Michael Lairy V United States
In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 23-2957
MICHAEL DEWAYNE LAIRY,
Petitioner-Appellant,
v.
UNITED STATES OF AMERICA,
Respondent-Appellee.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Evansville Division.
No. 20-cv-144 — Richard L. Young, Judge.
____________________
ARGUED DECEMBER 5, 2024 — DECIDED JULY 7, 2025
____________________
Before SYKES, Chief Judge, and ROVNER and ST. EVE, Circuit
Judges.
ST. EVE, Circuit Judge. Michael Lairy petitioned for a writ
of habeas corpus under 28 U.S.C. § 2255, claiming in part that
he did not qualify for the Armed Career Criminal Act’s
(“ACCA”) mandatory 15-year sentence, 18 U.S.C. § 924(e)(1),
and that his counsel was ineffective for failing to raise this is-
sue. The government did not address the underlying merits
2 No. 23-2957
of Lairy’s claims but asserted that he raised them after the
statute of limitations had expired. The district court held
Lairy to his untimeliness and denied his petition. In so doing,
the court rejected Lairy’s arguments that the government for-
feited the statute of limitations defense, he was actually inno-
cent of ACCA, and he was entitled to equitable tolling.
For the reasons below, we agree with the district court’s
evaluation of forfeiture and disposition on actual innocence.
But the district court abused its discretion by rejecting equita-
ble tolling without first conducting an evidentiary hearing.
We therefore vacate the denial of the petition and remand to
the district court to conduct an evidentiary hearing on equita-
ble tolling.
I. Background
In 2018, Michael Lairy pleaded guilty to being a felon in
possession of a firearm and ammunition in violation of 18
U.S.C. § 922(g)(1). At the time of his sentencing, the offense
ordinarily carried a statutory maximum sentence of ten years.
§ 924(a)(2) (2018 ed.). But a defendant faces a more severe
punishment—a statutory minimum sentence of 15 years—if
he qualifies for the ACCA enhancement. A defendant quali-
fies for ACCA when he “has three previous convictions … for
a violent felony or a serious drug offense, or both, committed
on occasions different from one another ….” 18 U.S.C.
§ 924(e)(1).
The parties initially believed Lairy’s prior convictions
qualified as predicate offenses for ACCA because he had three
cocaine-distribution convictions in Indiana that were thought
to be “serious drug offenses.” Relying on these convictions,
the district court sentenced Lairy to 15 years in prison. Lairy’s
No. 23-2957 3
counsel did not object to the application of ACCA during the
plea or sentencing process, and Lairy did not appeal.
Two years later, in June of 2020, Lairy filed a pro se petition
for habeas corpus under 28 U.S.C. § 2255, citing the Supreme
Court’s decision in Rehaif v. United States, 588 U.S. 225 (2019),
as grounds for relief. In Rehaif, the Court held that the govern-
ment must prove “the defendant knew he possessed a firearm
and … belonged to the relevant category of persons barred
from possessi[on].” Id. at 237. Lairy amended his petition the
following year—in March 2021—to develop this claim.
After pressing his Rehaif claim across five pages in his
amended petition, he wrote in all caps, “[a]lso at least one of
Mr. Lairy’s prior offens[e]s used as an Armed Career Criminal
predicate to enhance the sentence may not qualify and vio-
lates due process.” He underlined the preceding sentence and
continued, “[a]t the time Mr. Lairy was sentenced the Ausa
and counsel may have been aware that Mr. Lairy’s prior con-
viction was NOT a valid predicate offense under ACCA.” He
further stated that “[t]he drug priors may also be in question
as more research may be needed.” Lairy then continued dis-
cussing how the Court’s holding in Rehaif cast doubt on his
plea agreement and asked the court to appoint counsel so he
could further amend his petition.
The government focused its answer on the Rehaif claim,
only briefly addressing Lairy’s statements about ACCA. The
government referred to his statement regarding ACCA as a
“Vague Sentencing Assertion [that] is Unclear,” and primarily
argued that Lairy waived any ACCA claim because his state-
ment raised a perfunctory question about his drug priors ra-
ther than a cogent argument. In a concluding sentence, the
government also suggested that Lairy waived his right to
4 No. 23-2957
challenge his conviction on collateral attack through his plea
agreement, which only excepted claims related to ineffective
assistance of counsel, or procedurally defaulted the claim.
