Devin Seats v. MINDI NURSE, Warden

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 23-1279
DEVIN S EATS ,
Petitioner-Appellant,
v.
M INDI NURSE, Warden,
Respondent-Appellee.1
____________________
Appeal from the United States District Court for the
Southern District of Illinois.
No. 3:21-cv-01221 — Staci M. Yandle, Judge.
____________________
A RGUED NOVEMBER 13, 2024 — DECIDED S EPTEMBER 24, 2025
____________________
Before EASTERBROOK, P RYOR , and K OLAR , Circuit Judges.
K OLAR , Circuit Judge. Devin Seats shot a gun into a store
window, hitting a customer in the face and causing severe in-
jury. In 2012, Seats was tried in Illinois court, found guilty of
1 While this appeal was pending, Seats was transferred from the cus-
tody of Anthony Wills at Shawnee Correctional Center to the custody of
Mindi Nurse at Pontiac Correctional Center, who is substituted as the Ap-
pellee pursuant to Federal Rule of Appellate Procedure 43(c).

-- 1 of 15 --

2 No. 23-1279
three felonies, and sentenced to 20 years in prison. His pre-
sentence investigation report listed three prior felonies under
Illinois’s aggravated unlawful use of a weapon statute. After
the Illinois Supreme Court held the aggravated unlawful use
of a weapon statute unconstitutional, Seats sought to be re-
sentenced on the basis that his criminal history was inaccurate
in the 2012 sentencing because it included felonies under that
statute. Seats was unsuccessful in state court and he filed a
petition for habeas relief in federal court.
The district court dismissed Seats’s petition because he
filed it outside the statute of limitations. Seats relies on John-
son v. United States, 544 U.S. 295 (2005), to argue that the limi-
tations period should start from the date two of his unlawful
use of a weapon felonies were vacated, which would render
his claim timely. Because Seats forfeited that argument by not
making it in the district court and presents no argument that
requires us to reverse on plain error, we affirm the district
court’s dismissal of his petition.
I. Background
A. Seats’s Underlying Criminal Case
In late 2012, after a bench trial in Cook County Circuit
Court, Seats was convicted of three felonies—aggravated bat-
tery with a firearm, armed habitual criminal, and aggravated
discharge of a firearm. The pre-sentence investigation report
listed six prior felonies, including three convictions for aggra-
vated unlawful use of a weapon. During the sentencing hear-
ing, the judge referenced Seats’s “considerable criminal back-
ground” and noted that “[h]e’s been through the system be-
fore.” Seats was sentenced to 20 years, 12 years, and 10 years
in prison for the three respective felonies, with the sentences

-- 2 of 15 --

No. 23-1279 3
running concurrently. Seats was not sentenced pursuant to a
recidivism regime, i.e., there was no statutory requirement
that forced the sentencing judge to assign a particular range
of years because of a prior conviction.
Seats appealed his conviction, and the Illinois Appellate
Court affirmed in July 2015. Seats filed a petition for leave to
appeal, but the Illinois Supreme Court denied it in November
2015 and Seats’s conviction became final on February 24, 2016.
B. Changes in Illinois Law
Seats’s criminal appeal (and later post-conviction proceed-
ings) took place in the context of changes to Illinois’s aggra-
vated unlawful use of a weapon statute, codified at 720 ILCS
5/24-1.6(a)–(e). In 2013, the Illinois Supreme Court held that
the Class 4 felony in the aggravated unlawful use of a weapon
statute’s subsections (a)(1) and (a)(3)(A) constituted a “com-
prehensive ban” on possession and use of an operable firearm
outside of the home and therefore violated the Second
Amendment. People v. Aguilar, 2013 IL 112116, ¶¶ 21–22. Two
years later, in People v. Burns, the Illinois Supreme Court held
that subsections (a)(1) and (a)(3)(A) of the aggravated unlaw-
ful use of a weapon statute were facially unconstitutional, no
matter the “form” of the felony. 2015 IL 117387, ¶¶ 20, 32. This
holding applied to two of the aggravated unlawful use of a
weapon convictions that were included in Seats’s pre-sen-
tence investigation report.2
2 Seats’s pre-sentence investigation report listed three aggravated un-
lawful use of a weapon felonies—two from 2007 and one from 2005. The
2005 conviction was under a subsection of the statue that was not ruled
unconstitutional. At issue in this appeal are the two aggravated unlawful
use of a weapon convictions from 2007.

