed in the government’s brief, “self-
serving,” to describe an opponent’s sworn testimony. Impor-
tant testimony of a party is usually self-serving by its nature.
Catalan v. GMAC Mortg. Corp., 629 F.3d 676, 696 (7th Cir. 2011);
Payne v. Pauley, 337 F.3d 767, 772 (7th Cir. 2003). In other
contexts we “long ago buried—or at least tried to bury—the
misconception that uncorroborated testimony from the non-
movant cannot prevent summary judgment because it is ‘self-
serving.’ ” Berry v. Chicago Transit Auth., 618 F.3d 688, 691 (7th
Cir. 2010), quoted in Trinity Homes LLC v. Ohio Cas. Ins. Co., 629
F.3d 653, 660 (7th Cir. 2010). The same principle holds true
for habeas corpus petitions and § 2255 motions.
No. 10-2564 7
ately following his sentencing hearing. And the gaps the
government identifies in Ryan’s allegations—precisely
when Ryan asked his lawyer to appeal, who else might
have witnessed his request, which officials denied
Ryan access to a law library—show only that further
proceedings would be helpful, not that Ryan has conclu-
sively pleaded himself out of court. See Machibroda, 368
U.S. at 495 (“We cannot agree with the Government that
a hearing in this case would be futile because of the
apparent lack of any eyewitnesses to the occurrences
alleged, other than the petitioner himself and the
Assistant United States Attorney.”).
Turning to the question of timeliness, Ryan contends
that under 28 U.S.C. § 2255(f)(4) or (f)(2), the limitations
period for filing his § 2255 motion did not start running
until at least May 26, 2009, two months after his convic-
tion became final and one year before he signed the
motion. When a limitations period starts and whether it
is later equitably tolled are two different questions, and
if Ryan is right about the starting date, then it does not
matter whether he was diligent in the months following
that date. See Montenegro v. United States, 248 F.3d 585,
592 (7th Cir. 2001), partially overruled on other grounds
by Ashley v. United States, 266 F.3d 671 (7th Cir. 2001);
Wims v. United States, 225 F.3d 186, 190 (2d Cir. 2000). In
other words, once the limitations period starts running
under subsection (f)(4) or (f)(2), the movant gets the
benefit of a full year even if he delays filing until the
last minute of it.
Subsection (f)(4) lets the period run from “the date on
which the facts supporting the claim or claims pre-
8 No. 10-2564
sented could have been discovered through the exercise
of due diligence,” unless some later date applies. So the
relevant question here is how long a duly diligent
prisoner would take to discover that his lawyer had not
filed a notice of appeal. See Montenegro, 248 F.3d at 592;
Wims, 225 F.3d at 190. We note first that due diligence
does not mean “the maximum feasible diligence.” Anjulo-
Lopez v. United States, 541 F.3d 814, 818 (8th Cir. 2008);
Aron v. United States, 291 F.3d 708, 712 (11th Cir.
2002); Wims, 225 F.3d at 190 n.4. And also that courts
may consider the effect of prison life on one’s ability to
communicate with counsel and the courts when deter-
mining the level of diligence exercised by a prisoner.
Moore v. Knight, 368 F.3d 936, 940 (7th Cir. 2004); Aron,
291 F.3d at 712; Montenegro, 248 F.3d at 592; Wims, 225
F.3d at 190-91; Easterwood v. Champion, 213 F.3d 1321,
1323 (10th Cir. 2000).
No rule of thumb emerges from the cases on how long
prisoners may take to discover their lawyers’ missteps,
and we hesitate to pick a magic number. Compare, e.g.,
Granger v. Hurt, 90 F. App’x 97, 100 (6th Cir. 2004) (diligent
prisoner may wait at least 2 months before even in-
quiring into whether counsel followed instructions), and
Wims, 225 F.3d at 191 (5 months may be reasonable), with
Anjulo-Lopez, 541 F.3d at 816, 819 (3-month wait is too
long), and Montenegro, 248 F.3d at 588, 593 (10-month
wait is too long, at least if prisoner receives up-to-
date docket sheet after 6 months). The weight of this
authority suggests that a reasonable prisoner may take at
least two months—the time Ryan needs—to suspect that
No. 10-2564 9
counsel has dropped the ball, contact counsel or the
court, wait for a response, and verify the suspicion.
As a factual matter, two months may be reasonable.
After all, “a defendant who instructs counsel to initiate
an appeal reasonably relies upon counsel to file the neces-
sary notice.” Flores-Ortega, 528 U.S. at 477; see also Wims,
225 F.3d at 190. Moreover, if Ryan is correct that no one
told him of the 10-day deadline for appeals in criminal
cases, he may have presumed that counsel had a longer
time to act, thus increasing the time Ryan might
reasonably wait before following up. Further, if we
grant the government’s assumption that a prisoner can
learn what he needs by using the mail rather than a
telephone, then the calculation of the limitations period
under § 2255(f)(4) must account for several factors: the
time a prisoner’s outgoing letter sits in the prison mail
system before it leaves; the time it takes a letter to travel
to the lawyers or a court; the time the lawyers or court
staff take to check the record or docket and compose
a response; the time the response takes to travel back to
the prison; and the time the response spends in the
prison mail system before it gets to the prisoner. All
that can take weeks, even assuming that court staff—
let alone a lawyer who has already failed to file a
requested notice of appeal—respond right away. Add
to that the fact of Ryan’s transit from prison to prison, and
the problem of mail-forwarding enters the picture. In
any event, the district court need not decide precisely
how long is too long if it can safely say that, wherever
the line is, Ryan lies on one side or the other.
10 No. 10-2564
If we held that two months is always too long to learn
the facts, we would effectively be requiring the first-
time prisoner to anticipate counsel’s failure to comply
with his request (not to mention counsel’s own consti-
tutional obligation), and prepare for it by writing to
counsel within days of sentencing, thus overcoming
any postal delays. Such a holding might alternatively
tell prisoners to presume the worst, skip writing
their lawyers, and start pestering us or the district
courts for status updates immediately after sentencing.
Further, the savviest prisoners might glean from such
a holding that they should avoid the mail altogether
and conduct every bit of important business by phone.
All these possibilities illustrate hyper-vigilance, which
the law does not require, rather than due diligence,
which it does. We recognize that at some point, the rea-
sonably diligent prisoner will contact counsel, ask how
the appeal is going, and either receive an honest
response or infer from counsel’s silence that something
is amiss (and then follow up with the court). But this is
a fact-intensive inquiry and, here, that point probably
lies somewhere beyond two months given Ryan’s status
as a first-time offender, the court’s failure to notify him
of the time to appeal, and the limited ability of pris-
oners—especially those in transit—to communicate
freely by mail with those outside the prison.
Finally, we recognize that further factual development
need not involve the full panoply of discovery techniques
or even a hearing. See Bracy v. Gramley, 520 U.S. 899, 904
(1997); Lafuente, 617 F.3d at 946-47. The district court
could, for example, instruct Ryan to supply missing
No. 10-2564 11
details in a supplemental affidavit or permit the govern-
ment to submit an affidavit from counsel. See Lafuente,
617 F.3d at 947; see also Bruce, 256 F.3d at 596 (“The
district court ordered Mr. Bruce to supplement his
motion with additional facts supporting his claim.”)
(footnote omitted). Depending on what Ryan and/or his
attorneys say, this approach might obviate the need for
oral testimony or further discovery.
III. CONCLUSION
We V ACATE the district court’s judgment and R EMAND
the case for additional proceedings.
9-16-11