United States Court of Appeals
         For the Eighth Circuit
     ___________________________

             No. 11-2943
     ___________________________

         United States of America

          lllllllllllllllllllll Appellee

                       v.

           Carlous Lindell Daily

        lllllllllllllllllllll Appellant
     ___________________________

             No. 11-3196
     ___________________________

         United States of America

         lllllllllllllllllllll Appellant

                       v.

           Carlous Lindell Daily

          lllllllllllllllllllll Appellee
                ____________

  Appeal from United States District Court
       for the District of Minnesota
              ____________
                          Submitted: September 19, 2012
                             Filed: January 15, 2013
                                 ____________

Before SMITH, ARNOLD, and COLLOTON, Circuit Judges.
                           ____________

ARNOLD, Circuit Judge.

      Carlous Daily appeals from the sentence that the district court1 imposed after
granting him relief from his previous sentence under 28 U.S.C. § 2255. The
government cross-appeals, asserting that relief was time-barred and that the district
court had no statutory power to resentence Mr. Daily. We affirm.

                                          I.
       A jury convicted Mr. Daily of conspiring to commit bank robbery, see
18 U.S.C. §§ 371, committing armed bank robbery, see 18 U.S.C. § 2113(a), (d), and
using a firearm during a crime of violence, see 18 U.S.C. §§ 924(c)(1). The court
then determined that Mr. Daily's Sentencing Guidelines range was 444 months to life
and sentenced him to 444 months' imprisonment. After we affirmed the conviction
on direct appeal, see United States v. Daily, 488 F.3d 796 (8th Cir. 2007), Mr. Daily
filed a timely § 2255 motion, raising a number of claims. Although the district court
rejected the claims that Mr. Daily made and denied his request to supplement the
pleadings by adding an argument related to his sentencing range, the court sua sponte
noticed a separate error in the Sentencing Guidelines calculations and directed the
parties to show cause why Mr. Daily should not get relief for his counsel's ineffective
assistance in not discovering that error. After reviewing the parties' responses, the
district court decided that the original sentence had indeed been based on an



      1
      The Honorable John R. Tunheim, United States District Judge for the District
of Minnesota.

                                         -2-
erroneously calculated range that his counsel should have noticed and objected to,
and it resentenced Mr. Daily to 420 months in prison.

                                          II.
       Mr. Daily maintains that his new sentence is unreasonable because in fixing it
the district court gave too much weight to acquitted conduct, did not adequately
consider mitigating factors, and imposed a punishment that was "greater than
necessary" to accomplish the sentencing goals set out in 18 U.S.C. § 3553(a).2 But
our examination of the record reveals that the district court did not in fact consider
acquitted conduct, and, in any case, a court is not prohibited from doing so in
determining a sentence, see United States v. Whiting, 522 F.3d 845, 850 (8th Cir.
2008). Mr. Daily, moreover, does not point to any specific mitigating factors relevant
to sentencing that the court ignored. Finally, Mr. Daily has given us no reason to
believe that his sentence was "greater than necessary" to fulfill the goals outlined in
§ 3553(a), which the district court specifically adverted to in imposing the sentence.
See, e.g., United States v. Wohlman, 651 F.3d 878, 887 (8th Cir. 2011).

                                         III.
       The government, in its cross-appeal, raises no objection to the sentence that the
district court imposed. It maintains instead that any relief Mr. Daily would have
otherwise been entitled to was time-barred and that the district court had no authority
to revise Mr. Daily's sentence.

      First of all, the government characterizes the district court's order to show
cause as a § 2255 motion, and it maintains that the motion is untimely under
§ 2255(f). The infirmity in this argument is that the order was not a motion: It was
a means of alerting the parties that the court was sua sponte considering revising


      2
      In a pro se brief, Mr. Daily raises some further objections to his sentence,
which we reject as meritless.

                                          -3-
Mr. Daily's sentence on a ground that he did not raise. This contention is therefore
without merit.

       The dissent suggests that we should impose a time limit on when a district
court may notice a plain error in a habeas proceeding that is timely filed, but we see
no warrant in the applicable rules or statutes for doing so. There is, moreover, a
practical difficulty with doing so, because in many cases (including this one) there
would be no reliable way to determine when the court first "noticed" the error or
made its "motion," which presumably would be when it decided to consider a claim
sua sponte and not when it told the parties, if it ever did, that it was going to do so.
Perhaps devising a time limit on when a district court can notice an error in a habeas
proceeding is desirable, but that is a matter for an appropriate rule-making authority,
not this court.

