United States v. Khaled Obeid , 707 F.3d 898 ( 2013 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 12-1254
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
K HALED O BEID ,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 02 CR 038-2—Blanche M. Manning, Judge.
A RGUED S EPTEMBER 26, 2012—D ECIDED F EBRUARY 22, 2013
Before E ASTERBROOK, Chief Judge, and W OOD and
W ILLIAMS, Circuit Judges.
W OOD , Circuit Judge. In exchange for his cooperation
with the government, Khaled Obeid is serving a federal
sentence that is at least 45% shorter than it would have
been had he been sentenced within the range recom-
mended by the United States Sentencing Guidelines.
He believes, however, that he is entitled to an addi-
tional 24-month reduction, based not on his own coopera-
2 No. 12-1254
tion, but on that of his identical twin brother, Khaldon
Esawi. The district court concluded that Obeid was not
so entitled, and we agree, though for a different reason.
The proper procedural vehicle for Obeid’s claim is not,
as Obeid, the government, and the district court all ap-
parently assumed, a motion to compel under Federal
Rule of Criminal Procedure 35(b). It is instead a motion
under 28 U.S.C. § 2255. Although we find that relief
for Obeid is not barred for lack of permission to file a
successive motion, it is unavailable for another reason:
his motion was filed beyond the time permitted by
Section 2255(f) and thus was properly dismissed.
I
Over 10 years ago, Obeid and his twin brother Esawi
were indicted along with more than 10 others for
their involvement in a conspiracy to smuggle
pseudoephedrine tablets from Canada into the United
States; the pills were ultimately destined to be used in
Mexico for methamphetamine production. In all, Obeid
and Esawi smuggled over 215 million pseudoephedrine
tablets into this country between 2001 and their indict-
ment in 2002. The brothers were also involved in
money laundering related to their smuggling scheme.
In 2004 Obeid and Esawi each pleaded guilty to drug
possession and money laundering. Their substantially
identical plea agreements contemplated that sentencing
would be deferred while the brothers assisted the gov-
ernment with its ongoing investigation. In exchange
for that assistance, the government promised to seek
No. 12-1254 3
a downward departure for each brother under Sec-
tion 5K1.1 of the guidelines.
Obeid and Esawi were both sentenced in 2006. At
Obeid’s sentencing hearing, the government, as promised,
moved for a below-guidelines sentence. The Assistant
U.S. Attorney noted that much of the cooperation
the government was attributing to Obeid actually had
been provided by Esawi. The AUSA explained that
because the brothers possessed more or less the same
information, it was often unnecessary to solicit
assistance from both of them, but that the government
was nonetheless willing to credit each with the other’s
cooperative efforts. The district court granted the gov-
ernment’s motion and sentenced Obeid to 178 months
in prison, which represented a 45% discount from the
low end of the guidelines range.
In January 2006, several months before Obeid’s sen-
tencing, the government entered into a supplemental
plea agreement with Esawi in which it agreed to seek a
further reduction in Esawi’s sentence pursuant to Rule
35(b) in exchange for his continuing cooperation. As a
result, in 2008 Esawi received an additional 24-month
sentence reduction. Obeid knew of this supplemental
agreement by the time of his sentencing, but since it
related to future cooperation he had no way of knowing
whether the government would eventually make the
anticipated motion or how much of a reduction it
would seek. Obeid also knew that he had not entered
into a comparable agreement. Although the govern-
ment signaled at the sentencing hearing that it would
4 No. 12-1254
be open to negotiating a supplemental agreement
with Obeid if he were willing to provide additional
assistance, Obeid never attempted to negotiate such an
agreement or to provide further cooperation. Rather, he
spent the next several years attempting to undo his sen-
tence. We dismissed his initial appeal of his sentence
in 2007 on the ground that it violated the appellate
waiver in his plea agreement. United States v. Obeid, 256
F. App’x 816 (7th Cir. 2007). Obeid later moved for
relief under 28 U.S.C. § 2255, alleging ineffective
assistance of counsel. We denied Obeid’s request for a
certificate of appealability from the district court’s deci-
sion denying relief. Obeid v. United States, No. 08-2361
(7th Cir. Dec. 12, 2008).
