                              In the

United States Court of Appeals
               For the Seventh Circuit

Nos. 12-1559 & 12-2177

P AUL V ILLANUEVA,
                                                Petitioner-Appellant,
                                  v.

K EITH A NGLIN,

                                                Respondent-Appellee,

                                 and

O RENCIO S ERRANO,
                                                Petitioner-Appellant,

                                  v.

Z ACH R OECKEMAN,
                                                Respondent-Appellee.



            Appeals from the United States District Court
        for the Northern District of Illinois, Eastern Division.
               Nos. 1:11-cv-04310 and 1:11-cv-03327—
           John W. Darrah and Joan B. Gottschall, Judges.



       A RGUED A PRIL 12, 2013—D ECIDED JUNE 17, 2013
2                                     Nos. 12-1559 & 12-2177

    Before B AUER, P OSNER, and F LAUM, Circuit Judges.
  F LAUM, Circuit Judge. Petitioners Paul Villanueva and
Orencio Serrano both pled guilty to unrelated crimes in
exchange for a prison sentence agreed to with the state.
Several years into those sentences, they learned their
pleas also carried a three-year term of mandatory super-
vised release. They now petition for writs of habeas
corpus suggesting the state deprived them of the
benefit of their plea bargains in violation of Santobello
v. New York, 404 U.S. 257 (1971). Separate district courts
denied those petitions, and we affirm.


                        I. Background
A. Factual Background
    1. Criminal Proceedings
   Both Villanueva and Serrano entered guilty pleas to
unrelated charges—Serrano to one count of attempted
first degree murder and to one count of possession of
cannabis, Villanueva to one count of first degree murder.
According to Serrano, he pled guilty in exchange for
a fourteen-year prison sentence on the attempted
murder charge and a consecutive one-year sentence on
the possession charge. Villanueva asserts that he pled
for a twenty-five year sentence on his murder charge.
According to petitioners, the plea agreements made no
mention of any term of supervised release even though
Illinois imposes a three-year term of mandatory super-
vised release (MSR) on the murder and attempted
murder charges. See 730 ILCS 5/5-8-1(d)(1).
Nos. 12-1559 & 12-2177                                            3

  At both Serrano’s and Villanueva’s plea hearings,
however, the state judges mentioned the mandatory
term of supervised release and obtained defendants’
understanding that the law imposed such a term.
For example, the state judge told Serrano:
    You understand that [the attempted murder charge]
    is a Class X felony and it is subject to a possible
    penalty of incarceration in the penitentiary for a
    determinant period of time between 6 and 30 years,
    a fine of up to $25,000 or both, and it’s also subject
    to what’s called mandatory supervised release for
    a period after your release from the penitentiary.
    Do you understand that?
 “Yes,” Serrano answered, before pleading guilty and
receiving consecutive one- and fourteen-year sentences.
The judge asked Serrano if he had any questions;
Serrano did not. The state judge made no mention of
the MSR term, and the judgment of conviction like-
wise omitted any reference to the MSR term.1 Serrano’s


1
  Illinois law at the time did not require listing the MSR term
on the conviction and sentencing order. See People v. Rinehart,
943 N.E.2d 698, 706 (Ill. App. 2010) (noting a “trial court could
fail to include MSR as part of sentencing and have the
error remedied by operation of law”), vacated in part 962
N.E.2d 444 (Ill. 2012); see also People v. Morgan, 470 N.E.2d 1118,
1120 (Ill. 1984) (noting MSR “attaches by operation of law to
sentences imposed upon a trial verdict as well as upon a
guilty plea”). Even the language of the statute suggests MSR
did not need to be provided for in the sentencing order:
                                                      (continued...)
4                                   Nos. 12-1559 & 12-2177

