In the
United States Court of Appeals
For the Seventh Circuit
No. 10-1572
C HARLES D ERRICK K ELLER,
Petitioner-Appellant,
v.
U NITED S TATES OF A MERICA,
Respondent-Appellee.
Appeal from the United States District Court
for the Southern District of Illinois.
No. 09-cv-365-JPG—J. Phil Gilbert, Judge.
A RGUED F EBRUARY 16, 2011—D ECIDED S EPTEMBER 23,2011
Before P OSNER, F LAUM, and SYKES, Circuit Judges.
S YKES, Circuit Judge. This case raises questions about
timeliness and waiver in connection with a federal pris-
oner’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
2 No. 10-1572
aspect of his conviction or sentence unless the sentence
exceeded either the sentencing-guidelines range as calcu-
lated by the district court “or any applicable statutory
minimum, whichever is greater.” The district court sen-
tenced 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 pur-
porting 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 (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
No. 10-1572 3
convictions were vacated. In light of the nunc pro tunc
order, Keller is left without any good claim for col-
lateral relief.
I. Background
In the course of investigating a robbery in Decem-
ber 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 grand-
mother’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 posses-
sion 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 ac-
ceptance of responsibility, ultimately placing him at
4 No. 10-1572
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 writ-
ten 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 ap-
plicable statutory minimum, whichever is greater,” in
which case he “reserve[d] the right to appeal the reason-
ableness 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
1
The plea agreement also contained two additional exceptions
to the waiver of postconviction remedies:
Defendant’s waiver of his right to appeal or bring collateral
challenges shall not apply to: 1) any subsequent change
in the interpretation of the law [by this court or the
Supreme Court] . . . which is declared retroactive . . . and
which renders the defendant actually innocent . . ., and
2) appeals based upon Sentencing Guideline amend-
ments which are made retroactive . . . .
These narrow exceptions are not at issue here.
No. 10-1572 5
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 corre-
spond 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, he was entitled to pursue
collateral relief because the removal of those convic-
tions meant that he was not in fact a career criminal.
The district court denied the motion on two in-
dependent 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 Decem-
ber 2, 2010, explained that the dismissal of three of the
6 No. 10-1572
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,
No. 10-1572 7
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 sen-
tence. 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
8 No. 10-1572
(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 decision vacating a predicate
conviction used to enhance a federal defendant’s sen-
tence is a “fact” that restarts the one-year clock under
§ 2255(f)(4) provided the defendant exercised due
diligence in seeking the vacatur and filing the § 2255
motion. 544 U.S. at 302. Keller contends that the
Oklahoma court’s April 24, 2009 dismissal order had the
effect of vacating two of the three convictions used to
classify him as an armed career criminal and that he
exercised due diligence in seeking the vacatur.
The April 24, 2009 order lists eight case numbers in
its caption—including the two relevant here, cases CF-
2000-139 and CF-2001-89—and summarily states that “the
above styled case [sic] against said defendant is hereby
dismissed.” As the nunc pro tunc order explains, however,
the April 24, 2009 order contains a “scrivener’s error.” 2
2
As we have noted, Keller moved to strike the nunc pro tunc
order from the appellate record because it did not exist when
(continued...)
No. 10-1572 9
Instead of dismissing the underlying cases bearing
those numbers, the state court clarified that its April 24,
2009 order was intended to dismiss the “Application
to Revoke Suspended Sentence” in those cases. By cor-
recting the April 24, 2009 order in this way, the Oklahoma
court signaled that it had not meant to undo Keller’s
underlying convictions.
Thanks to the nunc pro tunc order, we need not decide
what effect the April 24, 2009 order might have had
2
(...continued)
the district court ruled on his § 2255 motion. That motion is
denied. Although it is true that “we generally decline to
supplement the record on appeal with materials that were not
before the district court,” Ruvalcaba v. Chandler, 416 F.3d 555,
562 n.2 (7th Cir. 2005), the nunc pro tunc order does not fall
within this general rule. We “ha[ve] the power, in fact the
obligation, to take judicial notice of the relevant decisions of
courts . . . , whether made before or after the decision under
review.” Opoka v. I.N.S., 94 F.3d 392, 394 (7th Cir. 1996). Had
the government not supplemented the record, we would
have taken judicial notice of the nunc pro tunc order, which has
“ ‘a direct relation to matters at issue.’” See id. (quoting Philips
Med. Sys. Int’l v. Bruetman, 982 F.2d 211, 215 n.2 (7th Cir. 1992)).
