Dahler v. U.S., 01-2591

• Decision Date: 17 July 2001
• Docket Number: No. 01-2591,01-2591
• Citation: 259 F.3d 763
• Parties: (7th Cir. 2001) David S. Dahler, Applicant, v. United States of America, Respondent
• Court: U.S. Court of Appeals — Seventh Circuit

Page 763

259 F.3d 763 (7th Cir. 2001)

David S. Dahler, Applicant, v. United States of America, Respondent.

No. 01-2591

In the United States Court of Appeals For the Seventh Circuit

Submitted June 22, 2001

Decided July 17, 2001

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

Before Cudahy, Posner, and Easterbrook, Circuit Judges.

Easterbrook, Circuit Judge.

David Dahler was convicted in 1995 of possessing firearms despite his status as a felon. This violated 18 U.S.C. sec. 922(g), which normally carries a maximum penalty of ten years' imprisonment. 18 U.S.C. sec. 924(a)(3). Because Dahler had at least three independent convictions for crimes of violence, however, sec. 924(e)(1) branded him an armed career criminal and raised the maximum sentence to life imprisonment, with a mandatory minimum of 15 years. See United States v. Jackson, 835 F.2d 1195, 1197 (7th Cir. 1987). The district judge sentenced Dahler to 276 months' (23 years') imprisonment. We affirmed in an unpublished order. United States v. Dahler, No. 95-3007 (7th Cir. May 31, 1996). Dahler then filed a collateral attack under 28 U.S.C. sec. 2255, contending among other things that a restoration of civil rights under state law removed one of his prior convictions from the list of those that had justified the recidivist enhancement. We agreed with this conclusion, vacated Dahler's sentence, and remanded so that the district court could determine whether Dahler's other convictions expose him to an enhanced penalty. Dahler v. United States, 143 F.3d 1084 (7th Cir. 1998). On remand the district court concluded that at least three prior convictions for crimes of violence remain, and it reimposed the 276-month sentence. We affirmed, United States v. Dahler, 171 F.3d 441 (7th Cir. 1999), bringing to an end Dahler's first collateral attack.

Now he wants to commence a second. By application under sec. 2255 para. 8, Dahler asks us to authorize a new collateral attack on his sentence. See also 28 U.S.C. sec. 2244(b). Dahler's theory this time is that the due process clause of the fifth amendment, as understood in Apprendi v. New Jersey, 530 U.S. 466 (2000), requires a jury to determine beyond a reasonable doubt whether he has the record of convictions that renders him eligible for the armed career criminal enhancement. Before considering whether this meets the statutory standards for successive collateral litigation, we must decide whether we are the court authorized to apply those standards.

Prior appellate approval is required only for a "second or successive motion" under sec. 2255. Counting motions can be difficult. See Johnson v. United States, 196 F.3d 802 (7th Cir. 1999). Dahler has had one collateral attack--a countable challenge, as it was decided on the merits, see Burris v. Parke, 95 F.3d 465 (7th Cir. 1996) (en banc)--but is entitled to another to the extent he attacks a different conviction or sentence. One substantive chance per judgment is the norm under sec. 2255 para. 8 and sec. 2244(b). See Walker v. Roth, 133 F.3d 454 (7th Cir. 1997); In re Page, 170 F.3d 659 (7th Cir.), on rehearing, 179 F.3d 1024 (1999). Dahler has only one conviction for violating sec. 922(g), but he has been sentenced twice: once in 1995, and again in 1998 following our remand. Dahler received the same term of imprisonment, but it is clear in principle--and required by our holding in Walker--that he has one chance to wage a collateral attack (without needing appellate approval) challenging any constitutional errors made in that resentencing proceeding.

Yet Dahler does not want to present a constitutional objection to an error newly made in 1998. He seeks relief from sentencing as an armed career criminal, and the contention he now advances--that his eligibility for recidivist sentencing should have been determined by a jury at his trial--is not something that was introduced by his resentencing in 1998. The choice between judge and jury (and between the preponderance and reasonable- doubt standards) was one made in 1995, and nothing changed between the sentencing in 1995 and the resentencing in 1998. The argument Dahler now seeks to present is one he could have raised at trial, on appeal from the 1995 sentence, in the district court on remand, and on the 1999 appeal from the decision on remand. Neither the language of sec. 2255 para. 8 nor the holding of Walker requires us to treat Dahler's proposed challenge as an initial collateral attack. Walker dealt only with a challenge to matters that occurred at resentencing; it did not address any claims that could have been raised before the resentencing.

United States v. Smith, 241 F.3d 546 (7th Cir. 2001), establishes that contentions arising from the trial and initial sentence must be raised as soon as possible. Smith was sentenced in 1992 and resentenced in 1997 following an amendment to the Sentencing Guidelines. He argued on appeal that the sentence should be cut still further in light of Apprendi because the jury had not determined the kind and weight of drugs he distributed. We looked straight through the resentencing in 1997--a proceeding that could not alter the allocation of responsibility between judge and jury at trial--to treat what was nominally an appeal from the 1997 sentence as a collateral attack on the 1992 conviction and sentence. After concluding that the issue had not been properly raised in 1992, we applied the cause-and-prejudice standard to what we deemed a collateral attack. Smith thus establishes that a belated challenge to events that precede a resentencing must be treated as a collateral attack on the original conviction and sentence, rather than as an initial challenge to the latest sentence. By that standard this is Dahler's second collateral attack, for he could have raised, long before 1998, the contention he now seeks to present.

This distinction between challenges to events that are novel to the resentencing (and will be treated as initial collateral attacks) and events that predated the resentencing (and will be treated as successive collateral attacks) has been adopted by every other circuit that has considered the subject. See, e.g., United States v. Barrett, 178 F.3d 34, 44-45 (1st Cir. 1999); Pratt v. United States, 129 F.3d 54, 61-62 (1st Cir. 1997); Esposito v. United States, 135 F.3d 111, 112-14 (2d Cir. 1997); In re Taylor, 171 F.3d 185, 187-88 (4th Cir. 1999); Barapind v. Reno, 225 F.3d 1100, 1112 (9th Cir. 2000). These courts differ a little in phraseology. For example,...