conviction became final when the time for seeking appel-
late review passed on July 5, 2002.
  Villanueva’s case proceeded along similar lines. After
Villanueva expressed his desire to plead guilty, the
state judge told Villanueva:
    First degree murder carries with it a possible penalty
    of not less than 20 nor more than 60 years in the
    Illinois Department of Corrections and a period of
    mandatory supervised release of 3 years.
Villanueva told the state judge he understood these
consequences. He also indicated that no one had
“promise[d] [him] anything other than what [the]
sentence would be, and that is 25 years in the Illinois
Department of Corrections[.]”
  The court sentenced him “pursuant to . . . the disposi-
tion arrived at and agreed to by the parties and the
Court [to a term of] 25 years in the Illinois Department
of Corrections.” During sentencing, the state judge did
not mention any term of MSR and the judgment of con-
viction did not reflect any term of MSR. The court
asked Villanueva if he understood his sentence, and


1
   (...continued)
“[E]very sentence shall include as though written therein a
term [of supervised release] in addition to the term of im-
prisonment.” 730 ILCS 5/5-8-1(d) (2004) (emphasis added).
After petitioners were sentenced, the General Assembly modi-
fied this provision. It now requires that the term of man-
datory supervised release be specified in the sentencing
order. See 2011 Ill. Legis. Serv. P.A. 97-531.
Nos. 12-1559 & 12-2177                                      5

Villanueva indicated he did. His conviction became
final on October 21, 2004.


  2.   State Collateral Review
   Serrano and Villanueva learned of the MSR require-
ment from a prison counselor and another inmate, re-
spectively. This realization prompted both to file pro se
petitions for post-judgment relief. Villanueva’s petition
alleged that he first learned of the MSR requirement on
December 15, 2006 and asserted that the MSR term de-
prived him of “the benefit of his bargain” he made with
the state in exchange for his guilty plea. He also relied
on People v. Whitfield, where the Illinois Supreme Court
granted post-conviction relief because the trial court
“failed to admonish defendant, as required by [Illinois]
Supreme Court Rule 402 and due process, that a
three-year MSR term would be added, by operation of
law, to the negotiated 25-year sentence.” 840 N.E.2d 658,
673 (Ill. 2005). He requested specific performance of the
plea agreement through a three-year reduction in the
term of imprisonment such that the total length of time
he spent in custody of the Illinois Department of Correc-
tions—imprisonment plus MSR—equaled the twenty-five
years to which he agreed in the plea. Serrano similarly
argued that the MSR term deprived him of “the bene-
fit of the bargain” and made the same request for
specific performance. In addition to Whitfield, Serrano
cited United States ex rel. Baker v. Finkbeiner to support his
due process claim. 551 F.2d 180 (7th Cir. 1977). He never
identified the specific date on which he first learned of
the MSR term.
6                                  Nos. 12-1559 & 12-2177

  The state courts dismissed both petitions for
post-conviction relief and Serrano and Villanueva both
appealed. In Serrano’s case, the appellate court relied
on Whitfield, reversed the trial judge, and reduced
Serrano’s prison term by three years. Villanueva did not
fare as well—the appellate court affirmed his denial
of post-conviction relief. The state sought review of
Serrano’s case in the Supreme Court, and Villanueva
did in his.
   Shortly after these appellate proceedings, however, the
Illinois Supreme Court issued People v. Morris, in which
it concluded that Whitfield—the Illinois Supreme Court
case on which both Serrano and Villanueva relied—
announced “a new rule that does not warrant retroactive
application on collateral review.” 925 N.E.2d 1069, 1076
(Ill. 2010). The Supreme Court vacated the appellate
decisions in both Serrano’s and Villanueva’s cases and
remanded for reconsideration in light of Morris.
  On remand, neither petitioner could rely on Whitfield,
which came down after their initial convictions. They
reframed their arguments in terms of Santobello v. New
York, where the United States Supreme Court held that
the state must uphold the offers it makes to induce a
defendant to plead guilty. 404 U.S. 257 (1971). The appel-
late courts rejected their arguments on remand, con-
cluding a “defendant cannot avoid Morris by relying
on Santobello instead of Whitfield.” Both defendants
sought review in the Illinois Supreme Court, which
denied their petitions for review. The U.S. Supreme
Court likewise denied their petitions for certiorari.
Nos. 12-1559 & 12-2177                                  7

