In the
United States Court of Appeals
For the Seventh Circuit
No. 10-2432
R EGINALD D. P URVIS,
Petitioner-Appellant,
v.
U NITED STATES OF A MERICA,
Respondent-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Western Division.
No. 08 C 50216—Philip G. Reinhard, Judge.
A RGUED S EPTEMBER 8, 2011—D ECIDED N OVEMBER 28, 2011
Before E ASTERBROOK, Chief Judge, and B AUER and
S YKES, Circuit Judges.
B AUER, Circuit Judge. On June 5, 2006, Reginald D. Purvis
was sentenced as a career offender for conspiracy to
distribute crack cocaine. Purvis appealed the conviction
and sentence. This Court dismissed the appeal on Decem-
ber 7, 2006. Purvis’s petition for a writ of certiorari was
denied by the Supreme Court on October 1, 2007.
On September 29, 2008, Purvis filed a motion under
28 U.S.C. § 2255 to vacate, set aside, or correct his sen-
2 No. 10-2432
tence and then, on February 17, 2009, Purvis requested
a stay of the § 2255 motion. On March 19, 2009, the
district court denied the motion to stay, and on March 23,
2009, denied Purvis’s § 2255 motion.
Purvis filed a notice of appeal on April 6, 2009.
The district court, construing the notice of appeal as a
request for a certificate of appealability, denied the re-
quest. Purvis filed a notice of appeal arguing that his
notice of appeal was misconstrued as a certificate of
appealability. On November 19, 2009, this Court vacated
the district court’s order and remanded the case for
further proceedings and granted Purvis’s motion to
withdraw the request for a certificate of appealability.
On January 12, 2010, on remand, the district court again
denied Purvis’s § 2255 motion and his motion to stay;
Purvis filed a motion to reconsider on February 1, 2010,
and on February 5, 2010, the district court withdrew the
January 12, 2010 order.
The district court denied Purvis’s motion to reconsider
on June 2, 2010 and again denied Purvis’s § 2255 motion
and motion to stay. Purvis filed a notice of appeal on
June 14, 2010. On October 19, 2010, this Court granted
Purvis’s request for a certificate of appealability.
I. BACKGROUND
On June 5, 2006, Purvis was sentenced as a career of-
fender under U.S. Sentencing Guidelines § 4B1.1 for
conspiracy to distribute at least 50 grams of crack cocaine.
On August 20, 2007, Purvis filed a motion in state court
No. 10-2432 3
to vacate one of the two prior convictions underlying
his career-offender sentence. Before that motion was
ruled on, the Supreme Court denied Purvis’s certiorari
petition on October 1, 2007.
Purvis next filed a timely motion pro se under 28 U.S.C.
§ 2255 challenging his federal sentence on the basis of a
variety of ineffective assistance claims. In that motion,
Purvis also referenced his then ongoing suit to vacate
a state conviction, stating:
Notwithstanding the fact that movant is currently
in litigation with THE PEOPLE OF THE STATE OF
ILLINOIS in case no. 93 CF 57, requesting an order
to vacate, that of which was used by this Honorable
Court to upward depart to “Career-offender status”
at sentencing in (PSR at 9).
The Government’s response to Purvis’s § 2255 motion
did not reference Purvis’s statement that he was chal-
lenging his underlying state conviction. In his reply,
Purvis again noted that he was challenging his under-
lying state conviction:
* Let the Court take Judicial Notice that the movant is
currently in litigation with THE PEOPLE OF THE
STATE OF ILLINOIS in case no. 93 CF 57, requesting
an order to vacate, that of which was a predicate
offense used by this Honorable Court to upward
depart to the Carrer (sic) offender status at sentencing
(See-PSR) with a court appearance scheduled for
1/23/09. See Johnson v. United States, 125 S.Ct. 1571
(2005) 73 U.S.L.W. 4270.
(emphasis omitted).