       The government also contends that the district court had no power to notice a
matter sua sponte that Mr. Daily did not himself raise in his motion. But we have
held that Fed. R. Crim. P. 52, which allows a court to consider "plain error that affects
substantial rights ... even though it was not brought to the court's attention," provides
us with a basis for granting § 2255 relief on appeal on grounds that the petitioner did
not raise. See King v. United States, 595 F.3d 844, 854 (8th Cir. 2010); United States
v. Granados, 168 F.3d 343, 346 (8th Cir. 1999) (per curiam). Though the
government urges us to hold otherwise, we see no reason to doubt that Rule 52 gives
a district court the same power. In fact, Rule 12 of the Rules Governing § 2255
Proceedings specifically provides that "the Federal Rules of Criminal Procedure, to
the extent that they are not inconsistent with any statutory provisions or these rules,
may be applied to a proceeding under these rules." Since we see no inconsistency
between the § 2255 rules (or any statute) and Fed. R. Crim. P. 52, the district court
had the power to notice plain error sua sponte in the current proceeding and give
relief on it.



                                          -4-
       The government also directs our attention to 18 U.S.C. § 3582, which provides
that courts may not revise sentences unless, as relevant here, they are "expressly
permitted by statute" to do so. 18 U.S.C. § 3582(c)(1)(B). But here, the court had
statutory authority to modify a sentence that "was imposed in violation of the
Constitution ... of the United States," 28 U.S.C. § 2255, and it exercised that authority
to modify Mr. Daily's sentence when it concluded that it violated his Sixth
Amendment right to adequate representation.

                                           IV.
       Because the district court did not err in noticing the error in the original
calculation of Mr. Daily's sentence, and the government does not dispute that
Mr. Daily's counsel was ineffective in not calling the court's attention to the error or
that the error merited plain error relief, we affirm the judgment of the district court.

COLLOTON, Circuit Judge, concurring in part and dissenting in part.

       If Carlous Daily had sought to supplement his pending 28 U.S.C. § 2255
motion based on the same ground raised by the district court on the same date that the
district court raised it, then the district court would have been required to reject
Daily’s request as untimely. See 28 U.S.C. § 2255(f). Under the majority’s approach,
however, a district court may deny an untimely movant’s request to supplement but
then immediately grant relief sua sponte on the same ground. I disagree that a district
court has such authority to circumvent the statute of limitations, and I would reverse
the district court’s sua sponte modification of Daily’s sentence.

       Daily’s conviction became final when the Supreme Court denied certiorari on
his direct appeal on February 19, 2008. He filed a timely motion under § 2255 on
January 28, 2009. On October 6, 2009, after the one-year statute of limitations
expired, Daily moved for leave to supplement his § 2255 motion with a new claim.
The district court denied Daily’s motion to supplement and his § 2255 motion on

                                          -5-
April 23, 2010. At the same time, the district court ordered the parties to show cause
“why the Court should not find that Daily’s trial and appellate counsel were
ineffective in failing to challenge the guideline range used at sentencing.” The
government responded that the court lacked authority to resentence Daily on the
grounds suggested in the order to show cause. The district court, however,
resentenced Daily on August 11, 2011, reducing his term of imprisonment by twenty-
four months on the ground that Daily’s counsel was ineffective for failing to notice
an error in calculating the sentencing guideline range.

       Once a district court has imposed a term of imprisonment, the court’s authority
to modify the term is circumscribed by statute. 18 U.S.C. § 3582(c). The general rule
is that a court may not modify a sentence, but there is an exception “to the extent
otherwise expressly permitted by statute.” Id. § 3582(c)(1)(B).