In the alternative, Keller asked that we stay these proceedings
while he appeals the nunc pro tunc order. We denied this motion
prior to oral argument, but Keller renewed the request in his
reply brief. Keller has not given us any information about the
status of his appeal. Our own research indicates that the
Oklahoma Court of Criminal Appeals dismissed the appeal on
March 10, 2011. Accordingly, there appears to be no basis for a
stay—no basis, that is, that Keller has supplied or our own
independent research has unearthed.
10 No. 10-1572
were it considered on its own. We note for completeness,
however, that the order contained several clues that it
was not meant to have the effect of vacating Keller’s
underlying convictions. First, the order stated that the
cases “pending” against Keller were dismissed. The
only matters open and pending in cases CF-2000-139
and CF-2001-89 were postconviction matters, including
Keller’s habeas petitions and proceedings to revoke
the suspended sentences Keller apparently received for
those crimes. The order’s use of the word “pending”
suggests that the court’s intent was to dismiss the
pending postconviction proceedings, not to vacate the
underlying convictions that were finalized years earlier.
Although local legal usage varies somewhat by juris-
diction, we would expect any order vacating Keller’s
underlying convictions to contain more explicit
language reopening the cases, vacating the judgments of
conviction, and then dismissing the cases.
Second, the April 24, 2009 order is a single-page docu-
ment containing both a “motion” and an “order” and
appears to have been prepared by a local assistant district
attorney. The “motion” part of the document asks for
dismissal of the matters “now pending” against Keller “in
the best interest of justice” because “defendant is now
serving a sentence in the Federal Penitentiary.” This
suggests that the state court was only being asked to
dismiss any pending state postconviction matters against
Keller because he was serving a federal sentence.
Johnson held that an order vacating a state-court con-
viction that served as a predicate for a career-criminal
No. 10-1572 11
sentence is a “fact” that restarts AEDPA’s one-year limita-
tions period under § 2255(f)(4). 544 U.S. at 307. But the
Court also explained that this “claim of . . . fact is subject
to proof or disproof like any other factual issue.” Id.
Keller’s § 2255 motion rested on his factual claim that
the Oklahoma court’s April 24, 2009 order vacated two
of his predicate convictions, but this “fact” was clari-
fied—indeed refuted—by the nunc pro tunc order.
Because Keller’s two predicate convictions were not in
fact vacated, his one-year clock was not restarted
under subsection (f)(4). Keller’s § 2255 motion—filed
more than a year after his conviction became final—was
therefore untimely.3
3
Most of Keller’s appellate briefing is devoted to the question
of his due diligence in seeking to vacate the Oklahoma convic-
tions. Johnson held that a federal prisoner must exercise due
diligence in bringing the § 2255 motion, 544 U.S. 295, 307 (2005),
but also in “seeking the state vacatur order itself,” id. at 309.
The Court was not more specific about what the required
“due diligence” might entail, but it did say that the prisoner
must take “prompt action” after the date of the federal judg-
ment. Id. at 308-09. The federal judgment in this case was
entered on January 30, 2007, and Keller did not file his habeas
corpus petition in state court until January 16, 2009, more
than 23 months later. In Johnson the federal prisoner waited
more than three years after entry of the federal judgment
before bringing his state habeas petition; the Supreme Court
said this was too long. Id. at 311. The Court also noted that
“even if we moved the burden of diligence ahead to the date
of finality of the federal conviction or to AEDPA’s effective
(continued...)
12 No. 10-1572
B. Plea-Agreement Waiver of Collateral Review
The district court cited another reason to reject Keller’s
§ 2255 motion: His plea agreement contained a broad
waiver of his right to collaterally attack his sentence. A
defendant may validly waive both his right to a direct
appeal and his right to collateral review under § 2255 as a
part of his plea agreement. Jones v. United States, 167
F.3d 1142, 1144-45 (7th Cir. 1999). We have generally
upheld and enforced these waivers, with limited excep-
tions for cases in which the plea agreement was involun-
tary, the district court “relied on a constitutionally im-
permissible factor (such as race),” the “sentence ex-
ceeded the statutory maximum,” or the defendant claims
“ineffective assistance of counsel in connection with the
negotiation of [the plea] agreement.” Id. For the waiver
to apply, however, the disputed appeal or collateral
3
(...continued)
date two days later, Johnson would still have delayed unrea-
sonably, having waited over 21 months.” Id. The Court
thought it important that “Johnson has offered no explanation
for this delay, beyond observing that he was acting pro se and
lacked the sophistication to understand the procedures.” Id.