The district court agreed that Lairy’s reference to ACCA
was too vague and appointed Lairy counsel. With the benefit
of counsel, Lairy submitted a supplemental memorandum ex-
plaining that his reference to ACCA encompassed two claims.
He argued that his three Indiana cocaine convictions did not
qualify as “serious drug offenses” under ACCA and that his
counsel was ineffective for failing to explain this issue before
allowing him to accept a 15-year sentence. Lairy grounded
these arguments in a line of cases explaining that state drug
offenses only count as ACCA predicates when there is a cate-
gorical match between the State’s definition of the drug and
that under federal law. See United States v. Ruth, 966 F.3d 642,
647 (7th Cir. 2020); Shular v. United States, 589 U.S. 154, 157–
59 (2020). At least one district court found that Indiana’s defi-
nition of cocaine does not match the federal definition because
it includes a broader array of isomers. See Alston v. United
States, No. 2:16-cv-00016-JMS-DLP, 2021 WL 82963, at *2 (S.D.
Ind. Jan. 11, 2021).
The government did not—and has not since—addressed
the merits of Lairy’s ACCA or related ineffective assistance of
counsel claim (together, “ACCA claims”). Instead, it invoked
§ 2255’s one-year statute of limitations. See § 2255(f)(1). With
respect to Lairy’s ACCA claims, the statute of limitations be-
gan to run on July 2, 2018, when his conviction became final
after his time to file an appeal expired, and ran out on July 2,
2019. But Lairy first referenced ACCA in March 2021, nearly
two years late.
No. 23-2957 5
In the district court (as here), Lairy brought various argu-
ments to try to avoid § 2255’s statute of limitations. He argued
that the government waived or forfeited the statute of limita-
tions defense by failing to raise it in response to his amended
pro se petition. In the alternative, he argued that the statute of
limitations did not bar his claim because he was actually in-
nocent of ACCA or entitled to equitable tolling.
The district court rejected each of these arguments. It con-
cluded that the government neither waived nor forfeited the
statute of limitations defense by raising it for the first time in
response to appointed counsel’s briefing because Lairy “was
just as much to blame” for the delay. The court then rejected
Lairy’s actual innocence argument. It explained that circuit
precedent has never extended the actual innocence exception
to claims of legal innocence. The court also expressed its con-
cern that extending the actual innocence exception in this way
would unduly undermine the statute of limitations. Finally,
the court denied Lairy’s equitable tolling contention, without
mentioning an evidentiary hearing.1
The district court granted Lairy a certificate of appealabil-
ity, and this appeal followed.
II. Discussion
Lairy does not dispute that his ACCA and ineffective as-
sistance claims are untimely. He instead takes issue with the
district court’s analysis of forfeiture and actual innocence,
along with its failure to conduct an evidentiary hearing on eq-
uitable tolling. We review issues of law de novo, factual find-
ings for clear error, and the decision to forgo an evidentiary
1 Lairy’s Rehaif claim is not before us.
6 No. 23-2957
hearing for an abuse of discretion. See Dekelaita v. United
States, 108 F.4th 960, 968 (7th Cir. 2024); Martin v. United States,
789 F.3d 703, 705–06 (7th Cir. 2015).
A. Forfeiture of the Statute of Limitations Defense
“[F]orfeiture is the mere failure to raise a timely argument,
due to either inadvertence, neglect, or oversight.” Henry v.
Hulett, 969 F.3d 769, 786 (7th Cir. 2020); Bourgeois v. Watson,
977 F.3d 620, 631 (7th Cir. 2020) (applying this rule in the ha-
beas context). When a party forfeits a defense by raising it too
late, the district court may exercise its discretion and allow the
defense if the plaintiff will not suffer prejudice by the delay.
Burton v. Ghosh, 961 F.3d 960, 965 (7th Cir. 2020). Here, the
district court did not conduct a prejudice analysis because it
concluded the government had timely raised the statute of
limitations in response to appointed counsel’s explanation of
Lairy’s claims.