4 No. 10-2432
On February 17, 2009, Purvis requested a stay of his
§ 2255 motion hearing until the state court decided his
motion to vacate. In this filing, Purvis explained that his
counsel and the state prosecutor agreed that his state
conviction should be vacated and that a vacated state
conviction would affect his enhanced sentence in fed-
eral court and that, if a stay was not granted, he would
have to seek leave from the court of appeals to file a
successive § 2255 motion after his state court conviction
was vacated. The district court denied Purvis’s stay
request, and ultimately the § 2255 motion.
On June 30, 2009, the Illinois circuit court entered an
order vacating Purvis’s state conviction and granted
his motion to withdraw his guilty plea.1 As result of his
vacated sentence, on September 24, 2009, Purvis sought
leave from this Court to file a second or successive § 2255
motion to challenge his career-offender status. We
denied Purvis’s request; the issue of Purvis’s vacated
conviction and career-offender claim was already
pending before this Court as part of Purvis’s appeal of
the district court’s decision to deny his stay request and
§ 2255 motion.
Ruling on the district court’s denial of Purvis’s stay
request and his § 2255 motion, we vacated and remanded
for “additional findings of fact relating to the timeliness
of Purvis’s career-offender claim.” Specifically, this Court
directed the district court to “address the effect, if any,
1
Purvis was reindicted for the alleged acts underlying his
vacated state sentence on January 7, 2011.
No. 10-2432 5
of the fact that Purvis notified the court in the brief of
his § 2255 motion of his efforts to have his state convic-
tion vacated.” We further directed the district court to
“address whether under Johnson v. United States, 544 U.S.
295 (2005), a change in Purvis’s state conviction is a
new fact that would start a renewed one-year limita-
tions period and thus make this claim timely.” In
addition, we agreed with the district court that Purvis
did not establish ineffective assistance of counsel.
On remand, the district court found that Purvis’s
career-offender claim was not timely and concluded that
“the only remaining avenue of relief for Purvis is to
either appeal this order or seek authorization from the
Court of Appeals to file a successive motion under § 2255.”
We now explain why we reverse and remand.
II. DISCUSSION
A. Standard of Review
When a district court rules on a § 2255 motion, we
review the findings of fact for clear error and the rulings
of law de novo. Hall v. United States, 371 F.3d 969, 972-73
(7th Cir. 2004). We review decisions concerning stays
for abuse of discretion. Tyrer v. South Beloit, 516 F.3d
659, 666 (7th Cir. 2008).
The Antiterrorism and Effective Death Penalty Act of
1996 (AEDPA) imposes, among other things, a one-year
period of limitations on motions by prisoners seeking to
modify their federal sentences under 28 U.S.C. § 2255:
“The limitation period shall run from the latest of— . . .
6 No. 10-2432
(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)(4).
In Johnson v. United States, the Supreme Court held
that the state court’s vacatur of a predicate conviction is
a new “fact” that triggers a fresh one-year statute of
limitations under § 2255(f)(4), so long as the petitioner
exercised due diligence in seeking that order. 544 U.S.
295, 302 (2005). Thus, Johnson established that the basis
for a claim challenging a sentence predicated on faulty
state convictions arises when the order vacating those
predicate convictions issues. Id. at 306-07. The vacatur
order gives a defendant both the basis to challenge
the enhanced federal sentence and a new one-year
period in which to pursue that challenge.
B. The Timeliness of Purvis’s Career-Offender Claim
The Government argues that Purvis sat idle for twelve
years, taking no steps from March 20, 1995—the date of
his state sentence—to August 20, 2007, when Purvis
filed his pro se motion to vacate and withdraw his plea.
The relevant time period under a Johnson diligence
inquiry, however, does not begin with date of the state
sentence; rather, it begins with the date of the federal
judgment. Id. at 309 (“After the entry of [federal] judg-
ment, the subject of the § 2255 claim has come into
being [and] the significance of inaction is clear . . . .”).
Purvis attacked his state-court conviction 15 months after
he was sentenced as a career offender. During those
intervening months, he appealed his federal conviction,
No. 10-2432 7
sought rehearing when that appeal was unsuccessful,
then sought certiorari in the Supreme Court. He
prioritized his claims and moved quickly in seeking to
vacate his predicate state-court conviction after losing
his federal merits appeal. Under these circumstances,
we conclude Purvis acted diligently.
