Suggs v. United States

• Decision Date: 17 January 2013
• Docket Number: No. 10–3944.,10–3944.
• Citation: 705 F.3d 279
• Parties: Alonzo SUGGS, Petitioner–Appellant, v. UNITED STATES of America, Respondent–Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

705 F.3d 279

Alonzo SUGGS, Petitioner–Appellant,

v.UNITED STATES of America, Respondent–Appellee.

No. 10–3944.

United States Court of Appeals,

Seventh Circuit.

Argued Sept. 13, 2012.

Decided Jan. 17, 2013.

Robert J. Palmer (argued), Mitchel Ramirez, Attorneys, May, Oberfell & Lorber, Mishawaka, IN, for Petitioner–Appellant.

Robert L. Garrison, Attorney, Office of the United States Attorney, Criminal Division, Fairview Heights, IL, Benjamin J. Horwich (argued), Attorney, Department of Justice Office of the Solicitor General, Washington, DC, for Respondent–Appellee.

Before MANION, SYKES, and HAMILTON, Circuit Judges.

HAMILTON, Circuit Judge.

This appeal depends on a nuance of habeas corpus practice under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). The specific issue is whether a second-in-time motion filed under 28 U.S.C. § 2255 is barred as “second or successive” when a prisoner has been resentenced pursuant to a successful first section 2255 motion, and the new motion challenges only the underlying conviction, not the resentencing. The Supreme Court recently addressed a closely related but distinct question in Magwood v. Patterson, 561 U.S. ––––, 130 S.Ct. 2788, 177 L.Ed.2d 592 (2010), holding that a petitioner's second challenge to his sentence under 28 U.S.C. § 2254 was not barred as “second or successive” when it (a) came after the petitioner had been resentenced because of a successful, initial section 2254 petition and (b) asserted a claim based only on the resentencing. The Magwood Court expressly declined to extend its holding to the situation we face here, where the second motion challenges the original conviction, not the new sentence. This circuit's precedent holds that the second motion here is barred as second or successive. Dahler v. United States, 259 F.3d 763 (7th Cir.2001). We recognize that the reasoning in Magwood casts some doubt about the continued viability of Dahler. However, because Magwood explicitly limited its holding so as not to reach the situation we face here, we are not persuaded that we should overrule our precedent. Based on the authority of Dahler, we conclude that Suggs' motion is “second or successive” under section 2255, and we affirm the district court's dismissal for lack of jurisdiction.

I. Factual and Procedural Background

In 2001, Alonzo Suggs was convicted of conspiracy to possess cocaine with the intent to distribute and was sentenced to 300 months in prison. He challenged his conviction and sentence on nine grounds under 28 U.S.C. § 2255, which authorizes federal courts to vacate, set aside, or correct a federal prisoner's sentence. Suggs eventually succeeded on one of those grounds—he received ineffective assistance of counsel regarding his sentencing guideline calculations. After a remand, the district court recalculated the guidelines and imposed a new sentence of 240 months.

After his resentencing, which occurred in 2009, eight years after his trial, Suggs obtained new information that he argues shows his innocence. A key witness against him has now recanted his testimony and claims that his first statement to law enforcement did not implicate Suggs. If that in fact happened, and if the first exculpatory statement was not disclosed to Suggs and his attorney as he claims, there could have been a violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). The government agrees here that if this were Suggs' first section 2255 motion, the evidence he has presented would be enough to require at least an evidentiary hearing on the Brady claim.

The problem is that sections 2244(a) and 2255(h) sharply restrict a “second or successive” motion to narrow circumstances that do not apply here. Suggs requested permission from this court to bring a second challenge to his conviction because of his newly discovered evidence. See 28 U.S.C. § 2255(h). We denied his request, finding that his new evidence did “not come close to showing that no reasonable factfinder would have found him guilty as required for authorization.” Suggs v. United States, No. 09–3070, Order (7th Cir. Aug. 27, 2009). Suggs then filed a new motion under section 2255 in the district court challenging his conviction based on the new evidence. Although this was literally his second motion under section 2255, Suggs argued that it should not be barred as “second or successive” because his resentencing imposed a new judgment such that his new motion under section 2255 should not be barred. The district court disagreed and dismissed his motion based on Dahler, the controlling circuit precedent. Suggs now appeals the dismissal.

II. Analysis

We must determine whether Suggs' most recent motion counts as “second or successive” under section 2255 and thus should be barred under sections 2244 and 2255. We have jurisdiction under 28 U.S.C. §§ 1291 and 2253(a). We review de novo the district court's determination of this question of law.