Generally, the failure to raise an affirmative defense in an
answer evinces forfeiture. See Anderson v. United States, 981
F.3d 565, 571 (7th Cir. 2020). But this rule has exceptions. See
Burton, 961 F.3d at 965 (failing to raise an affirmative defense
in an answer does “not necessarily [render it] untimely and
forfeited.”). It is “[o]nly when the defense is asserted later
than it should have been” that the defense is untimely. Id.
A party is not untimely in its assertion of an affirmative
defense if it could not have “reasonably known of [its] availa-
bility … at the time of the answer.” Id. This may be the case
when a plaintiff’s unclear or belated presentation of his claims
results in the delay. See Bourgeois, 977 F.3d at 631 (finding no
forfeiture when the petitioner’s “undifferentiated presenta-
tion of the claims[] was just as much to blame” for the
No. 23-2957 7
government’s silence); see also Blackmon v. Williams, 823 F.3d
1088, 1100 (7th Cir. 2016) (same when a petitioner did not raise
the basis for an argument until a supplemental memoran-
dum). Put simply, “an unpleaded defense is not forfeited
when raised promptly once its availability becomes appar-
ent.” Burton, 961 F.3d at 967.
In this case, Lairy’s unclear and belated presentation of his
claims meant that the government could not have reasonably
known of the availability of a statute of limitations defense at
the time the government filed its answer. Lairy’s petition
merely stated that “[the] drug priors may also be in question
as more research may be needed” and that a predicate convic-
tion under ACCA “may not qualify and violates due process.”
These undeveloped sentences did not alert the government to
Lairy’s two grounds for relief: that his drug convictions were
not serious drug offenses under the categorical approach and
his counsel was ineffective for failing to raise this issue.
Lairy’s grounds for relief impacted when the statute of
limitations period began. Section 2255(f) imposes a one-year
statute of limitations for habeas petitions that runs from the
latest of one of four events. So, if Lairy intended to raise an
ACCA claim premised on a newly recognized right, see
§ 2255(f)(3), the limitations period would have begun to run
on a different date than if he had discovered new facts such
as the vacatur of one of his drug convictions, see § 2255(f)(4).
And if none of the other provisions in § 2255(f) applied, then
the year would run from the date Lairy’s judgment of convic-
tion became final. § 2255(f)(1). Lairy’s vague assertions, how-
ever, did not reasonably apprise the government of the basis
of his ACCA claims, which would in turn inform it of the ap-
plicable statute of limitations provision.
8 No. 23-2957
In fact, the different provisions of § 2255(f) explain why
Lairy’s Rehaif claim was timely under (f)(3), while what
turned out to be his “drug prior” arguments were not under
(f)(1). Lairy’s brief mention of his drug priors in the middle of
a developed Rehaif claim only served to further cloud the na-
ture of his claims.
Lairy contends that the government should have known
his claims were based on an isomer issue because this was his
best argument and it was being raised in other cases at the
time. But this misses the point. It is not the government’s bur-
den to create claims for Lairy and defend against what it de-
cides is the best one. Rather, the government expressed that it
did not know how to confront his vague ACCA assertion, and
the district court agreed. Once appointed counsel explained
Lairy’s claims, the statute of limitations defense became “ap-
parent” to the government, who then “raised [it] promptly.”
See Burton, 961 F.3d at 967.
The government’s brief mention of procedural default and
plea agreement waiver does not change our holding. Both of
these defenses apply broadly. Lairy defaulted any claim he
could have raised at trial or on direct appeal, and his plea
agreement waived almost all challenges on collateral attack.
To reasonably know of the availability of these defenses, then,
the government only needed to know that Lairy did not men-
tion the drug priors during his sentencing, that he did not ap-
peal, and that he was now collaterally attacking his conviction
and sentence. 2
2 Although both defenses applied broadly to claims Lairy could have
raised in his petition, the government’s invocation of them further
No. 23-2957 9
Nor do we liken Lairy’s case to situations where the gov-
ernment raises the statute of limitations defense for the first
time on appeal. In those cases, courts have expressed the
irony or unfairness in holding the petitioner to a time bar
while excusing the government’s belated defense. See, e.g.,
Anderson v. United States, 981 F.3d 565, 571–72 (7th Cir. 2020);
Cartwright v. United States, 12 F.4th 572, 580–81 (6th Cir. 2021).