The Government argues that Purvis’s career-offender
claim is not timely because he filed his § 2255 motion
before vacating his state conviction. In other words,
Purvis had no career-offender claim prior to vacatur of
his state conviction. The Government’s position finds
support in Johnson, Custis v. United States, and Daniels v.
United States, which together establish that only after an
underlying conviction is vacated may a defendant seek
relief in federal courts. Id. at 303-04; 511 U.S. 485, 497
(1994); 532 U.S. 374, 382 (2001). Thus, according to the
Government, because Purvis first filed a § 2255 motion
raising ineffective assistance claims before his career-
offender claim was ripe, he can only raise the now ripe
career-offender claim in a second or successive § 2255
motion. But, as the Government realizes, Purvis cannot
meet the gatekeeping provisions of 28 U.S.C. § 2244(b)(2),
which only allow a petitioner to file a second or succes-
sive § 2255 habeas petition in limited circumstances.
See §§ 2244(b)(2)(A)-(B).
As a result of the combined effect of AEDPA’s one-year
statute of limitations and the gatekeeping provisions
of § 2244(b)(2), Purvis, and similarly-situated petitioners,
are faced with a catch-22. If he waits to file his § 2255
motion until his career-offender claim is ripe—i.e., after
8 No. 10-2432
vacatur of his state conviction—he risks that any
other claims that he could have brought, such as an
ineffective assistance, will be time-barred because
AEDPA’s one-year statute of limitations will have run.
Alternatively, a petitioner who decides to first file an
ineffective assistance claim within AEDPA’s one-year
statute of limitations period forgoes any unripe career-
offender claims because § 2244(b)(2) bars him from later
bringing a ripe claim in a second or successive § 2255
motion.
The Eleventh Circuit recently addressed this difficulty
in Stewart v. United States, 646 F.3d 856 (11th Cir. 2011).
It concluded that the petitioner’s Johnson claim was
not “second or successive” within the meaning of the
gatekeeping provisions of § 2244(b)(2). See id. at 863-64.
In Stewart, the petitioner was sentenced as a career of-
fender. He then filed a § 2255 motion requesting addi-
tional time to file a § 2255 motion and expressed his
intention to raise an ineffective assistance claim. Id. The
state court then vacated his predicate state conviction,
and he promptly filed a second § 2255 motion, asserting
a Johnson claim. Id. at 858. The Eleventh Circuit, applying
the Supreme Court’s reasoning in Panetti v. Quarterman,
551 U.S. 930 (2007), declined to literally interpret
AEDPA’s “second or successive” language and concluded
that the petitioner properly raised his Johnson claim in his
second § 2255 motion when it first became ripe. Id. at 864.
In Panetti, the petitioner filed a federal habeas petition
that challenged his conviction but did not assert a Ford
claim. 551 U.S. at 937. The district court denied his
No. 10-2432 9
petition on the merits. Id. The petitioner then filed a
second habeas petition alleging, for the first time, that
he was incompetent to be executed. Id. at 938. The
Supreme Court granted certiorari to decide whether
that petition constituted an improper “second or succes-
sive” habeas application under § 2244(b). Id.
The Court held that the petition was not “second or
successive” within the meaning of § 2244(b) because
“Congress did not intend the provisions of AEDPA
addressing ‘second or successive’ petitions to govern a
filing in the unusual posture presented here: a § 2254
application raising a Ford-based incompetency claim
filed as soon as that claim is ripe.” Id. at 945. The Court
further reasoned that “[a]n empty formality requiring
prisoners to file unripe Ford claims neither respects the
limited legal resources available to the States nor en-
courages the exhaustion of state remedies.” Id. at 946.
Accordingly, the Court declined to construe AEDPA,
which Congress “implemented to further the principles
of comity, finality, and federalism, in a manner that
would require unripe (and, often, factually unsupported)
claims to be raised as a mere formality, to the benefit of
no party.” Id. at 947.
