In the
United States Court of Appeals
For the Seventh Circuit

No. 00-1301

Horacio U. Montenegro,

Petitioner-Appellant,

v.

United States of America,

Respondent-Appellee.



Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 98-C-195--Rudolph T. Randa, Judge.


Argued November 1, 2000--Decided April 16,
2001




  Before Cudahy, Coffey, and Easterbrook,
Circuit Judges.

  Cudahy, Circuit Judge. Horacio
Montenegro appeals a dismissal of his 28
U.S.C. sec. 2255 motion for failure to
file within the one-year limitations
period. We affirm.

  On October 24, 1995, a grand jury
returned a one-count indictment against
Horacio Montenegro and two others,
charging them with conspiracy to
distribute and possession with the intent
to distribute more than 500 grams of
cocaine, in violation of 21 U.S.C.
sec.sec. 841(a)(1) and 846 and 18 U.S.C.
sec. 2. Pursuant to a plea agreement with
the government, Montenegro entered a plea
of guilty, and was sentenced to 90 months
imprisonment. The district court entered
judgment on the conviction and sentence
on April 19, 1996. On March 2, 1998,
Montenegro filed a motion pursuant to 28
U.S.C. sec. 2255, which the district
court dismissed on June 30, 1998. The
court held that because Montenegro filed
this motion 22 months after his
conviction and sentence became final, it
was barred by the one-year statute of
limitations embodied in sec. 2255. The
Antiterrorism and Effective Death Penalty
Act of 1996 added a limitations period to
sec. 2255 motions, and required federal
prisoners who wished to appeal final
orders on sec. 2255 motions to obtain a
certificate of appealability from the
court of appeals. See 28 U.S.C. sec.sec.
2255, 2253. Following Montenegro’s
petition to this court, we granted him a
limited certificate of appealability on
the questions of when the one-year time
limit began to run and whether Montenegro
had filed his sec. 2255 motion within
that limit. Montenegro argued that the
limitations period began to run in mid-
1997, when he first discovered that his
appeal had not been filed. Finding the
record devoid of adequate information to
determine the merits of the appeal, this
court issued an order remanding the case
to the district court for an evidentiary
hearing on the issue of Montenegro’s
diligence./1

  The district court held an evidentiary
hearing on December 16, 1999, at which
Montenegro called two witnesses: his
trial counsel, Nikola Kostich, and
himself. Kostich testified that he did
not recall Montenegro’s instructing him
to file a notice of appeal, and testified
that, if he had been instructed to file
an appeal, he would have done so. Kostich
also testified that, based on his
practice and routine, the lack of notes
or documents in his file about an appeal
meant that he had not been directed to
file one. Montenegro testified that he
instructed Kostich to file a notice of
appeal immediately after his sentencing.
Montenegro also testified that while he
was incarcerated following his
sentencing, he asked an inmate to write a
letter to Kostich requesting transcripts
of his plea and sentencing; he testified
that he did not dictate the contents of
the letter because he can speak little
English. The letter was not intended to
inquire about an appeal, and it did not
do so. In response to the letter, Kostich
sent Montenegro a copy of the docket
sheet. Montenegro was later transferred
to another prison about one year after
his sentencing. There, several inmates
informed Montenegro that appeals could
take a year or longer, and so Montenegro
simply waited to hear the outcome of his
appeal. He did not determine that an
appeal had not been filed until the
middle of 1997, and he did not file a
sec. 2255 motion until March 1998.

  Following the evidentiary hearing, the
district court decided that Montenegro
had not instructed his counsel to file a
notice of appeal, and that he had not
exercised due diligence in determining
that an appeal of his case had not been
filed. On the first issue, the court
reasoned that Kostich is an experienced
criminal defense attorney with an
excellent reputation, and thus credited
his testimony that, if someone instructs
him to file a notice of appeal, he will
do so. It also reasoned that it would not
"make sense" for Kostich not to appeal a
case and thereby lose a paying client. As
to the issue whether Montenegro exercised
due diligence, the district court
determined that he did not. The only
contact Montenegro made with his lawyer
was through the September 2, 1996 letter,
in which he did not inquire about the
status of his appeal. The court also
cited Davenport v. A.C. Davenport & Son
Co. in concluding that lack of
sophistication is irrelevant to due
diligence inquiries. 903 F.2d 1139 (7th
Cir. 1990), overruled on other grounds by
Short v. Belleville Shoe Mfg. Co., 908
F.2d 1385 (7th Cir. 1990). The court
concluded that Montenegro was not
diligent because: 1) when he received a
docket sheet in response to his request
for a transcript, that should have been a
red flag that the appeal was not being
processed; 2) he did not call or write to
Kostich or the court to inquire about his
appeal; 3) any language barrier would not
have prevented Kostich from determining
from the docket sheet--on which there was
no record of an appeal--that an appeal
had not been filed, particularly because
someone assisted him in translating the
docket sheet; and 4) the 9/2/96 letter
did not inquire about the status of an
appeal. Montenegro filed a notice of
appeal and a motion for issuance of a
certificate of appealability. The
district court issued a certificate of
appealability.

