Brannigan v. U.S.A.

• Decision Date: 20 April 2001
• Docket Number: No. 01-1335,01-1335
• Citation: 249 F.3d 584
• Parties: (7th Cir. 2001) Wayne A. Brannigan, Applicant, v. United States of America, Respondent
• Court: U.S. Court of Appeals — Seventh Circuit

Page 584

249 F.3d 584 (7th Cir. 2001)

Wayne A. Brannigan, Applicant, v. United States of America, Respondent.

No. 01-1335

In the United States Court of Appeals For the Seventh Circuit

Submitted February 12, 2001

Decided March 14, 2001

Opinion Issued April 20, 2001

On Application for an Order Authorizing a Second or Successive Petition for Collateral Review

[Copyrighted Material Omitted] Before Cudahy, Posner, and Easterbrook, Circuit Judges.

Easterbrook, Circuit Judge.

Ever since his conviction of drug offenses in 1997, Wayne Brannigan has been carrying on a rear-guard action. We affirmed his conviction and sentence (along with those of his co-conspirators) in an unpublished order. United States v. Jones, No. 97-2262 (7th Cir. May 7, 1998). Brannigan filed a collateral attack under 28 U.S.C. sec.2255. After the district court denied his petition, we declined to issue a certificate of appealability. Brannigan v. United States, No. 00-1628 (7th Cir. July 21, 2000). The ink was hardly dry on that order before Brannigan asked this court for permission to file a second collateral attack. See 28 U.S.C. sec.2255 para.8. We denied that application. Branigan [sic] v. United States, No. 00-3075 (7th Cir. Sept. 1, 2000). Now Brannigan has filed a successive application for permission to commence collateral litigation. That application, too, was denied with prejudice last month, thus complying with the deadline in 28 U.S.C. sec.2244(b)(3)(D), in a short order noting that we would later issue an opinion with a more complete explanation. (Section 2255 para.8 incorporates sec.2244(b).) This opinion fulfils that promise.

Brannigan is among the many prisoners who believes that Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000), requires every sentence for a drug offense to be reduced. We warned in Talbott v. Indiana, 226 F.3d 866, 869 (7th Cir. 2000), that hasty action on this belief may be costly, because an unfounded petition invoking Apprendi may squander the prisoner's opportunity to file one collateral attack as of right (subjecting future challenges to the gatekeeping provisions of sec.2244(b) and sec.2255 para.8), or may lead to problems under sec.2244(b)(1): "A claim presented in a second or successive habeas corpus application . . . that was presented in a prior application shall be dismissed." A bad Apprendi argument in one application thus may scuttle a better Apprendi argument later. That is exactly what has happened to Brannigan. His earlier application for permission to file a second collateral attack contended that Apprendi foreclosed the district court's decision to add two levels to his offense seriousness under the Sentencing Guidelines for possessing a weapon in the course of his drug dealing. (The extra levels led to his sentence of life imprisonment rather than, say, 360 months.) Brannigan contended that this increase was improper because he had not been convicted of a firearms offense. Sometimes we protect prisoners from the consequences of ill-considered Apprendi contentions by dismissing their applications without prejudice, for the Supreme Court has not declared Apprendi to be retroactively applicable on collateral attack. See Hernandez v. United States, 226 F.3d 839 (7th Cir. 2000). But when an argument invoking Apprendi would fail even if that case turns out to be fully retroactive, we deny it on the merits in order to forestall a further round of litigation if the Supreme Court later should decide in favor of retroactivity. That was the fate of Brannigan's initial application. Apprendi does not require facts pertinent to application of the Sentencing Guidelines to be determined under an elevated burden of persuasion; it holds only that circumstances affecting the statutory maximum punishment must be established beyond a reasonable doubt to the satisfaction of the trier of fact. See Apprendi, 120 S. Ct. at 2362-63; United States v. Patterson, No. 97-3159 (7th Cir. Mar. 2, 2001); Talbott, 226 F.3d at 869. See also Edwards v. United States, 523 U.S. 511 (1998).