-- 3 of 15 --

4 No. 23-1279
In early 2016, the Illinois Appellate Court vacated a sen-
tence that was enhanced due to a defendant’s prior conviction
for aggravated unlawful use of a weapon and remanded the
case for resentencing. People v. Smith, 2016 IL App (2d) 130997,
¶¶ 18, 26. Four months later, the Illinois Supreme Court rein-
stated a defendant’s conviction for unlawful use of a weapon
by a felon even though the predicate felony was an aggra-
vated unlawful use of a weapon conviction. People v. McFad-
den, 2016 IL 117424, ¶¶ 15, 29–32, 37. The court held that if an
aggravated unlawful use of a weapon conviction had not been
previously vacated, it could serve as a predicate felony con-
viction for a status crime such as felon in possession. Id. ¶ 37.
Then, in 2018, the Illinois Supreme Court considered
whether a felony conviction for aggravated unlawful use of a
weapon, under a portion of the statute deemed unconstitu-
tional in Aguilar, could be used to find a father unfit. In re
N.G., 2018 IL 121939, ¶¶ 31–32. The Illinois Supreme Court
held that when a criminal statute is facially unconstitutional a
conviction under that statute is void—the formerly prohibited
conduct was “constitutionally immune from punishment”—
and cannot be used as a predicate felony for any purpose. Id.
¶¶ 36–39.
C. Post-conviction Relief
Seats sought post-conviction relief in Illinois state court.
He filed a pro se petition on December 22, 2016, arguing he
was entitled to a resentencing because the sentencing court
improperly considered his prior aggravated unlawful use of
a weapon felonies and that statute had been found unconsti-
tutional in People v. Aguilar, 2013 IL 112116. The trial court de-
nied his petition and Seats timely appealed. While the appeal
of his petition was pending, Seats moved to vacate the two

-- 4 of 15 --

No. 23-1279 5
2007 aggravated unlawful use of a weapon convictions and
they were vacated on November 1, 2019.
In the appeal of Seats’s petition for post-conviction relief,
the Illinois Appellate Court vacated Seats’s conviction for
armed habitual criminal because it relied on the vacated ag-
gravated unlawful use of a weapon convictions. People v.
Seats, 2020 IL App (1st) 170738-U, ¶ 14. But the court declined
to order a resentencing because it found that “any considera-
tion of the [vacated] convictions by the trial court did not re-
sult in a greater sentence.” Id. ¶ 17. The 2007 aggravated un-
lawful use of a weapon convictions were only two of Seats’s
six prior felonies and the sentencing judge did not specifically
refer to those convictions, instead mentioning generally
Seats’s “considerable criminal background.” Id. In reviewing
the sentencing transcript, the Illinois Appellate Court deter-
mined that the most important factors for the trial court in
fashioning Seats’s sentence were the amount of evidence
against him and the seriousness of his crime, not his criminal
history. Id. The court concluded that “the weight afforded the
previous convictions, if any, was insignificant,” so Seats’s pe-
tition was properly dismissed. Id. ¶ 18 (emphasis added). The
Illinois Supreme Court denied Seats’s petition for leave to ap-
peal on November 18, 2020, and Seats did not file a petition
for certiorari to the United States Supreme Court.
This all brings us to the instant case, where, through coun-
sel, Seats filed a §2254 petition arguing that the Illinois Appel-
late Court’s decision not to remand his case for resentencing
was contrary to clearly established federal law, which re-
quired sentencing him based on accurate information. The pe-
tition fronted the issue of timeliness, asserting that the one-
year statute of limitations for Seats’s petition was triggered by