B. Procedural Background: Federal Habeas Proceedings
  Without further recourse in the state system, Serrano
and Villanueva petitioned the district court for writs of
habeas corpus. See 28 U.S.C. § 2254. In Villanueva’s case,
the district court found the statute of limitations
satisfied because it was tolled until he learned of the
MSR requirement from the inmate. It dismissed the
claim on the merits, though, noting that the U.S. Sup-
reme Court has never identified a due process right to
be advised of MSR when entering into a plea agreement.
Another district court also dismissed Serrano’s petition.
It saw no need to address the statute of limitations
defense because it denied Serrano’s petition on the
merits, deploying reasoning similar to the district court
in Villanueva’s case.


                     II. Discussion
   Serrano and Villanueva argue their respective agree-
ments with the state (to plead guilty in exchange for a
particular prison term) precluded imposing a term of
MSR after their release. They argue their MSR terms,
which apply by operation of Illinois statute, constitute a
breach of the state’s plea agreements in violation of
Santobello. We can grant a writ of habeas corpus under
the Antiterrorism and Effective Death Penalty Act
of 1996 (“AEDPA”) if petitioners’ custody is contrary to
clearly established federal law as determined by the
United States Supreme Court. 28 U.S.C. § 2254(d)(1). We
first examine the state’s arguments that petitioners
failed to clear AEDPA’s procedural hurdles by neither
8                                  Nos. 12-1559 & 12-2177

filing their petitions within a year of the date on which
their convictions became final, § 2244(d)(1)(A), nor ex-
hausting state remedies by presenting their federal
claims in state court, § 2254(b)(1)(A). We agree Serrano’s
and Villanueva’s petitions were indeed untimely and
reject their argument for tolling the statute of limita-
tions. Notwithstanding, they still would have failed on
the merits, although they fairly alerted the state courts
to the federal nature of their claims.


A. Serrano and Villanueva Did Not Timely Seek Writs
   of Habeas Corpus
  Petitioners must seek a writ of habeas corpus in
federal court within a year of the date on which the state
court judgment becomes final (although the limitations
period is tolled while a “properly filed” collateral attack
is “pending” in state court). 28 U.S.C. § 2244(d)(1)(A),
(d)(2). Both Serrano and Villanueva filed their petitions
well outside this window. They argue, though—and
the district court in Villanueva’s case agreed—that the
statute was tolled until the “factual predicate of the
claim . . . could have been discovered through the
exercise of due diligence.” § 2244(d)(1)(D). According
to petitioners, they did not become aware of the
factual predicate for their Santobello claims until they
learned from the prison counselor and fellow inmate
that Illinois law imposed MSR.
  The court must consider both the date on which the
petitioner discovered the factual predicate of the claim
and whether the petitioner exercised due diligence in
Nos. 12-1559 & 12-2177                                   9

discovering that information. Moore v. Knight, 368 F.3d
936, 939 (7th Cir. 2004). Petitioners’ subjective knowl-
edge of the important facts starts the limitations clock,
but the clock also starts at the time a reasonable person
would have discovered those facts. Owens v. Boyd, 235
F.3d 356, 359 (7th Cir. 2000) (“federal statutes use objec-
tive indicators as triggers” for statutes of limitations).
  Regardless of when Serrano and Villanueva assert
they learned of the MSR requirement, they could have
learned of it on the day they were sentenced had they
used due diligence. In reviewing the range of possible
sentences with the petitioners, the state court judges in
both cases informed Serrano and Villanueva that their
crimes subjected them to a term of mandatory super-
vised release. Although the state courts did not
mention the term of supervised release when they
actually handed down the sentences, a reasonably
diligent defendant would have, under the circum-
stances, asked the sentencing judge or his attorney
about the mandatory term.
  “[D]ue diligence is equivalent to a rule of ‘inquiry no-
tice.’ ” Clarke v. United States, 703 F.3d 1098, 1100 (7th
Cir. 2013). The judges’ warning that petitioners’ pleas
subjected them to mandatory supervised release was
all the notice they needed. At that point, they should
have asked the judge if MSR applied to them. If that
was not enough, the term of supervised release is im-
posed by operation of statute, 730 ILCS 5/5-8-1(d)(1), so
petitioners’ lawyers were under a particular obligation
to inform the judge that MSR was off the table if the
10                                  Nos. 12-1559 & 12-2177