I.   Ineffective Assistance of Counsel

  Although this court remanded this case
for an evidentiary hearing solely on the
issue of Montenegro’s diligence, the
district court also made a finding that
Kostich had not provided ineffective
assistance of counsel, and that is the
issue on which the district court
certified the appeal. Montenegro argues
that Kostich failed to provide effective
assistance of counsel in violation of the
Sixth Amendment by failing to file an
appeal, failing to consult with
Montenegro about the merits of his appeal
and failing to consult with Montenegro
about how to obtain a transcript of his
plea and sentencing proceedings. To
prevail on an ineffective assistance of
counsel claim, Montenegro must show that
his attorney’s performance "fell below an
objective standard of reasonableness" and
that the deficient performance caused him
prejudice. See Strickland v. Washington,
466 U.S. 668, 687-88 (1984); United
States v. Boyles, 57 F.3d 535, 550 (7th
Cir. 1995). Failure to file an appeal
when one has been requested constitutes a
per se violation. See Castellanos v.
United States, 26 F.3d 717, 718 (7th Cir.
1994). The district court found that
Montenegro did not ask Kostich to file an
appeal, and that therefore Kostich did
not render ineffective assistance by not
filing one. The court reasoned that
Kostich was an experienced criminal
defense attorney with an excellent
reputation, and it had no reason to doubt
Kostich’s testimony that--if someone
instructs him to file a notice of appeal-
-he will do so. Second, the court
reasoned, it made no sense that Kostich,
if asked to appeal, would reject a paying
client. Third, if there had been a
discussion, there would have been some
record of it in Kostich’s file.

  The court concluded that Montenegro did
request transcripts in a letter sent to
Kostich, and that Kostich neither sent
the transcripts nor told Montenegro how
he might obtain them. It also concluded
that, because of the lack of notes in
Kostich’s file, there had been no
discussion of the possibility of appeal
between Kostich and Montenegro. We are
not satisfied that the court’s
evidentiary proceeding addressed all the
concerns of Montenegro’s ineffective
assistance claim, particularly in light
of the requirement that a criminal
defense attorney consult with his client
if there are any nonfrivolous grounds for
appeal. See Roe v. Flores-Ortega, 120
S.Ct. 1029, 1036 (2000). But we need not
go into this potentially contentious
issue, because Montenegro loses on the
grounds of timeliness.

II. Due Diligence and 28 U.S.C. sec. 2255
para.6(4)

  The parties have ignored the limits of
the district court’s certificate of
appealability, and made substantial
arguments on the due diligence issue./2
Further, this court remanded the case
specifically for consideration of
Montenegro’s due diligence--which was the
apparent focus of the district court’s
proceedings--and thus we will now address
that issue.

  Prior to the enactment of the
Antiterrorism and Effective Death Penalty
Act (AEDPA), there was no statute of
limitations for filing a sec. 2255
motion. Under the new law, a one-year
limitation period applies. The period
runs from the latest of four events:

(1) the date on which the judgment of
conviction becomes final;

(2) the date on which the impediment to
making a motion created by governmental
action in violation of the Constitution
or laws of the United States is removed,
if the movant was prevented from making a
motion by such governmental action;

(3) the date on which the right asserted
was initially recognized by the Supreme
Court and made retroactively applicable
to cases on collateral review; or

(4) the date on which the facts
supporting the claim or claims presented
could have been discovered through the
exercise of due diligence.

28 U.S.C. sec. 2255 para.6. Montenegro
argues that his claim is not time-barred
because the dates described in (3) and
(4) are within the one-year limitations
period. We shall first address his
argument under (4) that he could not have
discovered the facts supporting his claim
prior to March 1997. Whether Montenegro
could have discovered the facts earlier
depends on how "due diligence" is
defined.