       Section 2255 expressly permits some modifications of a sentence, but not any
finding that a term of imprisonment was “imposed in violation of the Constitution . . .
of the United States” will do. The statute allows that “[a] prisoner in custody . . . may
move the court which imposed the sentence to vacate, set aside or correct the
sentence.” 28 U.S.C. § 2255(a). The court shall then determine the issues and make
findings of fact and conclusions of law with respect to the motion. Id. § 2255(b).
There is a strict time limit for seeking relief: “A 1-year period of limitation shall
apply to a motion under this section.” Id. § 2255(f). Section 2255 thus does not
“expressly permit” a district court to modify a sentence more than one year after the
limitation period commences and without a motion by a prisoner.

       Although the text of § 2255 calls for a motion by a prisoner, two decisions of
this court have ordered relief under § 2255 sua sponte, without such a motion. King
v. United States, 595 F.3d 844, 854 (8th Cir. 2010); United States v. Granados,
168 F.3d 343, 345-46 (8th Cir. 1999) (per curiam). Accepting those decisions as
binding precedent, and even assuming the authority to order relief sua sponte extends

                                          -6-
to a district court, neither King nor Granados purports to eliminate the one-year
statute of limitations. One reasonably would expect such a dramatic assertion of
judicial authority to appear in an opinion that purports to exercise it, but neither
decision even mentions an issue of timing. Cf. Webster v. Fall, 266 U.S. 507, 511
(1924) (“Questions which merely lurk in the record, neither brought to the attention
of the court nor ruled upon, are not to be considered as having been so decided as to
constitute precedents.”). Even the district court did not rely on any authority
purportedly granted by King or Granados, recognizing instead that “there is scant
precedent for this type of a change in sentence, a re-sentencing so long after the fact.”
R. Doc. 301, Tr. of Mot. Hr’g 28 (Aug. 11, 2011).

       In deference to the law’s important interest in the finality of judgments, and to
the intent of Congress clearly reflected in § 2255(f), any judicially-created authority
of a district court to grant relief sua sponte under § 2255 should be limited to grounds
raised by the court within the one-year limitation period. The majority rejects the
government’s characterization of the district court’s order to show cause as a “habeas
motion” that is subject to the statute of limitations, ante, at 3-4, but the government
presumably drew on the district court’s own words: “I’m going to grant the habeas
motion finding ineffective assistance of counsel.” Tr. of Mot. Hr’g at 27. If this
court’s assertion of authority to grant relief under § 2255 without a motion by the
prisoner now also means that a district court may act without regard to the one-year
period of limitation that applies to motions, then there is all the more reason to
reconsider King and Granados and return to the textual requirement of a motion. Cf.
United States v. Diaz-Clark, 292 F.3d 1310, 1319 (11th Cir. 2002) (“[T]here exists
no ‘inherent authority’ for a district court to modify a sentence.”).

       The court, having established authority for a district court to modify a sentence
in a circumstance that is not “expressly permitted by statute,” 18 U.S.C. § 3582(c),
ironically suggests that a time limit on this judicially-created authority should be set
only by “an appropriate rule-making authority, not this court.” Ante, at 5. The one-

                                          -7-
year time limit, however, is already set by an appropriate rule-making authority:
Congress. See 28 U.S.C. § 2255(f). There is, of course, a reliable way to determine
when the court first made its self-described “habeas motion.” It did so at the time
when it gave notice to the parties in its order to show cause—a date that in this case
was well beyond the one-year statute of limitations. We ought not fret about any
“practical difficulty” that might arise from a hypothetical scenario in which a district
court thinks of a claim before the one year expires but fails to make a timely motion.
Prisoners encounter the same difficulty, but timeliness is determined based on the
date of filing, not on the date of rumination or realization. The effect of affirming the
district court’s action here is to dispense with a statute of limitations established by
statute: If a district court notices an error two years after the statute of limitations
begins to run, then it is free to grant relief without regard to the one-year statute of
limitations. But if the statutory time limit is to be eliminated, then that surely is a
matter for an appropriate legislative body, not this court.

       The ground on which the district court granted relief was not raised by the
district court or by Daily within the one-year limitations period established by
§ 2255(f). It does not relate back to any ground that was timely raised in Daily’s
original pleading. See Fed. R. Civ. P. 15(c)(1); Mayle v. Felix, 545 U.S. 644, 662-64
(2005). The district court thus lacked authority to modify Daily’s term of
imprisonment. I would reverse the district court’s grant of relief, and I concur in the
court’s decision to affirm all other aspects of the district court’s decision.
                        ______________________________




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