state had indeed bargained it away. Arguably the law-
yers’ failure to inquire could form the basis of an ineffec-
tive assistance claim. See Lafler v. Cooper, 132 S. Ct. 1376,
1384 (2012); Clarke, 703 F.3d at 1100. Petitioners
raise no such claim here. And without it the lawyers’
possible errors in alerting the judge—and uncovering
the factual bases for these habeas petitions—are imputed
to petitioners.
   Indeed, had anyone inquired with the sentencing
judges this litigation could have been altogether
avoided. The parties could then have fleshed out
whether MSR was part of their plea bargains. If it was
and petitioners would not have accepted a deal that
included it, they could have withdrawn their guilty
pleas and continued negotiating or stood trial. Given
the potential remedies available under Whitfield—a
three-year reduction in petitioners’ prison terms—
defense counsel have every incentive to let ambiguities
lie and then seek a reduction of the prison sentence
under Santobello later.
  Thus, we disagree with the district court’s conclusion
that Villanueva could not have discovered the terms of
his sentence any earlier than he did. As for Serrano,
he argues the state trial judge admitted during the
post-conviction hearing that the court never told him
his conviction carries a mandatory supervised release
period of three years. That assertion, though undis-
puted, is irrelevant. The time Serrano should have deter-
mined whether MSR applied matters, and that occurred
when the judge told him during his plea colloquy that
Nos. 12-1559 & 12-2177                                 11

he was “subject to what’s called mandatory super-
vised release for a period after your release from the
penitentiary.” This statement put Serrano on inquiry
notice and started the statute of limitations clock.
  Finally, Serrano argues that this approach to the
statute of limitations requires resolving the case on
the merits. He essentially asserts that the limitations
period did not start at the sentencing hearing unless we
determine Serrano knew at the time of his sentencing
that MSR was part of his sentence, which is the heart of
his claim. Serrano confuses the critical question. We can
assume Serrano did not know his sentence included
MSR. For limitations purposes, the question is whether,
given the state judge’s statements during the plea
and sentencing hearing, he could have known had he
exercised due diligence. Thus, we need not consider
the ultimate merits of the claim to determine whether
Serrano has satisfied the statute of limitations.


B. Villanueva and Serrano Have Not Procedurally
   Defaulted Their Santobello Claims
  Petitioners’ untimely petitions foreclose habeas relief,
but even had they petitioned within the statutory
period (or we accept their due diligence arguments),
their claims still fail on the merits. Before reaching
that analysis, though, petitioners must clear additional
procedural hurdles. The state raises two arguments
that petitioners have procedurally defaulted their
claims. First, it argues that Villanueva failed to exhaust
his state remedies by failing to present his Santobello
12                                  Nos. 12-1559 & 12-2177

claim at each level of the state proceedings. Second, the
state argues that the state courts dismissed petitioners’
claims on independent and adequate state grounds.