Such concerns are not implicated here, where the district
court even-handedly provided Lairy with an opportunity to
clarify his reference to the drug priors by appointing counsel
and allowed the government to fully respond to what these
claims turned out to be.
We do not intend to suggest that the government avoids
forfeiting its statute of limitations defense any time a pro se
petitioner inartfully presents a claim. To the contrary, we
readily foresee situations where the petition, though wanting
in precision, reasonably apprises the government of this de-
fense at the time of its answer. We hold only, under the lim-
ited circumstances here, which involve a single, undeveloped
sentence on drug priors placed in the middle of another de-
veloped claim, that the government did not forfeit its statute
of limitations defense.
highlights the lack of clarity in Lairy’s petition. The face of the plea agree-
ment allowed Lairy to raise ineffective assistance claims, and a § 2255 pe-
titioner may bring ineffective assistance claims for the first time on collat-
eral review. See Massaro v. United States, 538 U.S. 500, 504 (2003). While not
determinative, the government’s invocation of misplaced defenses in re-
sponse to Lairy’s ineffective assistance of counsel claim supports our as-
sessment that Lairy’s pro se ACCA claims were far less clear than he be-
lieved them to be.
10 No. 23-2957
We turn now to two concepts—actual innocence and eq-
uitable tolling—that Lairy invokes to get around the statute
of limitations bar.
B. Actual Innocence Gateway
A habeas petitioner who demonstrates actual innocence
may overcome a procedural bar, such as the statute of limita-
tions. See McQuiggin v. Perkins, 569 U.S. 383, 386 (2013); Lund
v. United States, 913 F.3d 665, 667 (7th Cir. 2019). In this way,
actual innocence is “not itself a constitutional claim, but in-
stead a gateway through which a habeas petitioner must pass
to have his otherwise barred constitutional claim considered
on the merits.” Herrera v. Collins, 506 U.S. 390, 404 (1993). The
gateway’s purpose is to avoid miscarriages of justice that re-
sult in the incarceration of innocent persons. McQuiggin, 569
U.S. at 392.
Lairy seeks to use the actual innocence gateway to access
his time-barred ineffective assistance of counsel claim. To do
so, he argues that he is actually innocent of ACCA because his
Indiana cocaine convictions do not qualify as “serious drug
offenses” under the categorical approach. Although simple on
its face, this argument implicates several questions about the
nature of actual innocence. We begin by addressing whether
ACCA is a crime or sentencing enhancement. This in turn im-
pacts whether we recognize and how we view the gateway.
Recall that ACCA requires three prior “violent felon[ies]
or [] serious drug offense[s]” that were “committed on occa-
sions different from one another.” 18 U.S.C. § 924(e)(1). The
Supreme Court recently held that a jury must decide whether
the prior offenses were committed on different occasions be-
cause this “fact-laden” inquiry impacts the maximum and
No. 23-2957 11
minimum sentence a defendant faces. Erlinger v. United States,
602 U.S. 821, 825, 834–35 (2024). In Lairy’s view, this trans-
forms ACCA into a crime because the occasions inquiry is
now an element the government must allege in an indictment
and that a jury must find beyond a reasonable doubt. 3
True, a “core crime and the fact triggering the mandatory
minimum sentence together constitute a new, aggravated
crime.” Alleyne v. United States, 570 U.S. 99, 113 (2013). But
Lairy overreads Erlinger, which “decide[d] no more than that”
a jury must “resolve ACCA’s occasions inquiry,” Erlinger, 602
U.S. at 835, and Lairy does not challenge the occasions inquiry
here. In Erlinger, the Supreme Court took care not to say more,
and it did not recharacterize ACCA as a substantive crime.
Nor did it address whether a jury must decide the separate
issue Lairy raises—whether certain convictions qualify as se-
rious drug offenses—because that issue was not raised in the
case. Accordingly, determining “what crime, with what ele-
ments, the defendant was convicted of” remains the province
of the judge under the Court’s prior precedent. Id. at 838
(quoting Mathis v. United States, 579 U.S. 500, 512 (2016)); see
also Alleyne, 570 U.S. at 111 n.1 (recognizing the narrow excep-
tion in Almendarez-Torres v. United States, 523 U.S. 224 (1998),
that allows judges to determine “the fact of a prior convic-
tion”). 4 Although this is the first time we have been directly
3 The government asserts that Erlinger is not retroactive but failed to
develop this argument. We therefore do not, and need not, decide this
question today.