  This court has been unable to find any
appellate decisions setting forth the
standard of review of a district court’s
decision concerning due diligence in the
context of sec. 2255. The government
argues that the appropriate standard of
review should be similar to the standard
applied to Rule 33 cases: abuse of
discretion. Rule 33 governs decisions on
motions for a new trial based on newly
discovered evidence, in which courts
apply an abuse of discretion standard of
review. See Fed. R. Crim. P. 33; United
States v. Woolfolk, 197 F.3d 900, 904-05
(7th Cir. 1999); United States v. Austin,
103 F.3d 606, 608-11 (7th Cir. 1996). In
support of using this analogy, the
government notes the "high degree of
similarity between sec. 2255 and Rule
33," in that both have a limitation
period, affect the liberty interests of
the defendant and require a showing that
the evidence could not have been
discovered sooner through due diligence.
But the analogy is incomplete. Rule 33
provides that the court, on motion of a
defendant, may grant a new trial to that
defendant "if the interests of justice so
require." The decision is therefore
committed to the "sound discretion of the
trial judge." Woolfolk, 197 F.3d at 904.
By contrast, sec. 2255 provides that the
limitations period will run from the
latest of four specified events. Nothing
in the language implies discretion
committed to the trial judge. Rather, it
involves a finding of fact--whether due
diligence was exercised--followed by a
determination that the factual scenario
satisfies the strict confines of the
statute. Thus, clear error review is more
appropriate.

  The better analogy for a due diligence
finding on a sec. 2255 motion is to Rule
52(a) of the Federal Rules of Civil
Procedure, which "assigns to the trial
judge the responsibility of determining
not only the historical events that are
relevant to how the case should be
decided but also the legal significance
of those events." See Mucha v. King, 792
F.2d 602, 605 (7th Cir. 1986). This means
that legal characterizations, such as
negligence, possession, ratification,
principal place of business and the like
are facts to which the clearly erroneous
standard applies. See id. "Due diligence"
is one such characterization, and we
therefore review the district court’s
decision on this issue for clear error.
It is undisputed that, if Montenegro used
due diligence to discover Kostich’s
failure to file the appeal, he timely
filed his sec. 2255 motion. This has
nothing to do with discretion, or the
abuse of it.

  Montenegro argues that the Supreme
Court’s interpretation of "due diligence"
in 28 U.S.C. sec. 2254(e)(2)(A)(ii)
should apply to an interpretation of "due
diligence" in sec. 2255. See Williams v.
Taylor, 120 S.Ct. 1479, 1490 (2000).
Williams, a sec. 2254 case, held that
"due diligence" is considered "in light
of the information available at the time"
and that it does not depend on whether
the prisoner’s efforts would have been
successful at uncovering the underlying
facts. See 120 S.Ct. at 1490. The analogy
to sec. 2254 is probably appropriate,
even though the relevant sec. 2254
provision applies to a determination
whether an applicant is excused from a
failure to develop the factual basis for
the claim in state court proceedings. See
28 U.S.C. sec. 2254(e)(2). But we need
not decide that here, because even under
Williams--which hints that a prisoner’s
special circumstances may have an impact
on the due diligence inquiry--the
district court’s due diligence finding
would stand. As we conclude below,
Montenegro failed to meet even the most
lenient standard of diligence.

  In Wims v. United States the Second
Circuit addressed a case similar to
Montenegro’s, and concluded that "[t]he
proper task in a case such as this one is
to determine when a duly diligent person
in petitioner’s circumstances would have
discovered that no appeal had been
filed." 225 F.3d 186, 190 (2d Cir. 2000).
Thus, the court held, an evaluation of
whether due diligence was exercised must
take into account the conditions of
confinement and the reality of the prison
system. See id. at 191 (citing Easterwood
v. Champion, 213 F.3d 1321 (10th Cir.
2000)). We agree with the Second Circuit;
a due diligence analysis under sec. 2255
para.6(4) requires consideration of a
prisoner’s individual circumstances.
Thus, we reject the reliance by both the
district court and the government on
Davenport v. A.C. Davenport & Sons Co.,
903 F.2d 1139 (7th Cir. 1990). First,
Davenport addressed the issue whether the
statute of limitations should be
equitably tolled, which is a wholly
different inquiry from whether the
defendant in a habeas proceeding fits
within the sec. 2255 para.6(4) exception
to the one-year statute of limitations.
We discuss the issue of equitable tolling
in Section IV of this opinion. For now,
it is sufficient to say that Davenport, a
securities fraud case in which the
defendant sought equitable tolling, does
nothing to assist our evaluation of a
habeas petitioner’s diligence under sec.
2255 para.6(4).