-- 5 of 15 --

6 No. 23-1279
the Illinois Appellate Court’s refusal to order a new sentenc-
ing hearing, because only after that decision was Seats’s sen-
tence truly final. Seats never relied on or even brought to the
district court’s attention, Johnson v. United States, a 2005 Su-
preme Court decision holding that a state court’s order vacat-
ing a conviction used to enhance a federal sentence is a “new
fact” that restarts the one-year limitations period in §2255.3
The state moved to dismiss based on timeliness, and the
district court granted the motion.4 The district court found
that Seats’s petition was untimely because, even accounting
for the tolled time when Seats’s petition for post-conviction
relief was pending in Illinois court, it was filed more than one
year after the underlying criminal judgment became final. As
we discuss in detail below, §2244(d)(1) sets a one-year limita-
tions period for state prisoners’ habeas petitions; that one year
is calculated from the latest of four possible triggering events,
as defined in subsections (d)(1)(A) through (d)(1)(D). See
Walker v. Cromwell, 140 F.4th 878, 884 (7th Cir. 2025). The dis-
trict court calculated the statute of limitations under
§2244(d)(1)(A), which sets the trigger date as the final judg-
ment in the criminal case. Section 2244(d)(1)(D), in contrast,
starts the clock for the one-year statute of limitations on “the
date on which the factual predicate of the claim or claims pre-
sented could have been discovered through the exercise of
3 Johnson’s petition was filed under §2255 and Seats’s was filed under
§2254, but the statute of limitations provisions applicable to the two sec-
tions are nearly identical and have been interpreted similarly by our court
and the Supreme Court. See Lo v. Endicott, 506 F.3d 572, 575 n.2 (7th Cir.
2007).
4 Seats did not file a response to the motion to dismiss and the record
does not reflect a reason for that omission.

-- 6 of 15 --

No. 23-1279 7
due diligence.” Perhaps due to Seats’s failure to raise the ar-
gument, the district court did not address whether Johnson’s
logic required the limitations period to be calculated under
§2244(d)(1)(D). Seats appealed, which we construed as a re-
quest for a certificate of appealability and granted.
II. Discussion
With that background, Seats’s argument before us distills
to asking that we apply Johnson to re-calculate the statute of
limitations period even though he never brought the case or
theory to the district court’s attention. Then, Seats argues, we
should order a new sentencing because the Illinois Appellate
Court unreasonably concluded that his two vacated convic-
tions did not increase his sentence in the underlying criminal
case. That is a steep hill for Seats to climb. Appointed counsel
ably brought forward what they could but Seats’s arguments
for reversal do not prevail.
We review de novo the district court’s denial of a habeas
petition on statute of limitations grounds. Patterson v. Adkins,
124 F.4th 1035, 1045 (7th Cir. 2025). First, we review the statu-
tory limitations period for a §2254 petition and how Johnson v.
United States instructs us to calculate timeliness when a ha-
beas petition is based upon vacatur of a predicate conviction.
Second, we look to Seats’s filing in district court to determine
whether he forfeited his argument that Johnson applies and
timeliness should be calculated under §2244(d)(1)(D). We find
that Seats forfeited this argument and that the circumstances
do not meet the high bar to apply plain error review in a civil
case. Finally, even if we were to find Seats’s petition timely,
he cannot overcome the presumption of correctness we give
to the Illinois Appellate Court’s finding that the sentencing