A. Section 2255's Limits on Second or Successive Petitions

Section 2255 gives a federal prisoner one opportunity to challenge a conviction and sentence following a direct appeal. See 28 U.S.C. § 2255(a), (h). If a prisoner seeks to challenge his conviction or sentence a second time, he must persuade a court of appeals to certify the motion and authorize the district court to hear it. See 28 U.S.C. §§ 2244(a)–(b), 2255(h). The court of appeals may authorize a second or successive motion only if it presents either (1) newly discovered evidence that makes a clear and convincing showing of innocence or (2) a new rule of constitutional law made retroactive by the Supreme Court. 28 U.S.C. § 2255(h). Without authorization from the court of appeals, the district court has no jurisdiction to hear the petition. Burton v. Stewart, 549 U.S. 147, 152–53, 127 S.Ct. 793, 166 L.Ed.2d 628 (2007).

Not all literally subsequent motions, however, are “second or successive” within the meaning of the statutes, for the phrase is a term of art in the technical world of habeas procedure. See Panetti v. Quarterman, 551 U.S. 930, 944, 127 S.Ct. 2842, 168 L.Ed.2d 662 (2007) (“The Court has declined to interpret ‘second or successive’ as referring to all § 2254 applications filed second or successively in time....”). For example, since AEDPA's earliest days, we have held that if a petitioner successfully challenges a sentence via one section 2255 motion and is resentenced, a later motion challenging the resentencing is not “second or successive.” Walker v. Roth, 133 F.3d 454 (7th Cir.1997). Similarly, if an incompetency challenge to the death penalty is not ripe when a petitioner files the first application, the petitioner's second application once the challenge is ripe is not “second or successive.” Panetti, 551 U.S. at 945, 127 S.Ct. 2842 (petition raising incompetency challenge to death penalty as soon as the claim is ripe is not second or successive where it would not have been ripe at time of first petition); see also Stewart v. Martinez–Villareal, 523 U.S. 637, 645, 118 S.Ct. 1618, 140 L.Ed.2d 849 (1998) (construing petitioner's initial and subsequent applications raising an incompetency challenge to the death penalty as a single application so that later application was not “second or successive”). Or if a prisoner's first application is dismissed without a decision on the merits because of failure to exhaust state remedies and the prisoner files another application after exhausting state remedies, the application with newly exhausted claims is not “second or successive.” Slack v. McDaniel, 529 U.S. 473, 485–86, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000).

B. The Meaning of “Second or Successive ”

This case turns on whether Suggs' motion filed after his resentencing is “second or successive” within the meaning of section 2255. If not, then Suggs does not need this court's certification under section 2255(h) for the district court to have jurisdiction to hear the motion. We have held that that such motions after resentencing are not second or successive when they allege errors made during the resentencing, but they are second or successive when they challenge the underlying conviction. See Dahler v. United States, 259 F.3d 763 (7th Cir.2001), which adopted as a holding what we had said in dicta in Walker v. Roth, 133 F.3d 454 (7th Cir.1997).

In Magwood v. Patterson, however, the Supreme Court held that a petition challenging a death sentence was not second or successive where the second petition followed a resentencing after a remand from a successful initial petition, even though the same challenge to the sentence also could have been made to the original sentence. 561 U.S. ––––, 130 S.Ct. 2788, 177 L.Ed.2d 592 (2010). We conclude that because Magwood expressly declined to extend its holding to the facts before us here, it did not disturb our circuit's precedent, Dahler, which applies to Suggs' motion and required the district court to dismiss it as second or successive.¹

In Walker v. Roth, 133 F.3d 454 (7th Cir.1997), we considered a petition filed after resentencing that challenged only aspects of the resentencing hearing. We held that such a petition was not second or successive. We reasoned that the petitioner could not have raised the issues he presented in the second petition in his initial petition because he challenged the “constitutionality of a proceeding which obviously occurred after he filed, and obtained relief, in his first habeas petition.” We noted that his second petition did not challenge his original conviction, and we commented: “Of course, had Walker sought to challenge aspects of his conviction the district court would have been correct in dismissing his petition as successive.” Id. at 455 & n. 1, citing Nunez v. United States, 96 F.3d 990 (7th Cir.1996).

In Dahler v. United States, 259 F.3d 763 (7th Cir.2001), we faced exactly that situation. The...