  Montenegro next argues that his lack of
sophistication should support a finding
that he exercised due diligence. This
argument places Davenport (cited by the
government) at odds with two state court
cases (cited by Montenegro)--and we
hardly need to address a conflict between
a distinguishable case and a non-
precedential case. Neither is relevant
here. The government argues that, under
Davenport, Montenegro’s lack of
sophistication is irrelevant to the due
diligence inquiry. Montenegro argues that
Davenport is distinguishable because it
is a securities case and because the
plaintiff was represented by counsel
throughout the relevant securities
transaction. He is correct. "Due
diligence" in the securities regulation
context is a far cry from "due diligence"
in a criminal procedure context. We need
not reach the lack of sophistication
issue, however, because--even taking
Montenegro’s lack of sophistication into
account--we find that he did not exercise
due diligence. We need say only that it
is possible, under some circumstances,
that lack of sophistication could become
part of a due diligence analysis, because
the limitations with which a prisoner is
faced might influence how quickly facts
could have been discovered. See Wims, 225
F.3d at 190-91. But the facts of the case
before us indicate that the district
court could reasonably have concluded
that Montenegro did not exercise due
diligence, regardless of the standard of
review or the level of deference due to
the district court. That an appeal had
not been filed was a matter of public
record, "which reasonable diligence could
have unearthed." Owens v. Boyd, 235 F.3d
356, 360 (7th Cir. 2000). About six
months after his conviction and sentence
were final, Montenegro had the docket
sheet that revealed that an appeal in his
case had not been filed, and he never
asked Kostich about the appeal. On the
basis of these facts, the district court
did find that, even with the language
barrier and other difficulties faced by
Montenegro, due diligence would have
revealed that an appeal had not been
filed. We agree.

III. Flores-Ortega and 28 U.S.C. sec. 2255
para.6(3)

  Montenegro next argues that his motion
is timely under sec. 2255 para.6(3)
because a right newly recognized by the
Supreme Court is retroactively applicable
to his case on collateral review. Section
2255 para.6(3) provides that the one-year
limitation period will begin running on
"the date on which the right asserted was
initially recognized by the Supreme
Court, if that right has been newly
recognized by the Supreme Court and made
retroactively applicable to cases on
collateral review." Montenegro bases his
argument on the Supreme Court’s holding
in Roe v. Flores-Ortega, 528 U.S. 470
(2000). There, the Court held that
defendants’ counsel have "a
constitutionally-imposed duty to consult
with the defendant about an appeal when
there is reason to think either (1) that
a rational defendant would want to appeal
(for example, because there are
nonfrivolous grounds for appeal), or (2)
that this particular defendant reasonably
demonstrated to counsel that he was
interested in appealing." Id. at 480. The
government attempts to play down the
impact of Flores-Ortega by arguing that
that decision merely provides instruction
on the application of the well-
established Strickland test to a
particular fact situation. To prevail on
an ineffective assistance claim based on
counsel’s failure to file a notice of
appeal, a defendant must satisfy the
familiar test of Strickland v.
Washington, 466 U.S. 668, 104 S.Ct. 2052
(1984). Under Strickland, the defendant
must first demonstrate that his counsel’s
performance was deficient by showing that
it was unreasonable under prevailing
professional norms. See id. at 688.

  It is neither necessary nor appropriate
for us to decide at this time whether the
portion of Flores-Ortega on which
Montenegro relies establishes a "newly
recognized" rule of constitutional law,
because under sec. 2255 para.6(3) the
decision whether a rule (if new) should
be applied on collateral attack is one to
be made by the Supreme Court itself.
Section 2255 para.6(3) is in this respect
identical to 28 U.S.C. sec. 2244(b)
(2)(A), which allows the filing of a
second or successive collateral attack
only if a new right has been "made
retroactive to cases on collateral review
by the Supreme Court." We have held that
for purposes of sec. 2244(b)(2)(A), the
retroactivity decision must be made by
the Supreme Court, rather than by courts
of appeals. See Talbott v. Indiana, 226
F.3d 866, 867 (7th Cir. 2000); Bennett v.
United States, 119 F.3d 470 (7th Cir.
1997). Contra West v. Vaughn, 204 F.3d
53, 59-63 (3d Cir. 2000). See also Taylor
v. Cain, 218 F.3d 744 (5th Cir.) (mem.),
cert. granted, 121 S.Ct. 654 (2000).
Unless and until the Supreme Court itself
declares that Flores-Ortega not only
establishes a new rule but also that this
rule applies retroactively on collateral
review, Montenegro cannot take advantage
of sec. 2255 para.6(3) to obtain
additional time for initiating a
collateral attack.