The Court rejected this explanation, observing that it had
“never accepted pro se representation alone or procedural
ignorance as an excuse for prolonged inattention when a
statute’s clear policy calls for promptness.” Id. That the
Supreme Court refused to accept an unexplained 21-month
delay would appear to foreclose Keller’s argument that he
exercised due diligence; his 23-month delay was even longer
and similarly unexplained.
No. 10-1572 13
attack must fall within its scope. United States v. Chapa,
602 F.3d 865, 868 (7th Cir. 2010).
To bar collateral review, the plea agreement must
clearly state that the defendant waives his right to col-
laterally attack his conviction or sentence in addition to
waiving his right to a direct appeal. United States v.
Monroe, 580 F.3d 552, 556 (7th Cir. 2009). Keller’s does.
The relevant paragraph in the plea agreement broadly
states that Keller “knowingly and voluntarily waives
his right to contest any aspect of his conviction
and sentence that could be contested under Title 18 or
Title 28, or under any other provision of federal law.”
The next paragraph confirms that this language is meant
to cover direct appeal and collateral review; referring to
the previous paragraph, it states that the “Defendant’s
waiver of his right to appeal or bring collateral challenges
shall not apply,” then sets out two narrow exceptions
not relevant here. See supra note 1.
Keller contends that his § 2255 challenge nonetheless
falls outside the scope of the waiver because the
waiver provision explicitly preserves his right to appeal
“if the sentence imposed is in excess of the Sentencing
Guidelines as determined by the Court” or “any ap-
plicable statutory minimum, whichever is greater.” This
language is not uncommon in plea agreements; we
have not yet addressed whether a valid Johnson claim
falls within this kind of exception to otherwise broad
appellate and collateral-review waiver language in a
14 No. 10-1572
plea agreement.4 We need not decide the question here.
Without his argument that the Oklahoma court vacated
his prior convictions, Keller has no claim that his sen-
tence exceeded the applicable guidelines range or the
statutory minimum.
The case would be somewhat more difficult if the
Oklahoma court had in fact vacated Keller’s prior con-
victions. If it had, Keller’s § 2255 motion arguably
might fall within the exception to his waiver of appeal
and collateral review.5 The government responds that
4
Keller does not argue for a categorical rule that a defendant
cannot waive his right to seek collateral review under Johnson
in the event his career-criminal qualifying convictions are
vacated. We have generally declined to expand the categorical
exceptions to appeal-and-collateral-review waivers in plea
agreements; this has been true even in cases in which the
district court clearly miscalculated the defendant’s guide-
lines range. See United States v. Feichtinger, 105 F.3d 1188, 1190
(7th Cir. 1997) (A“waiver of a right to appeal is subject to
exceptions,” but “an improper application of the guidelines”
is not one of them.).
5
We note, however, that Keller’s reliance on United States
v. Wallace, 32 F.3d 1171 (7th Cir. 1994), and United States v.
Farmer, 543 F.3d 363 (7th Cir. 2008), is entirely misplaced.
Farmer and Wallace involved plain-error review of forfeited
claims pertaining to improper application of the guidelines.
See Wallace, 32 F.3d at 1174-75; Farmer, 543 F.3d at 375. Neither
case had anything to do with a defendant’s waiver of his
right to collateral review in his plea agreement. See Feichtinger,
105 F.3d at 1190 (When a defendant signs a voluntary appeal
(continued...)
No. 10-1572 15
the exception does not apply because it only preserved
Keller’s right to appellate review for reasonableness if
his sentence exceeded either the statutory minimum or
the guidelines range “as determined by the Court,”
whichever was greater. Because Keller received a within-
guidelines sentence at exactly the 180-month statutory
minimum, the narrow reserved right to appeal on rea-
sonableness grounds was not triggered; the exception
covers nothing more and therefore doesn’t open a
window for a Johnson-type claim. The government’s
reading of the waiver language in the plea agreement
has considerable force, but we need not resolve the
matter here.
Because Keller’s Oklahoma convictions were not in
fact vacated, the district court properly denied his § 2255
motion. The district court’s order is A FFIRMED.
5
(...continued)
waiver in his plea agreement, the district court’s improper
application of the guidelines does not allow us to bypass
the waiver and review a defendant’s claim.).
9-23-11