Criminal Procedure — collateral attacks

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United States Court of Appeals

CRIMINAL

Criminal Procedure

Collateral attacks

State court convictions used to enhance a defendant’s sentence as a career criminal were not vacated.

“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, 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 sentence. 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.”

Affirmed.

10-1572 Keller v. U.S.

Appeal from the United States District Court for the Southern District of Illinois, Gilbert, J., Sykes, J.