4 We recognize that the Supreme Court has questioned this exception,
but it still remains good law. See Erlinger, 602 U.S. at 837–38; Agostini v.
Felton, 521 U.S. 203, 207 (1997) (courts of appeals should leave the Supreme
Court “the prerogative of overruling its own decisions”).
12 No. 23-2957
presented with the question of whether Erlinger impacts how
we view ACCA, we have continued to describe ACCA as im-
posing “enhanced penalties” post-Erlinger. United States v.
Johnson, 114 F.4th 913, 914 (7th Cir. 2024). 5
Equipped with the understanding that ACCA remains a
sentencing enhancement, we turn to Lairy’s alternate argu-
ment that the actual innocence gateway nevertheless applies.
The Supreme Court has not yet addressed whether a peti-
tioner can be actually innocent of a non-capital sentence. See
Dretke v. Haley, 541 U.S. 386, 391–92 (2004) (highlighting a
“growing divergence of opinion” among the circuits but not
resolving the issue). And Lairy and the government dispute
what our caselaw says on this issue. Compare Mills v. Jordan,
979 F.2d 1273, 1278–79 (7th Cir. 1992) (accepting that a peti-
tioner can avoid procedural default if he is actually innocent
of a habitual offender sentence enhancement) with Hope v.
United States, 108 F.3d 119, 120 (7th Cir. 1997) (abrogating
Mills at least in the context of successive petitions).
We need not settle this dispute today. Even assuming Mills
applies to first-time petitioners in the way Lairy suggests,
Lairy’s argument fails because it is one of legal, not factual,
innocence. Actual innocence “means factual innocence, not
5 We are not alone in doing so. See United States v. Valencia, 137 F.4th
331, 333 (5th Cir. 2025) (referring to ACCA as “[t]his sentencing enhance-
ment”); United States v. Harvin, No. 20-14497, 2024 WL 4563684, at *2 (11th
Cir. Oct. 24, 2024) (per curiam) (“The ACCA does not create a separate
offense, but merely provides for sentencing enhancements.”); United States
v. Brown, 136 F.4th 87, 96 (4th Cir. 2025) (“Clearly, the circumstances here
do not involve the addition of a new offense to the indictment; it was, rather,
the failure to allege in the indictment but one element of the ACCA sentenc-
ing enhancement to be decided by the jury.”).
No. 23-2957 13
mere legal insufficiency.” Bousley v. United States, 523 U.S. 614,
623 (1998). Factual innocence certainly includes the petitioner
presenting “new reliable evidence—whether it be exculpa-
tory scientific evidence, trustworthy eyewitness accounts, or
critical physical evidence ….” Schlup v. Delo, 513 U.S. 298, 324
(1995); McQuiggin, 569 U.S. at 395 (emphasizing that the gate-
way applies to cases that involve “new evidence”). And more
recently, some of our sister circuits have suggested that a sub-
sequent change in the scope of the law that renders the peti-
tioner’s conduct no longer criminal can open the gateway. See,
e.g., Vosgien v. Persson, 742 F.3d 1131, 1134–35 (9th Cir. 2014).
Legal innocence, by contrast, can look like challenging the
sufficiency of the evidence in the record. See Mills, 979 F.2d at
1279.
Here, Lairy does not provide new evidence demonstrating
he did not commit his Indiana drug offenses or even challenge
that he committed the drug offenses. Nor does Lairy suggest
that a subsequent change in the law renders him innocent of
ACCA. In fact, Lairy disavows any reliance on a change in the
law in his reply brief, explaining that his claim can only rest
on cases that pre-date his conviction and that Ruth “did not
change the law.” 6
Lairy instead contends that the district court misclassified
his Indiana convictions as serious drug offenses because
6 Because Lairy disavows this theory, we once again do not answer
whether a change in law can demonstrate actual innocence. See Lund, 913
F.3d at 667–68 (presenting this question but resting our holding on other
grounds); Gladney v. Pollard, 799 F.3d 889, 897 (7th Cir. 2015) (same); Cobbs
v. United States, ---F.4th---, No. 23-3140, 2025 WL 1762368, at *4–5 (7th Cir.
June 26, 2025) (same).
