O'Connor v. U.S.

• Decision Date: 09 January 1998
• Docket Number: No. 97-2278,97-2278
• Citation: 133 F.3d 548
• Parties: James A. O'CONNOR, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 548

133 F.3d 548

James A. O'CONNOR, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

No. 97-2278.

United States Court of Appeals, Seventh Circuit.

Submitted Dec. 22, 1997.

Decided Jan. 9, 1998.

Howard B. Eisenberg (submitted), Milwaukee, WI, for Petitioner-Appellant.

Mel S. Johnson, Office of the United States Attorney, Milwaukee, WI, for Respondent-Appellee.

Before BAUER, EASTERBROOK, and MANION, Circuit Judges.

EASTERBROOK, Circuit Judge.

After his conviction for racketeering was affirmed, 953 F.2d 338 (7th Cir.1992), James O'Connor filed motions under Fed.R.Crim.P. 32 and 35. More than two years ago we affirmed the order denying relief. No. 94-2381 (7th Cir. Aug. 25, 1995) (unpublished order). Next O'Connor filed a motion under Rule 33, asserting that the prosecutor had concealed exculpatory evidence. That motion, too, was denied, and we affirmed. No. 96-2992 (7th Cir. July 8, 1997) (unpublished order). Our order concluded: "If O'Connor has facts on which to base a genuine Brady claim, he may file a petition under 28 U.S.C. § 2255. But he must recognize that, under the amendments to § 2255 made by the Antiterrorism and Effective Death Penalty Act, he has only one try, and should choose wisely. (We need not consider the question whether a Rule 33 motion counts as a collateral attack for purposes of the amended 28 U.S.C. § 2244(b).)" Perhaps we should have suspected, given O'Connor's litigiousness, that by the time we wrote this he had already filed a § 2255 petition, which the district court had denied--on the sole ground that O'Connor could not pursue Rule 33 and § 2255 remedies concurrently. A judge of this court issued a certificate of appealability after the district judge declined to do so.

Our order of last July posed but did not answer the question whether post-trial motions under Rule 33 count as collateral attacks for purposes of the recent rule severely curtailing second or successive collateral attacks. See 28 U.S.C. § 2255 p 8, incorporating 28 U.S.C. § 2244. It remains open here and, as far as we can discover, throughout the federal system. One might have expected the United States to address it in this appeal. It did not. Instead the United States argues that the current § 2255 petition is "second or successive" to a § 2255 petition that O'Connor filed on January 14, 1994, and the district court dismissed shortly thereafter. The prosecutor argues that we have no alternative but to affirm under Nunez- nez v. United States, 96 F.3d 990 (7th Cir.1996), because O'Connor did not obtain our permission to commence a second § 2255 proceeding.

The United States does not tell us why the 1994 petition was dismissed and does not seem to think that the reason matters. Yet as we stressed in Felder v. McVicar, 113 F.3d 696 (7th Cir.1997), and Benton v. Washington, 106 F.3d 162 (7th Cir.1996), it is essential to know what happened to the initial petition in the district court. A petition that is "returned" as insufficient under Rule 2(e) of the Rules Governing Section 2254 Cases in the United States District Courts (or Rule 2(d) of the Rules Governing Section 2255 Proceedings for the United States District Courts) does not count as an initial petition; neither does a petition under § 2254 denied for failure to exhaust state remedies. Felder adds that a petition withdrawn or dismissed for want of prosecution may be counted as an initial petition if the petitioner gave up when things looked hopeless. The idea behind § 2255 p 8 is that a prisoner is entitled to one, but only one, full and fair opportunity to wage a collateral attack. A proceeding commenced and abandoned midway through is an opportunity squandered, but an opportunity nonetheless. O'Connor, however, did not have a chance to litigate in 1994. The district court returned his petition without a decision on the merits, ruling that a collateral attack could not be commenced while the appeal from the denial of the Rule 32 and 35 motions was pending in this court. The United States Attorney's brief did not mention this fact, and we are disappointed that the Department of Justice has asked us to rule that a prisoner has irretrievably forfeited his opportunity to obtain collateral review of his conviction, without ensuring that the initial petition satisfied the standards of Benton and Felder.

O'Connor's latest petition was thrown out of court because it was filed while the appeal from the denial of the Rule 33 motion was on our docket. As he had in 1994, the district judge remarked that only extraordinary circumstances justify entertaining a collateral attack while another proceeding that might upset the conviction is under consideration. See United States v. Robinson, 8 F.3d 398, 405 (7th Cir.1993). O'Connor argued that his petition was supported by just such a circumstance: there were only six days to go before the first anniversary of the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. 104-132, 110 Stat. 1214. That anniversary was significant for three reasons: first, the AEDPA added a one-year statute of limitations for commencing collateral attacks, see 28 U.S.C. § 2255 p 6; second, post-judgment motions (such as those under Rules 32, 33, and 35) do not suspend the period, so O'Connor had accumulated one year of "countable" time even before the AEDPA's enactment; but, third, we stated in Lindh v. Murphy, 96 F.3d 856, 866 (7th Cir.1996) (en banc), reversed on other grounds, --- U.S. ----, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997), that "no collateral attack filed by April 23, 1997, may be dismissed under § 2244(d) and the parallel provision added to 28 U.S.C. § 2255 by § 105 of the 1996 Act." O'Connor got his petition in under the wire. Young v. United States, 124 F.3d 794, 795-96 (7th Cir.1997), holds that this aspect of Lindh is unaffected by the Supreme Court's conclusion that the AEDPA's amendments to §§ 2241-55 do not apply to cases filed before April 24, 1996. So O'Connor's petition on April 17, 1997, was timely. Had he waited a few days longer it would have been too late. By denying the petition the district court has foreclosed all relief under § 2255; it is now impossible for O'Connor to commence a timely collateral attack.

The district court relied on a principle that as originally articulated was limited to direct appeals from the conviction and sentence. It makes no sense to crank up a collateral attack while a pending...