Brannigan's current argument--that the jury rather than the district judge should have determined how much cocaine the conspirators distributed--is closer to the holding of Apprendi. He errs in thinking that Apprendi requires the full weight of drugs, which the district judge determined to be more than 1.5 kilograms of crack, to be ascertained beyond a reasonable doubt by the jury. Distributing even 50 grams of crack exposes a person to life imprisonment. 21 U.S.C. sec.841(b)(1)(A)(iii). Once the trier of fact concludes beyond a reasonable doubt that the defendant distributed 50 grams of crack, the district judge decides by a preponderance of the evidence the full extent of relevant conduct for purposes of sentencing. Still, Brannigan has the makings of an Apprendi claim because the jury was not asked to resolve the 50-gram question. Brannigan's claim is weak, not only because the district judge found that the conspiracy entailed at least 1.5 kilograms of crack (making it unlikely that a jury would have balked at finding a mere 50 grams), but also because, even if Apprendi turns out to be retroactive, to prevail on any claim first raised on collateral attack the petitioner must establish "cause" and "prejudice," which is more difficult than establishing "plain error." See United States v. Frady, 456 U.S. 152, 162-66 (1982); United States v. Smith, No. 99-4253 (7th Cir. Feb. 8, 2001). Yet Brannigan has at least the kernel of an Apprendi argument, one whose resolution we would defer under Hernandez but for the operation of sec.2244(b)(1).

Section 2244(b)(1) says that a "claim" presented in a prior application is forever closed. What is a "claim" as sec.2244(b)(1) uses that word? The answer is elusive. Defining the "claim" for purposes of preclusion in civil litigation has been a complex process, and it is tempting to borrow the answer--that a single set of facts producing a single injury is one "claim" no matter how many legal theories can be invoked in support of relief. E.g., Herrmann v. Cencom Cable Associates, Inc., 999 F.2d 223 (7th Cir. 1993). But this can't be the right way to understand "claim" in sec.2244(b)(1), for then one crime would produce one "claim" no matter how many things had gone wrong. This would imply that every successive collateral attack on a single conviction and sentence must be dismissed. Yet sec.2244(b) and sec.2255 para.8 suppose that multiple collateral attacks are possible. Thus it is essential to define the "claim" as a challenge to a particular step in the case, such as the introduction of a given piece of evidence, the text of a given jury instruction, or the performance of counsel. That's essentially how Bennett v. United States, 119 F.3d 470, 471-72 (7th Cir. 1997), understands it. If, for example, the defendant invokes the fourth amendment to protest the introduction of one item of evidence, a later contest to the same evidence based on the fifth or sixth amendment is just another iteration of the same claim. "A rehashed claim is not a new claim." Bennett, 119 F.3d at 472. In this respect the civil definition of a "claim" remains instructive; in both civil and criminal practice it is the underlying events, rather than the legal arguments advanced to obtain relief from those events, that demarcate a "claim." The criminal practice differs because for collateral attack the "events" in question are what transpired in court, rather than the out-of-court events that precipitated the litigation. But the principle that new legal arguments about the same events do not amount to a new claim remains. Accord, Babbitt v. Woodford, 177 F.3d 744, 746 (9th Cir. 1999); McDonald v. Bowersox, 125 F.3d 1183, 1185-86 (8th Cir. 1997). (In re Medina, 109 F.3d 1556, 1565 (11th Cir. 1997), assumes, to the contrary, that every new legal argument is a new "claim" for purposes of sec.2244(b)(1), but the court did not give a reason, and the subject apparently had not been debated by the litigants.)

Brannigan's sentence was determined by the table in the Sentencing Guidelines (U.S.S.G. sec.5A) that combines and specifies the effect of all calculations that go into the offense level and criminal history. His current position, however, depends on disgregating that process. In his previous application Brannigan complained about one of the adjustments (two levels for possessing a weapon); now he uses Apprendi to complain about the relevant-conduct calculation (that is, the quantity of cocaine involved). Each petition concerns the same sentence, and the legal theory used to challenge that sentence is the Apprendi principle. It would cut matters entirely too fine to divide into separate "claims" each element of the calculation under the Sentencing Guidelines. That would fracture a single sentence into dozens of "claims," one for each prior conviction that affects the criminal history level plus one for each offense-severity level. For a calculation that in general is not supposed to allow any collateral attack, see Scott v. United States, 997 F.2d 340 (7th Cir. 1993) (the Sentencing Guidelines are not "laws" for purposes of sec.2255, so errors in calculating the sentence generally cannot be raised on collateral attack), this would be overboard. Section 2244(b)(1), like the Antiterrorism and Effective Death Penalty Act (AEDPA) of which it is a part, is designed to promote finality, not to illuminate a route to pursuing scores of collateral attacks.

Brannigan's best argument would be that, although the last time around he disputed the calculation under the Sentencing Guidelines, now he is disputing the district court's assumption that the maximum lawful sentence is life imprisonment rather than, say, the 20-year maximum for distributing any detectable quantity of cocaine. See 21 U.S.C. sec.841(b)(1)(C). This is not a distinction on which Brannigan relies-- recall that he thinks Apprendi applicable to the whole of the...