  1.   Petitioners Presented Their Respective Santobello
       Claims at Each Level of State Review
   The State first accuses Villanueva of presenting his
Santobello claim for the first time on remand from the
Illinois Supreme Court’s vacatur of the first appellate
ruling. A petitioner must raise his claims below “to alert
fairly the state court to the federal nature of the claim
and to permit that court to adjudicate squarely that
federal issue.” Verdin v. O’Leary, 972 F.2d 1467, 1474 (7th
Cir. 1992) (citing Anderson v. Harless, 459 U.S. 4, 6 (1982)
(per curiam)). This requirement advances comity by
allowing state courts the first opportunity to correct
errors in the state court system. No magic formula exists
for presenting a federal constitutional claim, nor do
we “require a hypertechnical congruence between the
claims made in the federal and state courts.” Anderson
v. Benik, 471 F.3d 811, 814-15 (7th Cir. 2006). The factual
and legal substance of the habeas petition must be the
same as what was raised in the state. Several factors
assist us in this inquiry: whether the petitioner (1) relied
on pertinent federal cases employing constitutional
analysis; (2) relied on state cases applying constitu-
tional analysis to a similar factual situation; (3) asserted
the claims in terms particular to a specific constitutional
right; or (4) alleged a pattern of facts well within the
mainstream of constitutional litigation. Verdin, 972 F.2d
at 1473-74.
Nos. 12-1559 & 12-2177                                   13

  At the outset, the state acknowledges that Serrano
satisfied this requirement. Unlike Villanueva, Serrano
alerted the state court to the federal constitutional di-
mensions of his claim by citing Seventh Circuit cases
applying Santobello in his initial petition for post-convic-
tion relief. And despite the states protestations other-
wise, Villanueva also presented the same constitutional
claim in state court notwithstanding his citation to dif-
ferent authority. Villanueva relied primarily on
Whitfield, which applied a constitutional analysis to a
factual situation similar to Santobello. In fact, Whitfield
heavily cited Santobello and other federal cases (both
Supreme Court and the Seventh Circuit) finding
due process violations in the government’s failure
to adhere to its end of a plea agreement. 840 N.E.2d
at 666-70 (citing various federal cases). The Illinois Su-
preme Court has itself recognized that Whitfield “was
rooted in the United States Supreme Court’s decision
in Santobello v. New York.” Morris, 925 N.E.2d at 1076.
  The state unfairly suggests Villanueva relied on
Whitfield to argue only that the court inadequately ad-
monished him under Illinois Supreme Court Rule 402.
This argument does not give effect to Villanueva’s
repeated references to Whitfield or the relationship
between Whitfield and Santobello. Nor does it fairly read
the complaint, another one of the relevant factors.
Villanueva used language specific to the type of due
process constitutional claim he raises: he pled guilty “in
exchange for a ‘SPECIFIC’ sentence of 25 years” and was
“denied the ‘BENEFIT OF HIS BARGAIN.’ ” (emphases
14                                  Nos. 12-1559 & 12-2177

in original). Thus, Villanueva’s reliance on Whitfield
offers plenty to alert the state court to the federal nature
of his claims. Anderson, 471 F.3d at 814-15; see also Baldwin
v. Reese, 541 U.S. 27, 32 (2004) (noting state court litigant
can satisfy presentment requirement by citing “a case
deciding such a claim on federal grounds”); Verdin,
972 F.2d at 1475 (noting if “state cases rest on federal
constitutional grounds, they must be accepted on that
basis by the habeas court”).
  The state also asserts Villanueva “chang[ed] his con-
stitutional theory” on remand from the Illinois Supreme
Court because he argued that “his petition also supports
a Santobello claim independent of . . . Whitfield.” How-
ever “ ‘a mere variation in legal theory’ does not auto-
matically lead to a finding of failure to exhaust.” Sweeney
v. Carter, 361 F.3d 327, 333 (7th Cir. 2004). A petitioner
may thus “reformulate [his] claims so long as the
substance of the claim remains the same.” Id. That is
what Villanueva did. Throughout the entire course of
the litigation, he has argued that he did not receive
the benefit of his plea bargain in violation of the Due
Process Clause. He reformulated his claim from
Whitfield to Santobello after Morris, which blocked his use
of Santobello. Whitfield subsumed Santobello and had
offered a path of lesser resistance toward obtaining
relief. Villanueva had no reason to specifically argue
Santobello (as opposed to or in addition to arguing
Whitfield) until the Morris decision removed Whitfield
from his quiver of arguments.
Nos. 12-1559 & 12-2177                                    15

