April 10, 2018
from the United States District Court for the Southern
District of Indiana, Indianapolis Division. No. 14-cv-2118 -
Larry J. McKinney, Judge.
Wood, Chief Judge, and Flaum and Kanne, Circuit Judges.
Jesus Arreola-Castillo was convicted of a federal drug crime.
Because he had at least two prior felony drug convictions in
New Mexico, he was subject to the recidivism provisions of 21
U.S.C. § 841. Pursuant to that statute, he received a
mandatory minimum sentence of life in prison. He subsequently
challenged the underlying felony drug convictions in New
Mexico state court, which the state court ultimately vacated.
Now, he moves to reopen his federal sentence under 28 U.S.C.
§ 2255, arguing that he is no longer subject to the
recidivism enhancement because the prior state convictions
have been vacated. The district court denied his § 2255
petition on the ground that it was time-barred. It relied on
21 U.S.C. § 851(e), which prohibits an individual from
challenging the validity of a prior conviction that is more
than five years old at the time the government seeks the
recidivism enhancement. Because Arreola-Castillo is not
challenging the validity of his prior convictions, but rather
their very existence, we reverse.
2006, a jury found Arreola-Castillo guilty of conspiracy to
distribute 1, 000 kilograms or more of marijuana in violation
of 21 U.S.C. §§ 841(a)(1) and 846. The government
filed two informations under 21 U.S.C. § 851 alleging
that Arreola-Castillo had previously been convicted of two
felony drug offenses in New Mexico in 1996. Because he had
two or more prior felony drug convictions, the district court
was required to impose a mandatory life sentence under the
recidivism provisions of 21 U.S.C. § 841(b)(1)(A). Had
it not been for the mandatory life sentence,
Arreola-Castillo's Guidelines sentencing range would have
been 188-235 months in prison. We affirmed
Arreola-Castillo's sentence on direct appeal in 2008.
See United States v. Arreola-Castillo, 539 F.3d 700
(7th Cir. 2008).
subsequently challenged both underlying state convictions in
New Mexico state courts. He moved to withdraw the guilty
pleas in those convictions on the ground that he received
ineffective assistance of counsel. Specifically,
Arreola-Castillo claimed that his attorney did not inquire
into his immigration status or sufficiently advise him of the
immigration consequences of pleading guilty. The New Mexico
state courts agreed and accordingly vacated the convictions
on November 19, 2014 and June 29, 2015.
December 2014, after his first conviction was vacated,
Arreola-Castillo moved to reopen his federal sentence under
§ 2255. The government initially moved to dismiss the
petition as an unauthorized second or successive petition
under 28 U.S.C. §§ 2244 and 2255(h). The court
denied that motion, ruling that Arreola-Castillo's
petition was based on a claim that did not become ripe until
his state convictions were vacated.
the government argued that Arreola-Castillo's claim was
"meritless" in light of 21 U.S.C. § 851(e).
That provision bars an individual from "challeng[ing]
the validity of any prior conviction alleged under this
section which occurred more than five years before the date
of the information alleging such prior conviction." 21
U.S.C. § 851(e). The government argued that §
851(e) precludes Arreola-Castillo's claim because the
informations alleging the prior convictions were filed in
2006-more than five years after his (now vacated) convictions
occurred in 1996. In response, Arreola-Castillo argued that
§ 851(e), which assumes the existence of a prior
conviction and addresses its validity, does not apply because
his convictions have been vacated.
January 2017, the district court held that § 851(e) bars
Arreola-Castillo's claims, and accordingly denied his
petition for relief under § 2255. We subsequently
granted Arreola-Castillo's request for a certificate of
appealability. Although the parties had not addressed the
issue below, we instructed them to brief the timeliness of
Arreola-Castillo's claim under § 2255(f)(4).
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." Keller v. United
States, 657 F.3d 675, 679 (7th Cir. 2011). "A
§ 2255 motion must be granted when a defendant's
'sentence was imposed in violation of the Constitution or
laws of the United States.'" Fountain v. United
States, 211 F.3d 429, 433 (7th Cir. 2000) (quoting 28
U.S.C. § 2255)).
We Decline to Address the Government's Forfeited
Timeliness Argument Under § 2255(f)(4)
is a one-year statute of limitations for filing habeas
petitions. 28 U.S.C. § 2255(f). In relevant part, the
limitation period runs from "the date on which the facts
supporting the claim or claims presented could have been
discovered through the exercise of due diligence."