On July 15, 2010, Obeid returned to the district court
with a filing that he styled a “motion to compel the gov-
ernment to seek an additional reduction under
[Rule 35(b)].” In the motion, Obeid alleged that the gov-
ernment had promised to treat him and Esawi identically
for purposes of crediting their cooperation, and that
the government was violating that promise by refusing
to seek the same Rule 35(b) reduction for Obeid that it
had for Esawi back in 2008. The district court held an
evidentiary hearing, after which it found that neither
Obeid’s plea agreement nor statements made at his sen-
tencing hearing established that the government had
ever promised to continue to credit Obeid with his
brother’s cooperation after sentencing. The district
court further concluded that the government’s explana-
tions for why it chose to seek future cooperation from
Esawi only—namely, that Esawi had a better memory
No. 12-1254 5
and that dealing with Obeid was “almost impossi-
ble”—were rationally related to its legitimate interest
in obtaining cooperation. Accordingly, the district court
denied the motion. This appeal followed.
II
A
Obeid, the government, and the district court all
treated Obeid’s motion as one properly filed under
Federal Rule of Criminal Procedure 35(b). This was in-
correct. Rule 35(b) provides a mechanism for the gov-
ernment to seek a reduction in a defendant’s sentence
based on his substantial cooperation; it nowhere allows
a defendant to force the government to seek a Rule 35(b)
reduction on his behalf. Nevertheless, if the govern-
ment refuses to follow through on a promise to file
a Rule 35(b) motion, and that refusal is “based on an
unconstitutional motive” or is “not rationally related
to any legitimate Government end,” Wade v. United
States, 504 U.S. 181, 185-86 (1992), the defendant is not
without opportunity for redress. Rather, as we ex-
plained in United States v. Richardson, 558 F.3d 680 (7th
Cir. 2009), the defendant may challenge the govern-
ment’s refusal in a motion under 28 U.S.C. § 2255. Id.
at 681-82. We will therefore treat Obeid’s filing as such
a motion.
Because Obeid already has one Section 2255 motion to
his name, his new filing must clear the jurisdictional
hurdle imposed by the Antiterrorism and Effective
6 No. 12-1254
Death Penalty Act (AEDPA). That statute provides that
a district court may not entertain a “second or succes-
sive” motion filed by a federal prisoner unless the
prisoner has first obtained authorization to file from
the court of appeals. §§ 2244(a); 2255(h); see also Nuñez
v. United States, 96 F.3d 990, 991 (7th Cir. 1996). Obeid
did not ask this court for its permission to file his
motion, and so if it qualifies as “successive,” the district
court lacked jurisdiction to adjudicate it. Nuñez, 96 F.3d
at 991. We add that to the extent Obeid is now asking
for our permission to file a successive motion, see, e.g.,
United States v. Lloyd, 398 F.3d 978, 981 (7th Cir. 2005), the
answer must be no. The arguments he presented in his
“Rule 35(b)” motion fall under neither of AEDPA’s ex-
ceptions to the prohibition on successive motions. See
§ 2255(h) (permitting successive motions only when
they raise claims based on either newly discovered evi-
dence that establishes the petitioner’s innocence, or “a
new rule of constitutional law[] made retroactive to
cases on collateral review by the Supreme Court”).
Obeid can proceed with this case, therefore, only if,
under the complex rules that have evolved since
AEDPA’s passage, his motion cannot be characterized
as truly successive. In the context of discussing petitions
filed under 28 U.S.C. § 2254, which applies to persons
in state custody, the Supreme Court has held repeatedly
that not every petition “filed second or successively
in time” to a prior petition counts as “second or succes-
sive,” “even when the later filings address a [] judg-
ment already challenged in a prior § 2254 application.”
No. 12-1254 7
Panetti v. Quarterman, 551 U.S. 930, 944 (2007); see also
Magwood v. Patterson, 130 S. Ct. 2788, 2796 (2011) (“[I]t
is well settled that the phrase does not simply refe[r] to
all § 2254 applications filed second or successively in
time.”) (alterations in original) (internal quotation
marks omitted). On this point, there is no material dif-
ference between motions under Section 2255 and
petitions under Section 2254, and so we have no hesita-
tion in applying those holdings to Obeid’s case.