  2.   The State Courts Did Not Reject the Santobello
       Claims on Independent and Adequate State
       Law Grounds
  Rooted in the constitutional prohibition on issuing
advisory opinions and the federalism principles of comity
and respect for state law, federal courts generally cannot
review the merits of constitutional claims decided on
other state law grounds. Such grounds must be both
independent from the federal constitutional claim and
adequate such that they will not completely prohibit
federal court review of federal claims. The state argues
that Morris’s labeling of Whitfield as a new rule without
retroactive application presented an independent and
adequate state procedural rule that prevents federal
review.
   We must evaluate petitioners’ claims as Santobello
claims, not Whitfield claims. It is true that the state
courts’ dismissal of the Whitfield claims as non-retroac-
tive under Morris would operate as an independent
and adequate resolution under state law. The claims
that state courts may entertain on petitions for
post-conviction relief are squarely a matter of state law,
and the Illinois courts are free to define the scope of their
post-conviction proceedings. See People v. Flowers, 561
N.E.2d 674, 681-83 (Ill. 1990) (noting Teague v. Lane ad-
dressed questions under federal law but incorporating
its test into Illinois law for persuasive reasons).
  As we just discussed, however, petitioners presented
Santobello claims in addition to Whitfield claims. The
state courts did not analyze these two claims separately.
16                                    Nos. 12-1559 & 12-2177

Instead, they concluded that “Whitfield relied on
Santobello” and the “defendants cannot avoid Morris by
relying on Santobello instead of Whitfield.” 2 Whitfield
and Santobello have similar bases. But Morris’s
non-retroactivity determination can apply only to
Whitfield—while Whitfield came down after the petition-
ers’ sentences, Santobello has been on the books for de-
cades. Morris disposed of petitioners’ Whitfield claim,
but Whitfield alone was the new rule. Disposing of
that claim did not absolve the state courts of re-
sponsibility to consider and rule on the Santobello
claim. And when state courts do not address fed-
eral issues, federal courts are free to consider them—
unshackled from the strictures of AEDPA deference—
in habeas petitions.


C. Even Under De Novo Review, Petitioners Are Not
   Entitled to Habeas Relief Under Santobello
  We apply deferential review under AEDPA only when
the state courts have offered something to which we
can defer. As we just discussed, the state court did not
adjudicate the merits of the Santobello claims, so we are
free to dispose of the petition through de novo review
“as justice and law require.” Canaan v. McBride, 395
F.3d 376, 383 (7th Cir. 2005).


2
  This language came from Villanueva’s case. The state court
in Serrano’s case concluded similarly, explaining that Serrano’s
reliance on Santobello “does not avoid the effect of Whitfield,
and, in turn, its prospective application under Morris.”
Nos. 12-1559 & 12-2177                                       17

   Under Santobello, “when a plea rests in any significant
degree on a promise or agreement of the prosecutor, so
that it can be said to be part of the inducement or con-
sideration, such promise must be fulfilled.” 404 U.S. at
262. Thus, to obtain relief under Santobello, the prosecu-
tion must make a promise that induces the defendant to
plead guilty. This promise need not always be explicit, see
United States v. Bowler, 585 F.2d 851, 853-54 (7th Cir. 1978)
(finding implicit promise in “ambiguous statement” by
government in written plea agreement), but it must
nevertheless be made. As United States v. Jordan ex-
plained, “Santobello [does not] place an affirmative duty
on the prosecution to discuss all possible ramifications
of a defendant’s guilty plea. Rather, [it] prohibit[s]
false representations and mandates compliance with
promises made.” 870 F.2d 1310, 1316 (7th Cir. 1989).3
  Petitioners’ claims fail because they offer nothing sug-
gesting the state promised that the MSR term would not
attach to the end of their sentence by operation of stat-