Besides Panetti, the Supreme Court’s earlier decision in
Rhines v. Weber also addressed the present difficulty
faced by Purvis. 544 U.S. 269 (2005). In Rhines, the Court
examined the combined effect of AEDPA’s one-year
statute of limitations period and Lundy’s dismissal re-
quirement for habeas petitions mixed with unexhausted
and exhausted claims. See Rose v. Lundy, 455 U.S. 509,
518-19 (1982). The Court observed:
10 No. 10-2432
. . . [P]etitioners who come to federal court with
“mixed” petitions run the risk of forever losing
their opportunity for any federal review of their
unexhausted claims. If a petitioner files a timely
but mixed petition in federal district court, and
the district court dismisses it under Lundy after the
limitations period has expired, this will likely mean
the termination of any federal review.
Rhines, 544 U.S. at 275.
Specifically, the Court considered “whether a federal
district court has discretion to stay [a] mixed petition to
allow the petitioner to present his unexhausted claims
to the state court in the first instance, and then to return
to federal court for review of his perfected petition.”
544 U.S. at 271-72. It concluded that the district courts
indeed possess such discretion. In appropriate but
limited circumstances, therefore, the Court concluded
that the “stay and abeyance” procedure used by the
district court in the case before it was proper. It
cautioned, however, that overuse of that procedure
might undermine the twin purposes of AEDPA: to en-
courage finality by requiring prompt resolution of
federal habeas corpus petitions and to streamline
the process by requiring total exhaustion of state court
remedies prior to the federal action. Id. at 277. The
district court must decide whether the petitioner had
good cause for his failure to exhaust all claims and
whether the unexhausted claims have some possible
merit. Id. at 277-78.
While both the Panetti and Rhines approaches have
support in Supreme Court precedent, we conclude that
No. 10-2432 11
the “stay and abeyance”procedure in Rhines should have
been implemented to protect Purvis’s unripe career-
offender claim.
The district court denied Purvis’s stay request, con-
cluding that his proposed career-offender claim would
not relate back to his claims in his original § 2255 mo-
tion. We determined that that decision was “errone-
ous” in our order dismissing Purvis’s application to
file a successive attack under § 2255. Furthermore, in
vacating the district court’s decision to deny Purvis’s
§ 2255 motion, we directed the district court to “address
whether under Johnson . . . a change in Purvis’s state
conviction is a new fact that would start a renewed one-
year limitations period and thus make this claim timely.”
The district court did not engage in that analysis;
rather, it determined that Purvis’s Johnson claim must
be brought in a second or successive § 2255 motion.
What the district court failed to take into account
is that if Purvis had acted with diligence under Johnson, his
one-year statute of limitations would start anew, making
his career-offender claim timely. And if his career-
offender claim were timely, Purvis would have been able
to amend his habeas petition to include that claim. See
28 U.S.C. § 2242 (habeas petitions “may be amended . . . as
provided in the rules of procedure applicable to civil
actions.”); Fed. R. Civ. P. 15(a) (leave to amend a
pleading “shall be freely given when justice so requires.”).
We see no reason why Purvis’s unripe career-offender
claim should be treated as fundamentally different than
an unexhausted habeas claim when considering whether
12 No. 10-2432
a stay is proper. We are reluctant to find that a ripe
Johnson claim brought for the first time in a second § 2255
motion is not “second or successive.” Although that
approach is logical and consistent with Supreme Court
precedent, there is greater textual support in the statute
for the procedure outlined in Rhines. That district courts
may receive meritless and unripe Johnson claims does
not outweigh a petitioner’s interest in obtaining federal
review. And in any event, that effect could be alleviated,
and the purposes of AEDPA protected, by applying
the limitations in Rhines.
We caution that the “stay and abeyance” of unripe
Johnson claims should be limited to narrow circumstances
where there is good cause for the petitioner’s stay
request, the claim is potentially meritorious, and there is
no indication that the petitioner is engaging in dilatory
tactics. See Rhines, 544 U.S. at 278.
In his stay request, Purvis indicated that a state court
decision to vacate his predicate conviction was eminent
and that his attorney and the prosecutor had agreed to
vacate his conviction and plead down his initial charge.