Id. § 2255(f)(4). In Johnson v. United
States, the Supreme Court held that vacatur of a prior
state conviction used to enhance a federal sentence is a
"matter of fact" that could trigger this one-year
limitation period. 544 U.S. 295, 302 (2005). "[T]he
period begins when a petitioner receives notice of the order
vacating the prior conviction, provided that he has sought it
with due diligence in state court, after entry of judgment in
the federal case with the enhanced sentence."
Id. at 298.
appeal, the government argues for the first time that
Arreola-Castillo's petition is untimely under §
2255(f)(4) be- cause he did not diligently pursue vacatur of
his state convictions. Despite two years of litigation below, the
government never made this timeliness argument in the
district court. Instead, it moved to dismiss
Arreola-Castillo's petition on the ground that it was an
unauthorized successive motion under §§ 2244 and
2255(h). When that failed, the government argued that §
851(e) barred Arreola-Castillo's challenge.
not required to address the government's belated
timeliness argument. The statute of limitations in §
2255(f)(4) is not a jurisdictional requirement, but rather an
affirmative defense. Estremera v. United States, 724
F.3d 773, 775 (7th Cir. 2013). As a general rule, a defendant
must raise a statute of limitations defense in their answer.
Day v. McDonough, 547 U.S. 198, 207-08 (2006)
(citing Fed.R.Civ.P. 8(c), 12(b), 15(a)). Failure to do so
results in forfeiture. Id. Accordingly, "courts
are under no obligation to raise the time bar
sua sponte." Id. at 205.
we have discretion to examine the timeliness of a habeas
petition "when extraordinary circumstances so
warrant." Wood v. Milyard, 566 U.S. 463, 471,
473 (2012) (citing Day, 547 U.S. at 201).
"[L]eeway" is appropriate in this context because
the statute of limitations "implicat[es] values beyond
the concerns of the parties." Id. at 472
(second alteration in original) (quoting Day, 547
U.S. at 205). It "promotes judicial efficiency and
conservation of judicial resources, safeguards the accuracy
of state court judgments by requiring resolution of
constitutional questions while the record is fresh, and lends
finality to state court judgments within a reasonable
time." Id. (quoting Day, 547 U.S. at
205-06). Although Day and Wood involved
state prisoners' habeas petitions under 28 U.S.C. §
2244, we have assumed that those cases apply equally to
federal prisoners' habeas petitions under § 2255.
See, e.g., Ryan v. United States, 688 F.3d
845, 848 (7th Cir. 2012).
discretion is limited in several important respects. First
and foremost, "a federal court does not have carte
blanche to depart from the principle of party
presentation basic to our adversary system."
Wood, 566 U.S. at 472. Thus, although we may
consider a timeliness argument that was inadvertently
forfeited, "[i]t would be 'an abuse of discretion
… to override a State's deliberate waiver of a
limitations defense.'" Id. at 472-73
(quoting Day, 547 U.S. at 202). In other words,
"a court of appeals is entitled to deny collateral
relief on a procedural ground that the prosecutor has
forfeited by overlooking it, but not on a ground that the
prosecutor has waived." Ryan, 688 F.3d at 848.
even if the government accidentally forfeits a timeliness
argument, our "power to decide an appeal on a forfeited
ground should be used only in exceptional cases."
Id. We have "good reason" to "abstain
from entertaining issues that have not been raised and
preserved in the court of first instance."
Wood, 566 U.S. at 473. "That restraint is all
the more appropriate when the appellate court itself spots an
issue the parties did not air below." Id. In
addition, we must give "[d]ue regard for the trial
court's processes and time investment." Id.
After all, "[i]t typically takes a district court more
time to decide a habeas case on the merits, than it does to
resolve a petition on threshold procedural grounds."
Id. When a court of appeals belatedly interjects a
procedural impediment after resolution on the merits,
"the district court's labor is discounted."
Id. at 474. Perhaps even more troubling, "the
appellate court acts not as a court of review but as one of
first view." Id.
the government argues that its failure to pursue a timeliness
argument under § 2255(f)(4) was an unintentional
"misstep." Accordingly, it contends that it merely
forfeited the argument. Arreola-Castillo, on the other hand,
argues for waiver. In the event we find forfeiture,