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Seventh Circuit: Habeas Petition Challenging § 841 Recidivism Sentence Enhanced with Vacated State Convictions is Not Time-Barred by § 851(e) Statute of Limitations

by Christopher Zoukis

The U.S. Court of Appeals for the Seventh Circuit ruled that a federal prisoner convicted of violating 21 U.S.C. § 841, whose sentence was enhanced under 21 U.S.C. § 841(b)(1)(A) due to prior state felony drug convictions, may bring a 28 U.S.C. § 2255 habeas petition alleging that the prior convictions were vacated in state court, regardless of the five-year statute of limitations found in § 851(e) because he isn’t challenging the validity of the prior convictions, but rather their very existence. The May 3, 2018, opinion reversed the district court’s finding otherwise.

In 2006, Jesus Arreola-Castillo was found guilty of conspiracy to distribute 1,000 kilograms or more of marijuana in violation of §§ 841(a)(1) and 846. The government filed an information alleging that he had two prior state convictions for drug felonies, and the trial court sentenced him to a mandatory term of life in prison pursuant to the recidivism provisions of 21 U.S.C. § 841(b)(1)(A).

After his conviction in federal court, Arreola-Castillo challenged his prior convictions in state court. Because he received ineffective assistance of counsel, the New Mexico state court vacated both of his priors. Arreola-Castillo then filed a petition in federal court under § 2255, in which he sought to reopen his sentence, challenging the § 841(b)(1)(A) recidivism enhancement.

In response to his challenge, the government invoked § 851(e), which states, “No person who stands convicted under this part may challenge 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.” The government claimed that because the information alleging the prior convictions was filed in 2006, more than five years after Arreola-Castillo’s 1996 state court convictions, he was time-barred from challenging them.

Arreola-Castillo responded by arguing that § 851(e) only addresses challenges to the validity of a prior conviction, not claims that the prior conviction no longer exists. The district court agreed with the government and ruled that § 851(e) bars Arreola-Castillo’s claims. The Seventh Circuit reversed.

The Court first addressed what was surely a significant mistake made by the government. Arreola-Castillo likely exceeded the one-year statute of limitations for filing his § 2255 claim, which according to U.S. Supreme Court interpretation of § 2255(f), began running when Arreola-Castillo “receive[d] 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.” Johnson v. United States, 544 U.S. 295, 298 (2005). Nevertheless, the Court pointed out that a statute of limitations defense must be raised by the defendant (the government in this case) in its answer, and failure to do so results in forfeiture. The government never raised the statute of limitations defense in the district court and thus forfeited it, according to the Seventh Circuit.

“The district court presided over this case for two years and ultimately resolved it on the merits,” wrote the Court. “Were we to dismiss the case on a procedural ground at this juncture, we would effectively discount the district court’s efforts. Therefore, we exercise our discretion to proceed to the merits of Arreola-Castillo’s habeas petition.”

And on the merits, Arreola-Castillo prevailed. The Court found that the statutory language of § 851(e) and Seventh Circuit precedent made it clear that the five-year limitation only applies to challenges to the validity of prior convictions, not to challenges of their very existence.

The Court’s analysis of § 851(e)’s language matched up with what would seem to be a logical truism: One cannot challenge the validity of something that does not exist. The Court found that § 851 “repeatedly refers to the validity of a conviction and the fact of a conviction as separate and mutually exclusive concepts” and in no way limits an individual’s ability to deny that a prior conviction even exists. In short, the Court read the statute as only limiting the timeframe within which one may challenge a prior conviction, which is not the same thing as “simply asking the federal court to recognize the state court’s determination” that a conviction was invalid.

Circuit precedent supported the Court’s interpretation of § 851(e). In United States v. Arrango-Montoya, 61 F.3d 1331 (7th Cir. 1995), the Seventh Circuit ruled that “an individual may deny the existence of a prior conviction even if the five-year statute of limitations in § 851(e) prevents him from challenging the validity of that conviction.” More recently, in United States v. Elder, 840 F.3d 455 (7th Cir. 2016), the Seventh Circuit observed that “an individual may challenge the existence of a qualifying conviction without impermissibly challenging the validity of the prior conviction.”

The Court noted that both the Ninth and Second Circuits have reached a similar conclusion as announced by the Seventh. The Ninth Circuit addressed the issue in United States v. McChristian, 47 F.3d 1499 (9th Cir. 1995), and the Second suggested a distinction between challenging the existence of a conviction and the validity of a conviction under § 851 in the unpublished opinion United States v. Gabriel, 599 Fed. Apprx. 407 (2d Cir. 2015).  

The Court concluded its opinion by discussing the broad purpose of § 851(e) and determined that it supports the Court’s ruling. According to the Court, § 851(e) exists in order to limit administrative difficulties and to protect the finality of state court judgments. Permitting Arreola-Castillo to show the district court one piece of paper —the state court order vacating his convictions—would not present any significant administrative difficulty. And there was surely no reason to be concerned with protecting the state court’s judgments, because “New Mexico already deprived its own judgments of force and effect by vacating them.”

Accordingly, the Court reversed the judgment of the district court. See: Arreola-Castillo v. United States, 889 F.3d 378 (7th Cir. 2018). 

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