3
  Both the district courts in this case and the state relied
heavily on Lockhart v. Chandler, 446 F.3d 721 (7th Cir. 2006).
Lockhart was a failure-to-admonish case, a claim petitioners
do not raise here. It denied a habeas petition because “no
Supreme Court precedent [exists] for the proposition that a
defendant must be advised of a term of MSR at the time he
attempts to enter a plea of guilty.” Id. at 724. Here, we are
determining whether the prosecutor promised MSR would
not apply to petitioners’ prison sentence, not whether the trial
court informed them it would. The inquiries are distinct.
Lockhart also applied AEDPA deference inapplicable here.
18                                     Nos. 12-1559 & 12-2177

ute. They rely solely on the procedural posture of the case
and argue that their petitions for relief allege they were
promised a specific sentence consisting only of a
term of imprisonment. However, the transcripts offer
no evidence of a promise, implicit or explicit, to waive
the MSR term. In fact, these transcripts support just the
opposite conclusion that the plea agreement did con-
template—even if it did not explicitly say so—the normal
statutory term of MSR. Immediately before Serrano
pled guilty, he was told his conviction is “subject to
what’s called mandatory supervised release for a
period after [his] release from the penitentiary.” 4
Villanueva pled guilty after the same admonition,
which informed him “[f]irst degree murder carries . . .
a period of mandatory supervised release of 3 years.”
Although Illinois Supreme Court Rule 402 mandates
these admonitions and the sentencing judge must
describe the possible sentence regardless of what the
defendant and prosecutor have agreed upon, the
reference to “mandatory” supervised release suggests
that MSR is part of the sentence. Characterizing



4
  Petitioners attempt to characterize this statement as
describing a “possible” penalty. Both judges use that phrase
but only in the context of describing the term of imprison-
ment. For example, Serrano’s judge explained, “a Class X
felony . . . is subject to a possible penalty of incarceration in
the penitentiary for a determinant period of time between 6
and 30 years, and a fine of up to $25,000 or both, and it’s also
subject to [MSR].” The MSR discussion forms a separate
clause from the part of the sentence containing “possible.”
Nos. 12-1559 & 12-2177                                         19

“mandatory supervised release” as a “possible penalty” is
incongruent.
  Tellingly, neither petitioner reached out to the indi-
viduals most likely to know the content of the plea nego-
tiations: Serrano’s or Villanueva’s defense counsel or
the assistant state’s attorneys that prosecuted them.
Because no written agreement exists and the actual
plea is not evident from the transcript, the lawyers
that negotiated this bargain are the best evidence we
could have of its composition.
  This failure leaves us with Serrano’s and Villanueva’s
bare assertions in their state and federal petitions that
“they pled guilty in exchange for” their specific sen-
tences. They received these promises: Serrano was sen-
tenced to fourteen years out of a possible thirty and
Villanueva to twenty-five out of a possible sixty. To
succeed on their Santobello claims they must prove the
government also promised that the MSR term would not
attach. They present nothing to this end. Instead, Serrano
and Villanueva were confronted with a range of sen-
tences for their crimes: a minimum and maximum
number of years as well as the mandatory term of super-
vised release. The government promised to respectively
cut sixteen and thirty-five years off Serrano’s and
Villanueva’s maximum sentences “in exchange for” their
guilty plea. Petitioners do not assert that the government
also promised to prevent the MSR term from attaching.5


5
  Central to the petitioners’ claim is the implicit assertion that
their exchange with the state—reduced sentences in exchange
                                                    (continued...)
20                                    Nos. 12-1559 & 12-2177

  To be sure, several old cases in which we granted the
writ are similar to this case. These cases mention the
defendants’ bargain with the state, but we were more
concerned about the deficiencies in the admonitions,