IV.   Equitable Tolling

  Because sec. 2255’s tolling period is
procedural, not jurisdictional, the
period may be equitably tolled. See
United States v. Marcello, 212 F.3d 1005,
1010 (7th Cir. 2000). Equitable tolling
is "the judge-made doctrine, well-
established in federal common law, that
excuses a[n] [un]timely filing when the
plaintiff could not, despite the exercise
of reasonable diligence, have discovered
all the information he needed in order to
be able to file his claim on time."
Taliani v. Chrans, 189 F.3d 597, 597 (7th
Cir. 1999). In Taliani, we noted that "it
is unclear what room remains for
importing the judge-made doctrine of
equitable tolling" into sec. 2244 claims,
given the express tolling provisions
incorporated in the statute. 189 F.3d at
598. The same goes for sec. 2255, and we
continue to decline to reach the issue,
since it is clear that Montenegro should
be denied relief under this doctrine as
well.

  Montenegro argues that the statute of
limitations should be equitably tolled
for him in light of the barriers he faced
in discovering the lack of effective
assistance of counsel. He argues that the
barriers he faced in learning that his
appeal had not been filed constitute
extraordinary circumstances--
circumstances of the kind that warrant
equitable tolling. These are the same
grounds that Montenegro hoped to use to
excuse his lack of due diligence: he
never got a response from Kostich to his
letter; he was unable to understand the
docket sheet Kostich mailed to him
because of the language barrier; he was
never consulted on the possibility of an
appeal; he had limited education and a
lack of knowledge of the United States
legal system; and he was being
transferred from one prison to another.
These do not constitute the kind of
extraordinary circumstances that justify
equitable tolling, which "is granted
sparingly. . . . Extraordinary
circumstances far beyond the litigant’s
control must have prevented timely
filing." Marcello, 212 F.3d at 1010 (7th
Cir. 2000). Montenegro’s circumstances do
not rise to this level. This is
particularly apparent in light of the
district court’s due diligence finding.

V. The (Un)availability of 28 U.S.C. sec.
2241

  Montenegro next argues that the district
court erred in failing to consider
whether his motion could be characterized
as a motion under 28 U.S.C. sec. 2241. He
argues that if sec. 2255 is an
ineffective remedy, the savings clause of
that provision allows a prisoner to seek
relief under sec. 2241. We first note
that this is the wrong forum for such an
argument: one seeking a writ of habeas
corpus must name his custodian as the
respondent, and Montenegro cannot do that
in this case because--as far as we can
tell--he is incarcerated in Sandstone,
Minnesota, not the Eastern District of
Wisconsin. Second, even if this were the
proper time and place, Montenegro’s
argument is misplaced. Failure to comply
with the requirements of the sec. 2255
statute of limitations is not what
Congress meant when it spoke of the
remedies being "inadequate or ineffective
to test the legality of his detention."
28 U.S.C. sec. 2255. The savings clause
is not intended to save prisoners from
the statutory restrictions delineated by
Congress. Montenegro relies heavily on In
re Davenport (a case distinct from the
Davenport case earlier cited) in which we
decided, inter alia, the issue whether a
federal prisoner can ever rely on 28
U.S.C. sec. 2241 to escape the bar that
the AEDPA places on successive motions
under 28 U.S.C. sec. 2255. 147 F.3d 605
(7th Cir. 1998). Davenport illustrates
precisely why Montenegro’s case is not
one that would warrant recourse to sec.
2241. In Davenport, a prisoner was
convicted of the use of a firearm in the
commission of a drug offense in violation
of 18 U.S.C. sec. 924(c). We affirmed the
conviction, and later affirmed a denial
of his sec. 2255 motion complaining of
ineffective assistance of counsel. See
Nichols v. United States, 28 F.3d 1216,
1994 WL 328296 (7th Cir. 1994) (mem.).
Afterwards, the Supreme Court held in
Bailey v. United States that "use" in the
statute under which Nichols was convicted
did not include mere possession. 516 U.S.
137 (1995). At the time Nichols brought
his direct and sec. 2255 appeals, the law
in this circuit was firmly settled that
"use" did indeed constitute possession
for the purpose of sec. 924(c). See
Davenport, 147 F.3d at 610. Nichols could
not use sec. 2255 to challenge his
conviction on a successive motion,
because Bailey did not change the law--it
merely clarified it. Thus, he could not
fit within one of the two requirements
for successive appeals under sec.
2255./3 We concluded that "[a] federal
prisoner should be permitted to seek
habeas corpus only if he had no
reasonable opportunity to obtain earlier
judicial correction of a fundamental
defect in his conviction or sentence
because the law changed after his first
2255 motion." 147 F.3d at 611.