Moreover, there is no evidence that Purvis was en-
gaging in dilatory tactics. The district court, therefore,
erred to the extent it concluded that a stay was improper
because Purvis’s career-offender claim was unripe.
III. CONCLUSION
For the reasons stated herein, we R EVERSE and R EMAND
for further proceedings consistent with this opinion.
No. 10-2432 13
E ASTERBROOK, Chief Judge, concurring. The court’s
opinion, which I join without reservation, leaves open
a potentially important question: should the district
judge resentence Purvis while the state prosecution
remains pending?
Purvis was sentenced as a career offender under
U.S.S.G. §4B1.1 because, on the date his federal sentence
for distributing cocaine was pronounced, he had two
earlier felony convictions for drug offenses. After Purvis
began serving his federal sentence, he persuaded a state
court to set aside one of those convictions. That decision
entitled Purvis to an additional year within which to
seek review of his federal sentence. See Johnson v. United
States, 544 U.S. 295 (2005). Today the court holds that
the district judge erred in concluding that Purvis’s
request for that review was either untimely or a “second
or successive” federal petition. We remand “for further
proceedings consistent with this opinion.” But what
does this mean concretely?
Johnson tells us that Purvis is no longer a career of-
fender. He now has only one prior conviction for a
drug offense. But the vacated conviction may be rein-
stated. The state judge has allowed him to withdraw
his guilty plea, because he may have misunderstood
the maximum punishment. Purvis has entered a new
plea of not guilty and is awaiting trial. If he should be
convicted, this would not restore his career-offender
status for federal purposes. U.S.S.G. §4B1.2(c) tells us
that a person is classified as a career offender only if
he commits his federal offense after “sustaining at
14 No. 10-2432
least two felony convictions” for drug crimes or violent
offenses. Given the retroactive effect of the state
court’s vacatur, Purvis had only one such conviction on
his record when he committed his federal crime. But a
conclusion that Purvis is not a “career offender” is not
the end of the line for federal purposes.
Since United States v. Booker, 543 U.S. 220 (2005), the
Sentencing Guidelines have been advisory. We con-
cluded in United States v. Corner, 598 F.3d 411 (7th Cir.
2010) (en banc), that Booker’s approach applies to the
career-offender Guideline as well as to other Guidelines.
Defendants often benefit from this, because district
judges have greater discretion to give below-Guideline
sentences. But Booker and Corner work both ways: they
give judges discretion to sentence above a range as well
as below it. It may be prudent for a federal judge to use
this discretion when for technical reasons a state crime
committed long before the federal offense is treated as
if committed later.
The guilty plea that Purvis was allowed to withdraw
had been entered in 1993. When he committed his
federal drug offense, two state drug-related convictions
were on his record. If his state conviction should be
reinstated after a trial (or a new guilty plea) he would be
no less dangerous, no less likely to commit new crimes,
and thus no less deserving of a recidivist sentence, than
if the original state conviction had remained in place.
Booker and Corner afford the sentencing judge discretion
to give these facts whatever weight the judge believes
they deserve. See United States v. Woods, 576 F.3d 400, 403
No. 10-2432 15
n.2 (7th Cir. 2009) (district court may impose a sentence
in the career-offender range even when one or more of
the defendant’s prior convictions does not meet all re-
quirements of §4B1.1).
This observation supposes that, when resentencing a
federal offender, a district judge is entitled to consider
things that happen between the original sentence and
the resentencing. United States v. Pepper, 131 S. Ct. 1229
(2011), holds that, when resentencing a federal criminal,
the judge may consider mitigating events after the
original sentence. This principle, like that of Booker and
Corner, also works both ways. Because the district judge
thus could consider a new state conviction for Purvis’s
1993 activities, the best approach on remand may be to
wait and see what happens in the state prosecution.
I do not suggest that the judge is required to wait, only
that it is within the judge’s discretion to do so. If the
judge thinks that any new conviction for acts 18 years
ago would carry little weight, then Purvis should be
resentenced without delay. But if the judge believes that
the principles behind recidivist sentencing make final
disposition of the state charge salient, then the court
may elect to defer the federal resentencing until the
state prosecution has been concluded.
11-28-11