14 No. 23-2957
Indiana’s definition of cocaine includes a broader array of
drug isomers than the federal definition. We now join several
of our sister circuits in holding that the misclassification of a
predicate offense for a sentencing enhancement is legal inno-
cence that does not open the actual innocence gateway. See
United States v. Pettiford, 612 F.3d 270, 283–84 (4th Cir. 2010)
(explaining that the misclassification of an ACCA predicate is
a “legal argument[,] … not cognizable as a claim of actual in-
nocence”); McKay v. United States, 657 F.3d 1190, 1199 (11th
Cir. 2011) (declining to “extend the actual innocence of sen-
tence exception to claims of legal innocence of a predicate of-
fense”); Damon v. United States, 732 F.3d 1, 6 (1st Cir. 2013)
(contesting “only the categorization of his prior conviction as
a crime of violence” is “not plead[ing] ‘actual innocence’”);
United States v. Vargas-Soto, 35 F.4th 979, 1000 (5th Cir. 2022)
(explaining that an argument that a prior conviction was not
an “aggravated felony” supporting a sentencing enhance-
ment is “at best legal innocence”); see also United States v. Pe-
terson, 916 F. Supp. 2d 102, 106–07 (D.D.C. 2013) (stating that
“an objection to the legal classification of [an] offense” cannot
excuse untimely filing).
As Lairy pointed out during oral argument, the Ninth Cir-
cuit views misclassification arguments grounded in a retroac-
tive intervening change in the law as factual innocence. See
Allen v. Ives, 950 F.3d 1184, 1190 (9th Cir. 2020). 7 And the
Eighth Circuit excused a petitioner’s procedural default of an
7 The Ninth Circuit decided this in the context of the savings clause,
28 U.S.C. § 2255(e), which allows a federal prisoner to proceed under 28
U.S.C. § 2241 in a narrow set of circumstances not at issue here. Jones v.
Hendrix, 599 U.S. 465 (2023), however, calls into question much of the sav-
ings clause caselaw upon which Lairy relies.
No. 23-2957 15
argument challenging the application of ACCA. See Lofton v.
United States, 920 F.3d 572, 576–77 (8th Cir. 2019). We decline
to adopt these approaches here, finding the decisions of the
First, Fourth, Fifth, and Eleventh Circuits more persuasive.
Lastly, Lairy argues that even if he cannot demonstrate ac-
tual innocence, his situation falls under a broader exception
for miscarriages of justice. But to support this argument, Lairy
cites caselaw involving the savings clause and cognizability
on collateral review. See, e.g., Guenther v. Marske, 997 F.3d 735,
742 (7th Cir. 2021) (savings clause); Narvaez v. United States,
674 F.3d 621, 630 (7th Cir. 2011) (cognizability). Caselaw in-
volving the savings clause is “inapposite.” White v. United
States, 8 F.4th 547, 557 (7th Cir. 2021). So too is caselaw about
cognizability.
We therefore decline to extend the gateway to a petitioner
challenging a sentencing enhancement based on a legal pred-
icate misclassification argument. In so doing, we stay true to
the Supreme Court’s admonition that tenable gateway claims
are “extremely rare” and for “extraordinary case[s].” Schlup,
513 U.S. at 321–22; see also McQuiggin, 569 U.S. at 395 (under-
scoring that the exception “applies to a severely confined cat-
egory” of cases); cf. Jones v. Hendrix, 599 U.S. 465, 491 (2023)
(“Undoubtedly, McQuiggin’s assertion of equitable authority
to override clear statutory text was a bold one.”).
C. Evidentiary Hearing on Equitable Tolling
Finally, we turn to Lairy’s argument that the district court
should have conducted an evidentiary hearing on equitable
tolling. We review a district court’s decision to forgo an evi-
dentiary hearing for an abuse of discretion, emphasizing that
16 No. 23-2957
“an error of law is, by definition, an abuse of discretion.” Mar-
tin, 789 F.3d at 705–06.
Equitable tolling can excuse a federal habeas petitioner’s
untimely filing under § 2255’s one-year limitations period.
