                          NONPRECEDENTIAL DISPOSITION
                           To be cited only in accordance with
                                    Fed. R. App. P. 32.1




              United States Court of Appeals
                                  For the Seventh Circuit
                                  Chicago, Illinois 60604

                                   Submitted July 13, 2010
                                    Decided July 13, 2010

                                           Before

                           ILANA DIAMOND ROVNER, Circuit Judge

                           DIANE S. SYKES, Circuit Judge

                           JOHN DANIEL TINDER, Circuit Judge

No. 09-2955

UNITED STATES OF AMERICA,                           Appeal from the United States District
     Plaintiff-Appellee,                            Court for the Eastern District of Wisconsin.

       v.                                           No. 04-CR-285-027

LANELL B. TAYLOR,                                   J.P. Stadtmueller,
    Defendant-Appellant.                            Judge.

                                         ORDER

       Lanell Taylor entered into an agreement to plead guilty to conspiracy to distribute
cocaine, 21 U.S.C. §§ 846, 841(a)(1), and was sentenced to ten years’ imprisonment, the
mandatory minimum, id. § 841(b)(1)(A)(ii), (iii). After his sentencing, Taylor testified as a
government witness at the jury trial of three codefendants, all of whom were convicted.
When the government did not reciprocate by moving to reduce his sentence under Federal
Rule of Criminal Procedure 35(b), Taylor filed his own motion, ostensibly under that rule.
The government objected, and the district court denied relief. Taylor appeals that ruling,
and although he is assisted by appointed counsel, his attorney moves to withdraw on the
ground that the appeal is frivolous. Counsel has filed a supporting brief in the format
required of a lawyer seeking to withdraw from a direct criminal appeal under Anders v.
No. 09-2955                                                                                Page 2

California, 386 U.S. 738 (1967), but that step was unnecessary: this appeal arises from a
postconviction proceeding, see United States v. Richardson, 558 F.3d 680 (7th Cir. 2009), and
since there is no right to appointed counsel, neither was there call to comply with the
Anders safeguards, see Pennsylvania v. Finley, 481 U.S. 551, 555 (1987); DiAngelo v. Ill. Dep’t of
Public Aid, 891 F.2d 1260, 1262 (7th Cir. 1989). Nevertheless, we invited Taylor to respond
to counsel’s motion and identify any issues he wishes us to consider, see C IR. R. 51(b), and
he has done so.

        Taylor’s allegations, which the government has never denied, are troubling. He was
one of 31 persons charged with engaging in a broad conspiracy to distribute powder and
crack cocaine. With the assistance of retained counsel, Taylor executed a plea agreement
obligating him “to fully and completely cooperate with the government in its investigation
of this and related matters, and to testify truthfully and completely before the grand jury
and at any subsequent trials or proceedings.” The government, in turn, promised to
consider moving for a prison term below the minimum mandatory if Taylor provided
substantial assistance. In November 2005, the district court accepted Taylor’s guilty plea,
and in January 2006, he was sentenced.

         Six months later, the government sought Taylor’s testimony at the consolidated jury
trial of his only three codefendants who did not plead guilty. Taylor’s attorney made
arrangements with government counsel to attend a pretrial interview scheduled for July 12,
2006, but when Taylor’s attorney arrived for the interview, he learned that the government
had met with Taylor the day before. During the interview Taylor had said he wanted his
attorney to be present, but the prosecutors replied that his lawyer’s presence was
unnecessary and pressed on with the interview. Taylor then testified at his codefendants’
one-day trial on July 26. All three were found guilty. In early 2007, two of them received
30-year prison sentences, and in May 2007, the third codefendant, Jarvis King, was
sentenced to life.

       As far as this record shows, Taylor’s assistance to the government ended with his
testimony in July 2006, but he received nothing from the government for his cooperation.
Finally in October 2008, through counsel, Taylor filed what he characterized as a motion
under Rule 35(b) for reduction of sentence. He argued that he substantially assisted the
government and that the government’s refusal to file a Rule 35(b) motion constituted a
breach of the plea agreement. The government responded that Taylor’s trial testimony
regarding codefendant King had not been entirely truthful. According to the government,
Taylor had said during his pretrial interview that King and others sold drugs out of a
particular house and that Taylor knew “that the drug house was very busy.” At trial,
however, Taylor conceded on cross-examination that he never actually saw King make a
No. 09-2955                                                                              Page 3

drug sale at the house. The government characterized Taylor’s trial testimony as
inconsistent with what he said during the pretrial interview and thus asserted that he lied
at trial and was not deserving of a reduced sentence. Taylor insisted, however, that the
prosecutors had simply misunderstood his statements during the pretrial interview, and
that if his lawyer had been in attendance, as both he and his lawyer and specifically
requested, the misunderstanding would have been averted. The government has never
responded to this contention, and the district court did not address the Sixth Amendment
implication. Instead, without conducting an evidentiary hearing to determine whether
Taylor’s testimony did in fact contradict his statements in the pretrial interview, the district
court accepted the government’s characterization of events and denied Taylor’s motion on
the merits.

        In his Anders brief counsel takes the position that this appeal is frivolous because, he
says, our decision in Richardson clarified that the district court did not have subject-matter
jurisdiction to decide his motion for a sentence reduction. In Richardson we held that 18
U.S.C. § 3582(c)(i) authorizes a district court to revisit a sentence under Rule 35(b) only as
“expressly” permitted by that rule, which refers to government-filed motions only. 558
F.3d at 681. Although counsel is correct that the district court lacked jurisdiction under
Rule 35(b) to consider Taylor’s motion, the court nevertheless had subject-matter
jurisdiction under 28 U.S.C. § 2255 because the motion, no matter the label, constituted a
collateral attack on his sentence. That was our conclusion in Richardson, 558 F.3d at 681-82,
since “any post-judgment motion in a criminal proceeding that fits the description of § 2255
¶ 1 is a motion under § 2255,“ United States v. Evans, 224 F.3d 670, 672 (7th Cir. 2000).