-- 7 of 15 --

8 No. 23-1279
court did not rely upon the vacated convictions in determin-
ing its sentence. For those reasons, we affirm the district court.
A. Statute of Limitations for Habeas
With Seats’s argument in mind, we turn to a more detailed
review of the limitations period he faced. Under section 2244
a state court prisoner is given one year to file a petition for a
writ of habeas corpus in federal court. 28 U.S.C. §2244(d)(1).
As relevant here, the year starts from the latest of—
(A) the date on which the judgment became final
by the conclusion of direct review or the expira-
tion of the time for seeking such review;
… or
(D) the date on which the factual predicate of the
claim or claims presented could have been dis-
covered through the exercise of due diligence.
28 U.S.C. §2244(d)(1). The limitation period is tolled for the
pendency of a “properly filed application for State post-con-
viction or collateral review.” 28 U.S.C. §2244(d)(2).
On appeal, Seats does not challenge the district court’s cal-
culation of the statute of limitations pursuant to
§2244(d)(1)(A). And for good reason—the district court cor-
rectly concluded that Seats’s petition is too late if we calculate
the limitation period as beginning from the date of final judg-
ment.
Instead, Seats argues that we should apply §2244(d)(1)(D)
and find his petition timely because he filed within one year
of his aggravated unlawful use of a weapon convictions being
vacated. Under Johnson v. United States, the vacatur of a pred-
icate felony can be a new “fact” that triggers the one-year lim-
itation period for the purposes of federal habeas relief. See 544

-- 8 of 15 --

No. 23-1279 9
U.S. at 308. We calculate the limitation period from “the lat-
est” of all triggering dates. 28 U.S.C. §2244(d)(1). Because the
date of vacatur of Seats’s aggravated unlawful use of a
weapon convictions is later than the date his criminal judg-
ment became final, he urges us to look to §2244(d)(1)(D) to
calculate his limitations period.
In Johnson, the Supreme Court held that the state-court va-
catur of a predicate felony is “a matter of fact” that can trigger
the one-year period of limitation under §2255(f)(4), but that a
petitioner must show that he acted with due diligence to seek
the vacatur. Johnson, 544 U.S. at 302. Johnson knew at the time
his federal criminal judgment was entered that the state fel-
ony convictions enhanced his sentence and yet he did not act
to vacate those convictions until 21 months after the judgment
became final. Id. at 311. Because Johnson was not diligent in
seeking the vacatur, the Court held that §2255(f)(4) did not
apply. Id.
Seats urges us to apply Johnson to find his petition timely
because he filed it less than one year after the two aggravated
unlawful use of a weapon convictions were vacated, account-
ing for the tolling effect of his post-conviction petition in state
court. The State contends that Seats waived—although it must
mean forfeited—this argument because he did not raise it in
district court.
B. Forfeiture
An argument not raised in the habeas petition or briefing
in district court is waived or forfeited on appeal. Santiago v.
Streeval, 36 F.4th 700, 710 (7th Cir. 2022) (waived); Pole v.

-- 9 of 15 --

10 No. 23-1279
Randolph, 570 F.3d 922, 937 (7th Cir. 2009) (forfeited).5 In his
petition for a writ of habeas corpus, Seats argued he was
within the statute of limitations because he had filed within
one year of the Illinois Appellate Court refusing to remand
his case for resentencing, which he contended was when his
sentence became “final.” That argument was not only likely
incorrect as a matter of law (because the Illinois Appellate
Court’s judgment was not on direct review of his sentence),
but its sole focus is the final judgment as the triggering event
and therefore relies only upon §2244(d)(1)(A). The State
raised §2244(d)(1)(D) in its motion to dismiss the petition, but
Seats did not respond to the motion. Therefore, in the district
court Seats did not make any argument that §2244(d)(1)(D)
should be applied to his petition or that the triggering event
for the period of limitations was anything other than the final
judgment date in his underlying criminal case.
Seats argues that he preserved his §2244(d)(1)(D) argu-
ment because the issue of timeliness generally was in front of
the district court, so we should apply the proper rule to the
issue. A reviewing court retains the right to choose the correct
rule to resolve a dispute, see Kamen v. Kemper Financial Services,
Inc., 500 U.S. 90, 99–100 (1991), but a litigant must be the one
to argue why he should prevail. Here Seats’s argument in the
district court was that his petition was timely based on
§2244(d)(1)(A), and that does not preserve any argument
about the applicability of §2244(d)(1)(D). See Pole, 570 F.3d at
937 (collecting cases stating that a party waives a specific ar-
gument made for the first time on appeal even if the general
5 Waiver is the knowing relinquishment of a right while forfeiture is
the unintentional or inadvertent failure to raise an argument. Bourgeois v.
Watson, 977 F.3d 620, 629 (7th Cir. 2020).