The Court’s decision in Panetti sheds light on when
a petition or motion that is numerically second should
also be subject to the special rules for successive filings.
There, a death row inmate who previously had filed a
federal habeas corpus petition raising various issues
about his trial and sentence sought to bring a second
petition in which he asserted that he was mentally incom-
petent and thus could not be executed under Ford v.
Wainwright, 477 U.S. 399 (1986). 551 U.S. at 937-38. Al-
though the state conceded that Ford claims are gen-
erally unripe until well after AEDPA’s standard
one-year limitation period for filing an initial petition
has run (because the prisoner cannot raise a Ford claim
until his execution is imminent), it argued that Panetti’s
second petition was nevertheless “second or successive”
to his first and thus barred by Section 2244(b). Id. at
942-43. The Court rejected this reading of the law, holding
instead that a petition raising a previously unripe
Ford claim is not second or successive to a prior petition
and thus does not fall within the purview of Section
2244(b). Id. at 947. In so holding, the Court noted that the
phrase “second or successive” “takes its full meaning
8 No. 12-1254
from [the Court’s] case law, including decisions predating
the enactment of [AEDPA].” Id. at 943-44.
The Court’s conclusion in Panetti hinged on the fact
that the Ford claim was not yet available when Panetti
brought his first federal petition. Id. at 943-47. A number
of our sister circuits have generalized this logic to apply
to other types of second-in-time petitions that were not
ripe at the time of the initial petition. See, e.g., United
States v. Buenrostro, 638 F.3d 720, 725 (9th Cir. 2011)
(“Prisoners may file second-in-time petitions based on
events that do not occur until a first petition is con-
cluded. . . . [S]uch claims were not ripe for adjudica-
tion at the conclusion of the prisoner’s first federal
habeas proceeding.” (citing cases)); Johnson v. Wynder, 408
F. App’x 616, 619 (3d Cir. 2010) (“We see no reason to
avoid applying Panetti in the context of other types of
claims that ripen only after an initial federal habeas
petition has been filed.”); In re Jones, 652 F.3d 603, 605
(6th Cir. 2010) (petition raising ex post facto claim based
on amendments to state law that occurred after first
petition was not second or successive); Leal Garcia v.
Quarterman, 573 F.3d 214, 222-24 (5th Cir. 2009) (“If,
however, the purported defect did not arise, or the
claim did not ripen, until after the conclusion of the
previous petition, the later petition based on that defect
may be non-successive.”); Thompkins v. Secretary, Dep’t of
Corr., 557 F.3d 1257, 1260-61 (11th Cir. 2009) (claim
that delay in executing petitioner violated the Eighth
Amendment was not second or successive because
the delay could not give rise to a constitutional claim
until it had occurred). (We note that there is some varia-
No. 12-1254 9
tion in these decisions about the critical time. Some
imply that in order to escape the successive petitions bar,
a claim must be unripe only at the time the first petition
is filed, see Johnson, 408 F. App’x at 619; Jones, 652 F.3d at
605 (same), while others indicate that the claim must
still be unripe when the first petition is adjudicated, see
Buenrostro, 638 F.3d at 725; Leal Garcia, 573 F.3d at 222.
Although this distinction could be dispositive in certain
cases, it makes no difference to the outcome here, and
neither party commented on it. Accordingly, we leave
resolution of this question for another day.)
In adopting this ripeness rule, courts have been careful
to distinguish genuinely unripe claims (where the
factual predicate that gives rise to the claim has not yet
occurred) from those in which the petitioner merely
has some excuse for failing to raise the claim in his
initial petition (such as when newly discovered evidence
supports a claim that the petitioner received ineffective
assistance of counsel); only the former class of petitions
escapes classification as “second or successive.” See
Buenrostro, 638 F.3d at 726; Thompkins, 557 F.3d at 1260.