        Still, we agree with counsel that Taylor cannot benefit from pressing forward with
this appeal because his motion, once understood to be grounded in § 2255, was plainly
time-barred. Section 2255(a) authorizes a motion by a prisoner “claiming the right to be
released upon the ground that the sentence was imposed in violation of the Constitution or
laws of the United States, or that the court was without jurisdiction to impose such
sentence, or that the sentence was in excess of the maximum authorized by law, or is
otherwise subject to collateral attack.” 28 U.S.C. § 2255(a). A defendant must file a § 2255
motion within one year from the date on which the challenged judgment became final.
Id. § 2255(f)(1); United States v. Rollins, 607 F.3d 500, 504 (7th Cir. June 9, 2010).

        In this situation, where Taylor claims that the government breached his plea
agreement by refusing to file a Rule 35(b) motion, the commencement of the one-year time
limit to challenge the breach under § 2255 must turn on when the government’s action
became “final.” Under Rule 35(b) a district court may reduce a sentence after it has been
imposed only if the government files a motion within one year of the defendant’s
No. 09-2955                                                                              Page 4

sentencing. FED. R. C RIM. P. 35(b)(1); United States v. Wilson, 390 F.3d 1003, 1006 (7th Cir.
2004). The government may file a Rule 35(b) motion more than a year after sentencing if
the defendant’s assistance could not have been provided or used by the government earlier,
FED. R. C RIM. P. 35(b)(2); United States v. Shelby, 584 F.3d 743, 744 (7th Cir. 2009), but that
exception does not apply here.

         Taylor was sentenced on January 18, 2006, and, as we have noted, his assistance to
the government was complete six months later when he testified at the July 2006 trial of his
codefendants. The government, therefore, had until January 2007 to file a motion under
Rule 35(b), and when it did not act within that time frame, Taylor’s sentence was final
because the district court was not otherwise permitted by statute to reduce his mandatory-
minimum sentence. See 18 U.S.C. § 3582(c); United States v. Forman, 553 F.3d 585, 588 (7th
Cir. 2009). If there was a breach of the plea agreement, that breach was complete and
irreversible when the government’s one-year deadline to file a Rule 35(b) motion expired.
At that point Taylor was aggrieved and knew it, and he had until January 2008, one year
later, to file a § 2255 motion claiming a breach of the plea agreement. Yet he did not file his
mislabeled § 2255 motion until October 2008, long past the deadline.

        In his Rule 51(b) response Taylor repeats the argument he made in the district court:
The government refused to file a Rule 35(b) motion, and thus breached the plea agreement,
as a consequence of denying him access to counsel during the pretrial interview. Indeed,
this might have been a forceful argument if made in a timely § 2255 motion, a question we
do not decide. Compare United States v. Ming He, 94 F.3d 782, 790 (2d Cir. 1996) (exercising
supervisory power to require that government permit defense counsel to attend interviews
of cooperating defendants, in part because “a defense attorney might help resolve potential
disagreements between the government and the defendant and assist the defendant in
clarifying his answers to ensure they are complete and accurate”), with Laird v. United
States, 987 F.2d 527, 530 (8th Cir. 1993) (declining to extend right to counsel to post-trial
debriefings); see also Greenup v. United States, 401 F.3d 758, 767 (6th Cir. 2005) (declining to
decide whether defendant has a right to counsel at debriefing with government agents
during attempted cooperation).

        In the excerpts we have available, it is difficult to see any clear discrepancy between
Taylor’s pretrial interview and his trial testimony; the government’s summary of the
interview recounts Taylor saying that codefendant King and others “were selling crack out
of” a particular drug house, but the excerpt we are given does not explain the basis of
Taylor’s knowledge. At trial he said that he did not see King make any drug sales, but what
he saw and what he knew would not necessarily be coextensive. Trial testimony of course
is limited by hearsay rules, but an interview outside the courtroom may delve into a
No. 09-2955                                                                                Page 5

defendant’s broader knowledge informed by hearsay rather than personal observation.
Taylor asserts that having counsel present would have helped avoid misunderstandings
about the questions asked and the answers given, and in Ming He the Second Circuit was
persuaded by the argument. Still, Taylor’s claim, whether sound or not, was presented
long after the one-year limitations period for a § 2255 motion had expired. The district
court was correct in denying the motion, then, but should have done so on the ground that
the motion was untimely. See Godoski v. United States, 304 F.3d 761, 764 (7th Cir. 2002);
Phillips v. Seiter, 173 F.3d 609, 610-11 (7th Cir. 1999). And on that basis we affirm the
judgment.

        We note that before a defendant’s mislabeled § 2255 motion can trigger the
restrictions against filing second or successive collateral attacks under 28 U.S.C. § 2244(b),
the district court must inform the defendant of its intent to recharacterize his motion as a
collateral attack, warn him of the § 2244(b) restrictions, and give him the opportunity to
refile a § 2255 motion raising all issues for collateral attack. Castro v. United States, 540 U.S.
375, 377 (2003); Henderson v. United States, 264 F.3d 709, 711 (7th Cir. 2001). The district
court did not follow this procedure before reaching the merits of Taylor’s motion; thus, if in
the future Taylor should develop a basis for filing a § 2255 motion, he will not be subject to
the § 2244(b) restrictions.

       Counsel’s motion to withdraw is GRANTED, and the judgment of the district court
is AFFIRMED.