5
  (...continued)
for guilty pleas—comprises the exclusive terms of their sen-
tences. No other terms can exist (like MSR). Some support
for this argument exists in traditional contract law. If a car
seller says “I’ll give you this car for $10,000” and the buyer
gives him the cash, the seller cannot later demand the buyer
trade in his used car. Petitioners suggest that the state said
“twenty-five years for a guilty plea,” Villanueva agreed, and
the state later tried to add a term of MSR. But that is not
what happened. The starting points for negotiations were
the two required components of petitioners’ sentences: a
sentence (which had minimum and maximum terms) and a
term of MSR. Petitioners then negotiated away part of the
possible prison time, but did not negotiate regarding the
other term. Returning to the car example, imagine the seller’s
policy required trade-ins and the car’s price tag said “$10,000
plus trade in.” If the buyer said, “$10,000 is a lot, how about
$5,000,” the buyer could not argue that the agreement
precludes requiring the trade-in—the starting point for the
negotiation was a price plus a trade-in, and the parties only
negotiated with respect to one term. That is what happened
here—the starting point was prison time plus MSR, and the
negotiation concerned only the prison term. Now, had the
state tried to impose something that was not mandatorily
part of petitioners’ sentences, like 1,000 hours of community
service, that would violate Santobello. Community service
was never a term of the sentence just like the first car ex-
ample where the trade-in was not part of the original deal.
Nos. 12-1559 & 12-2177                                     21

which in those cases made no mention of MSR. In each
case, the defendant ultimately pled guilty without any
mention of MSR from the sentencing judge. In United
States ex rel. Ferris v. Finkbeiner, the state court “misin-
formed” the defendant by telling him “I am sure if you
serve the full ten years that would be the end of it” in
response to the defendant’s inquiry about MSR. 551
F.2d 185, 186 (7th Cir. 1977). In United States ex rel. Miller
v. McGinnis, we granted the writ because “the trial
court failed to inform Miller of the three year MSR
term” among other considerations including that the
defendant tried to withdraw his plea days later. 774
F.2d 819, 823 (7th Cir. 1985). Finally, in United States
ex rel. Baker v. Finkbeiner, the petitioner argued that, in
the absence of an MSR admonition, “his guilty plea was
involuntary because he did not know of the mandatory
parole term at the time he agreed to the plea.” 551 F.2d
180, 182 (7th Cir. 1977).
  These cases share a common thread absent here. Those
petitioners argued their pleas were involuntary because
they were not told and did not know MSR was a conse-
quence of their plea. Brady v. United States requires that
defendants know the “direct consequences” of their
pleas before they can enter them voluntarily. 397 U.S.
742, 755 (1970). Thus, in those cases we concluded the
petitioners’ pleas were involuntary because they were
unaware that the MSR term was a consequence (al-
though failure-to-admonish claims might fail since Con-
gress passed AEDPA and our holding in Lockhart, 446
F.3d at 724). Serrano and Villanueva, on the other
hand, acknowledge they understood this consequence.
See also Ill. Sup. Ct. R. 402. Instead, they argue that the
22                                 Nos. 12-1559 & 12-2177

state reneged on its promise not to impose the term
under Santobello. The distinction is subtle and might
not matter in many cases—if the defendant thought
his deal would not include a term, he could not know
that it would be a consequence of his plea. But the dis-
tinction is important in these cases because it controls
what the petitioners must show to prove their claims.
The parties in the cited cases proved they did not
think MSR was part of their plea through the transcripts.
Petitioners’ Santobello broken-promise claims, on the
other hand, turn on what was in the agreement. Their
claims fail because they cannot show the agreements
precluded MSR.


                    III. Conclusion
  Serrano and Villanueva filed their petitions in federal
court too long after their judgments became final, and
for this reason we A FFIRM the district courts’ denial of
their petitions. Notwithstanding, their claims would
have failed on the merits.




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