-- 10 of 15 --

No. 23-1279 11
issue is before the trial court). Recall subsection (d)(1)(A) re-
quires us to look to the date a judgment became final. That is
a far different analysis than subsection (d)(1)(D), which turns
on when the factual predicate for the habeas claim could have
been discovered with due diligence.
Seats’s reliance on United States v. Roque-Espinoza, 338 F.3d
724 (7th Cir. 2003), is likewise misplaced. There, although the
defendant’s arguments were “underdeveloped,” he cited the
cases on which his legal argument was based. Id. at 727. Here,
Seats’s only briefing in the district court, his petition, does not
invoke §2244(d)(1)(D) nor does it reference Johnson or other-
wise indicate that the proper trigger for the limitation period
was the vacatur of his predicate convictions.6
Seats has forfeited the argument that the statute of limita-
tions should be calculated under §2244(d)(1)(D), but we could
still consider that argument on plain error review. In a civil
case, plain error review is only available if “(1) exceptional
circumstances exist; (2) substantial rights are affected; and (3)
a miscarriage of justice will occur if plain error review is not
applied.” Bourgeois, 977 F.3d at 629 (citing Henry v. Hulett, 969
F.3d 769, 786 (7th Cir. 2020)) (considering civil plain error re-
view in a habeas case). This is a high bar. “[O]ur ability to re-
view for plain error in civil cases is severely constricted....”
Bourgeois, 977 F.3d at 629 (internal quotation omitted). Seats
6 Seats mentions in his §2254 petition that his convictions were va-
cated or deemed void, but he always does so in terms of the merits of his
claim for relief, not in relation to how to calculate the timeliness of his pe-
tition. While we recognize that the two lines of analysis are related, there
is simply nothing in the petition to indicate that Seats thought
§2244(d)(1)(D) could apply. Without a response to the motion to dismiss
there is no other record of argument in the district court.

-- 11 of 15 --

12 No. 23-1279
contends that an error which heightens a prison sentence im-
plicates substantial rights and the failure to correct such an
error undermines the “public legitimacy of our justice sys-
tem.” However, we see that analysis focusing more on the
merits of Seats’s petition rather than the question of what pro-
vision of §2244(d) should apply to calculate the timeliness of
his petition. The alleged error here was that the district court
did not calculate the limitation period under §2244(d)(1)(D).
These circumstances are not so exceptional that we should de-
viate from our prudential rule limiting review to the issues
presented to the district court.
Because Seats has forfeited the argument that Johnson ap-
plies to the limitation period for his §2254 petition and falls
short of the high bar for plain error review in a civil matter,
we affirm the district court’s finding that Seats’s petition was
untimely.
C. Review of Illinois Appellate Court’s Opinion
Even if we were to address the merits of Seats’s petition,
he could not overcome our deferential review of the Illinois
Appellate Court’s determination of fact.7
A federal court may “grant habeas relief only if the state
court decision ‘was contrary to, or involved an unreasonable
application of, clearly established Federal Law’ or ‘was based
on an unreasonable determination of the facts.’” Cal v. Garnett,
991 F.3d 843, 848 (7th Cir. 2021) (quoting 28 U.S.C.
7 We review the “last reasoned state court decision reached on the
merits.” Gonzales v. Eplett, 77 F.4th 585, 591 (7th Cir. 2023) (quotation omit-
ted). In this case that is the Illinois Appellate Court’s June 2020 decision
affirming the denial of Seats’s petition for post-conviction relief and in do-
ing so, declining to remand his case for a new sentencing hearing.

