McNair v. United States, No. 18-2541 (7th Cir. 2020)
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In 2003, McNair was sentenced for drug crimes. The court placed his Criminal History at Category II based on an Indiana conviction for driving without a license, calculated his Guidelines range at 324-405 months, and imposed a 360-month sentence, declining to consider McNair’s argument that his conviction was invalid. The Seventh Circuit affirmed. In 2005 McNair sought relief under 28 U.S.C. 2255, again disputing the state conviction. The court denied relief, reasoning that he needed to contest that conviction in state court. McNair's subsequent motions were dismissed as unauthorized successive collateral attacks. In 2017 McNair’s Indiana conviction was vacated.
The Seventh Circuit affirmed the dismissal of McNair’s subsequent federal petition. A section 2255 petition based on the vacatur of a state conviction may be maintained as an “initial” section 2255 motion on the theory that the claim was unripe until the state court acted. Such a petition must be brought within a year of “the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.” McNair's judgment date was 2003. He first asked the state judiciary for relief in 2007. McNair did not appeal the denial of that motion. For nine years he did nothing in state court. When McNair returned to federal court in 2017, 14 years had passed since the event that requires diligent action. Ignorance of the law does not justify tolling the limitations period.
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