  Even if Montenegro were complaining
about a fundamental defect in his
conviction or sentence, he has not been
denied the opportunity to challenge it
because of sec. 2255’s defects or because
of some change in the law following his
conviction. That section gave Montenegro
ample opportunity to challenge his
conviction; it is through his own lack of
diligence that he failed to take
advantage of that opportunity. It is
simple: Montenegro missed a statutory
deadline, and his claim could have been
heard on direct appeal. Davenport’s
safety net is not intended for defendants
who make procedural mistakes.

VI. Constitutionality of the sec. 2255
 Statute of Limitations
  Finally, Montenegro raises two
constitutional claims in hopes of
resurrecting his habeas petition. He
first argues that the government’s
interpretation of the due diligence
requirement under the sec. 2255 statute
of limitations violates the Due Process
Clause of the Fifth Amendment. Because we
have rejected the government’s narrow
interpretation of the due diligence
requirement under sec. 2255 para.4, this
is no longer an issue.

  Montenegro’s alternative constitutional
argument is that a time limit on the use
of sec. 2255 violates either the Due
Process Clause of the Fifth Amendment or
the Eighth Amendment if it forecloses
collateral relief by an innocent person.
This argument may encounter difficulties
under Herrera v. Collins, 506 U.S. 390
(1993), and Lindh v. Murphy, 96 F.3d 856,
867-68, 871-74 (7th Cir. 1996) (en banc),
rev’d on other grounds, 521 U.S. 320
(1997), though it draws some support from
dicta in decisions of other circuits
suggesting that claims of "actual
innocence" deserve special protection.
See Triestman v. United States, 124 F.3d
361, 379-80 (2d Cir. 1997); In re
Dorsainvil, 119 F.3d 245, 248 (3d Cir.
1997). Courts do not resolve
constitutional challenges to federal
statutes unless unavoidable, however, and
here resolution is avoidable.
  The sort of innocence for which the best
constitutional claim to collateral relief
would be available occurs when, even if
the trier of fact believed everything
charged in the indictment, these acts
just do not constitute a crime. See
Bousley v. United States, 523 U.S. 614
(1998); Davis v. United States, 417 U.S.
333 (1974). Montenegro does not make such
an argument, or anything close to it.
Instead he claims to be "innocent of the
sentence enhancement for gun possession"
because the evidence presented in support
of that enhancement consisted solely of
the testimony of his co-conspirator,
whose statements, according to
Montenegro, the judge should not have
believed. His claim, in other words,
concerns a supposed error in the
application of the Sentencing Guidelines,
and arguments of this sort generally are
not appropriate even for timely
collateral review. See Scott v. United
States, 997 F.2d 340 (7th Cir. 1993).
Given the long history of judicial
discretion over sentencing in non-capital
offenses--until the Sentencing Reform Act
of 1984 added 18 U.S.C. sec. 3742(a),
there was essentially no direct appellate
review of non-capital sentences, let
alone collateral review of them--there is
no plausible constitutional argument that
a prisoner must be given an indefinite
period to wage a collateral attack on his
sentence.

  Montenegro had "an unobstructed
procedural shot" and he missed the
target; nothing in the statute itself
made the remedy inadequate, and nothing
in the statute violated Montenegro’s
rights, constitutional or otherwise. See
Davenport, 147 F.3d at 609.

  For the foregoing reasons, we AFFIRM the
district court’s denial of Montenegro’s
motion.



/1 Section 2255 para.6(4) states that the time limit
begins running from "the date on which the facts
supporting the claim or claims presented could
have been discovered through the exercise of due
diligence."

/2 The specification of issues in a certificate of
appealability is non-jurisdictional. See Owens v.
Boyd, 235 F.3d 356, 358 (7th Cir. 2000); Young v.
United States, 124 F.3d 794, 798-99 (7th Cir.
1997).

/3 Recall that, under sec. 2255, a prisoner can
bring a successive motion only if it contains
newly discovered evidence of innocence or
involves a new rule of constitutional law made
retroactive to cases on collateral review by the
Supreme Court.