-- 12 of 15 --

No. 23-1279 13
§2254(d)(1)–(2)). A state court’s “decision is not unreasonable
if ‘fairminded jurists could disagree’ on [its] correctness....” Id.
(quoting Harrington v. Richter, 562 U.S. 86, 101 (2011) (internal
quotation omitted)). Further, any factual findings made by
the state court are “presumed correct” and the petition has to
show “by clear and convincing evidence” that the factual de-
termination was incorrect. Id. at 849 (citing 28 U.S.C.
§2254(e)(1)).
Because Seats argues that his due process right to be sen-
tenced based on accurate information was violated, he bears
the burden of showing “the sentencing court [ ] relied on the
critical inaccurate information when announcing its sen-
tence.” Promotor v. Pollard, 628 F.3d 878, 888 (7th Cir. 2010).
“A sentencing court demonstrates actual reliance on misinfor-
mation when the court gives ‘explicit attention’ to it,
‘found[s]’ its sentence ‘at least in part’ on it, or gives ‘specific
consideration’ to the misinformation before imposing its sen-
tence.” Lechner v. Frank, 341 F.3d 635, 639 (7th Cir. 2003) (al-
teration in original) (quoting United States v. Tucker, 404 U.S.
443, 447 (1972)). The Illinois Appellate Court determined that
the sentencing judge gave Seats’s aggravated unlawful use of
a weapon convictions “insignificant” weight that “did not
lead to a greater sentence.” Seats, 2020 IL App (1st) 170738-U,
¶ 18. The court found that the factors “expressly discussed
and emphasized by the trial court during sentencing were the
amount of evidence against the defendant and the serious na-
ture of his crime—shooting the victim in the face.” Id. ¶ 17.
Seats’s criminal history was mentioned, but only in general
terms. And the vacated convictions were but two of his six
convictions.

-- 13 of 15 --

14 No. 23-1279
The Illinois Appellate Court’s finding is a reasonable de-
termination of the facts. The sentencing judge’s explanation
of the sentence referred to Seats’s “considerable criminal
background,” but also related the victim’s injury and the fact
that Seats would be serving most of his sentence. The judge
concluded: “Fortunately this man was not hurt worse than he
was although he was hospitalized for quite some time. He did
receive serious injuries. He was shot in the face. I’m mindful
of the fact the sentencing range is at 85 percent.” We have re-
viewed the sentencing court’s statements and believe the Illi-
nois Appellate Court’s factual finding that the sentencing
judge did not rely upon the vacated convictions is reasonable
based upon the record.
Seats argues that the transcript of the trial court’s ruling
on his petition for post-conviction relief shows that the sen-
tencing court did take the vacated 2007 felonies into account.
The trial judge said during the hearing on Seats’s petition for
post-conviction relief that he did not consider the 2005 aggra-
vated unlawful use of a weapon felony because he was think-
ing of “two other cases, felony cases.” Seats says that state-
ment is evidence that the judge relied on the two 2007 aggra-
vated unlawful use of a weapon felonies. But the rest of the
judge’s comments show otherwise. The judge said he did not
consider the 2005 aggravated unlawful use of a weapon fel-
ony because “he had other, two other cases, felony cases where
he was sentenced at the same time.” That suggests that the trial
court was referencing the two other felony convictions that
Seats received in 2005, not the vacated 2007 aggravated un-
lawful use of a weapon convictions. It is certainly not evi-
dence that the Illinois Appellate Court’s factual finding is un-
reasonable. And that factual finding is determinative to
Seats’s claim—if the sentencing court did not actually rely on

-- 14 of 15 --

No. 23-1279 15
the vacated convictions in fashioning his sentence, then Seats
does not have a due process claim.
III. Conclusion
For the reasons stated above, the district court’s decision
dismissing Seats’s §2254 petition as untimely is AFFIRMED.

-- 15 of 15 --