Ademiju v. United States, 999 F.3d 474, 477 (7th Cir. 2021). Alt-
hough equitable tolling is rare, it is not a “chimera—some-
thing that exists only in the imagination.” Carpenter v. Douma,
840 F.3d 867, 870 (7th Cir. 2016) (quoting Socha v. Boughton,
763 F.3d 674, 684 (7th Cir. 2014)). To receive the remedy of
equitable tolling, a petitioner must show “(1) that he has been
pursuing his rights diligently, and (2) that some extraordinary
circumstance stood in his way and prevented timely filing.”
Holland v. Florida, 560 U.S. 631, 649 (2010) (internal quotation
marks omitted).
When a petitioner’s allegations supporting equitable toll-
ing are vague or conclusory, or when “the files and records of
the case conclusively show that the prisoner is entitled to no
relief,” the district court need not conduct an evidentiary
hearing. 28 U.S.C. § 2255(b) (emphasis added); Mayberry v.
Dittmann, 904 F.3d 525, 532 (7th Cir. 2018). But an evidentiary
hearing is necessary when a petitioner alleges facts that, if
true, would entitle him to relief. Mayberry, 904 F.3d at 532. A
petitioner’s burden for receiving an evidentiary hearing is
therefore “relatively light.” Torres-Chavez v. United States, 828
F.3d 582, 586 (7th Cir. 2016).
Here, the record lacks any indication that the district court
considered whether it should conduct an evidentiary hearing.
The district court did not mention an evidentiary hearing,
Lairy’s request for one, or the standard under § 2255(b). We
are troubled by these omissions. Instead of asking whether
Lairy’s allegations, if true, would entitle him to relief, it
No. 23-2957 17
appears the district court construed evidentiary gaps against
Lairy.
Lairy sought equitable tolling because he claimed he was
in lockdown for the majority of the one-year filing period, for
many months after his filing period ended, and once again in
March 2020 due to the COVID-19 pandemic. He also ex-
plained that he lacked access to the law library during these
lockdowns and that, despite his repeated requests to his for-
mer counsel, he only received access to some of his case files
a day before filing his amended petition mentioning ACCA.
Lairy supported these allegations with letters describing these
circumstances.
But the district court viewed this as “no evidence” because
he did not state how long the COVID-19 lockdowns lasted,
describe what law library and other limitations he faced, or
explain why he needed his case file from his former counsel.
An evidentiary hearing could have addressed these precise
questions. See Weddington v. Zatecky, 721 F.3d 456, 464–65 (7th
Cir. 2013) (requiring an evidentiary hearing on a petitioner’s
access to legal materials when the “record presents factual is-
sues”); Estremera v. United States, 724 F.3d 773, 775–77 (7th Cir.
2013) (explaining that an evidentiary hearing would have
been necessary to learn whether the petitioner pursued his
rights diligently).
What is more, the answers to the issues the district court
raised may very well result in a meritorious equitable tolling
argument. All of the circumstances Lairy alleged are relevant
considerations for equitable tolling. See Socha, 763 F.3d at 684–
88. And equitable tolling is a fact specific inquiry. Id. at 686.
Indeed, we cannot apply its legal standard when “we have no
idea what happened.” Estremera, 724 F.3d at 775.
18 No. 23-2957
The record does not “conclusively show that [Lairy] is en-
titled to no relief.” 28 U.S.C. § 2255(b). So the district court
should have conducted an evidentiary hearing to fill in factual
gaps rather than overlook the inquiry altogether or resolve the
gaps against him. We therefore remand to the district court to
conduct an evidentiary hearing on equitable tolling.
III. Conclusion
From time to time, we are reminded of the “stark reality
that the limitations on habeas corpus relief can have very real
and lasting consequences for prisoners laboring to navigate
its complexities.” Worman v. Entzel, 953 F.3d 1004, 1005 (7th
Cir. 2020). This case serves as one of those reminders. Lairy is
serving additional time in prison that no one disputes would
be improper if he were sentenced today. But he brought his
ACCA claims too late, and the government did not forfeit its
statute of limitations defense.
Without access to the actual innocence gateway, Lairy
must rely on equitable tolling. On remand, the district court
shall conduct an evidentiary hearing to determine Lairy’s eli-
gibility for equitable tolling. We therefore VACATE the denial
of Lairy’s habeas petition and REMAND to the district court
to conduct an evidentiary hearing for the issue of equitable
tolling. We AFFIRM the judgment in all other respects.