Our pre-Panetti decision in In re Page, 170 F.3d 659 (7th
Cir. 1999), offers an example of a claim that fits within
this latter category and thus was properly rejected as
successive. The petitioner in Page was trying in both
petitions to attack the state’s original failure to hold a
fitness hearing; he was not entitled, we held, to a second
opportunity to raise that point, even though state law
had changed in the interim. 170 F.3d at 660-61.
The idea that a motion or petition that is literally “sec-
ond” might not be subject to the rules of Sections 2244
10 No. 12-1254
and 2255(h) is not new to this court. In the past, we have
acknowledged that certain petitions, such as those dis-
missed for failure to pay a filing fee or to exhaust
state-court remedies, do not trigger AEDPA’s successive-
petition bar. See, e.g., Altman v. Benik, 337 F.3d 764, 766
(7th Cir. 2003). We have not yet applied a ripeness rule
for determining whether a petition is second or succes-
sive. Cf. Suggs v. United States, ___ F.3d ___, 2013 WL
173969, *2 (7th Cir. Jan. 17, 2013) (summarizing Panetti);
Purvis v. United States, 662 F.3d 939, 944 (7th Cir. 2011)
(considering whether to apply ripeness principles from
Panetti, but concluding that the case was more appro-
priately resolved by the procedures outlined in Rhines
v. Weber, 544 U.S. 269 (2005)). Seeing no reason to part
ways with our sister circuits, however, we join them
in concluding that a petition or motion based on a
claim that did not become ripe any earlier than until
after the adjudication of the petitioner’s first petition or
motion is not “second or successive” within the meaning
of Sections 2244 and 2255(h). (We reiterate that we
express no view concerning claims that become ripe in
between the filing and adjudication of a first petition.)
Applying this principle to Obeid, it appears that his
Rule 35(b) claim became ripe no earlier than June 9, 2008,
when the government moved for a Rule 35(b) reduction
on behalf of Esawi alone. Obeid has persistently main-
tained that the government promised to treat him and
Esawi equally, crediting all cooperation provided by one
to the other and vice versa. The factual predicate for
Obeid’s claim was thus not in place until the govern-
ment violated this (supposed) promise by seeking an
No. 12-1254 11
additional sentence reduction only for Esawi. Obeid’s
initial Section 2255 motion was filed on February 19,
2008, and denied on February 29, 2008, several months
before the June date. Accordingly, his current petition
was not second or successive, and the district court
had jurisdiction to decide it.
B
While important, jurisdiction is far from the only pro-
cedural prerequisite that Obeid must satisfy. We need
consider only one more: the rules establishing when a
motion under Section 2255 must be filed. Section 2255(f)
imposes a one-year limitation period that runs from, as
relevant here, “the date on which the facts supporting
the claim or claims presented could have been dis-
covered through the exercise of due diligence.” Here,
counsel for Obeid has represented that “it was rea-
sonable for Obeid to remain unaware of the impact of
the supplemental plea agreement [with Esawi] until
June and [sic] October of 2008, when the Government filed
its plea [on Esawi’s behalf].” (Emphasis added.) We
take this as an acknowledgment that Obeid realized, or
should have realized, that the government had broken
its supposed promise no later than the end of 2008.
Obeid’s motion, filed on July 15, 2010, came along at
least a year and a half later and was thus too late.
Finally, we note that our preliminary review of the
merits strongly suggests that Obeid’s motion was
doomed in any event. Obeid cannot claim that the gov-
ernment violated the promises it made in the plea agree-
12 No. 12-1254
ment, for the simple reason that nothing in that docu-
ment addressed post-sentencing cooperation. The plain
language of the agreement controls so long as its
terms are unambiguous. See United States v. Monroe,
580 F.3d 552, 556 (7th Cir. 2009). Obeid’s plea agreement
provided that the government would move for a down-
ward departure from the guidelines under Section 5K1.1,
and the government did just that. The agreement
included no additional promises. Nor does Obeid pre-
sent any compelling evidence that the government
ever promised that Obeid would receive additional
credit for his brother’s future cooperation. Rather, the
evidence shows that Obeid received exactly what he
bargained for: a 45% reduction off the low end of the
sentencing guidelines range. He was entitled to no more.
The judgment of the district court is A FFIRMED.
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