Ellzey v. U.S.

• Citation: 324 F.3d 521
• Decision Date: 31 March 2003
• Docket Number: No. 02-3633.,02-3633.
• Parties: William P. ELLZEY, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

324 F.3d 521

William P. ELLZEY, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

No. 02-3633.

United States Court of Appeals, Seventh Circuit.

Submitted January 31, 2003.

Decided March 31, 2003.

Rehearing and Rehearing En Banc Denied April 28, 2003.

COPYRIGHT MATERIAL OMITTED

William P. Ellzey (Submitted), Terre Haute, IN, Pro Se.

Timothy A. Bass (Submitted), Office of the U.S. Atty., Urbana Div., Urbana, IL, for Respondent-Appellee.

Before EASTERBROOK, EVANS, and WILLIAMS, Circuit Judges.

EASTERBROOK, Circuit Judge.

To appeal from the rejection of his collateral attack under 28 U.S.C. § 2255, William Ellzey needs a certificate of appealability. One potential problem is timeliness: we affirmed his conviction on May 10, 1999, in an unpublished order, and the petition Ellzey filed on May 8, 2000, was a placeholder. It asserts that his lawyer furnished ineffective assistance at sentencing but supplies neither factual detail nor legal elaboration. In the place provided for supporting facts and argument, Ellzey wrote: "will be amended within thirty (30) days." Ellzey filed this skeletal document to satisfy the period of limitations, with the plan of filing a real petition later — as he did on May 30, 2000. The prosecutor moved to dismiss, but the district judge held that Ellzey's original document met the statutory time limit (see § 2255 ¶ 6) and could be amended afterward not only with details about the sixth amendment theory but also to add new lines of argument, such as a challenge based on Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), which was not decided until June 2000. Later the district judge denied the petition on the merits. See 210 F.Supp.2d 1046 (C.D.Ill.2002). Before considering whether Ellzey is entitled to a certificate of appealability, see 28 U.S.C. § 2253(c), we must decide which, if any, of his legal theories is timely.

One line from the motion to dismiss sums up the prosecutor's position: "Unfortunately for [Ellzey], there is no provision under 28 U.S.C. § 2255 for the filing of a `Notice of Intent to File 2255 Petition'". That's right. Cases such as Holman v. Gilmore, 126 F.3d 876, 879-80 (7th Cir. 1997), and Gosier v. Welborn, 175 F.3d 504, 506 (7th Cir.1999), hold that only documents attacking the conviction on the merits count as collateral attacks. Others — whether motions for the appointment of counsel or requests to save a place in line — do not suffice. The ninth circuit handled this differently. See Calderon v. United States District Court, 163 F.3d 530 (9th Cir.1998) (en banc). The technical question in Holman, Gosier, and Calderon was whether an application for appointment of counsel should be treated as a collateral attack for purposes of the rule that proceedings commenced before April 24, 1996, are not affected by amendments to § 2254(d) made on that date. But separating a collateral attack from other motions matters to timeliness under the Anti-terrorism and Effective Death Penalty Act as well as to the question whether the AEDPA governs. The Supreme Court now has sided with Holman and Gosier, disapproving the resolution of Calderon. See Woodford v. Garceau, ___ U.S. ___, 123 S.Ct. 1398, 155 L.Ed.2d 363 (2003). A "notice of intent to file" or its equivalent therefore is not a collateral attack.

Must a document containing neither facts nor reasons be treated the same as a "notice of intent to file"? The prosecutor assumes that the answer is yes but does not explain why. We have held that any paper asking for the relief provided by § 2255 ¶ 1 is a motion under § 2255, without regard to its caption or other details. See, e.g., United States v. Evans, 224 F.3d 670 (7th Cir.2000); Romandine v. United States, 206 F.3d 731 (7th Cir.2000). These decisions represent the flip side of Holman and Gosier, and their approach too thus gains support from Woodford. Ellzey's filing was short on facts and argument, but it did assert ineffective assistance of counsel at sentencing, a ground within § 2255 ¶ 1. It asked for relief, not just for more time to file a petition (or for a lawyer to assist in preparing a petition, the subject of Woodford).

True enough, Ellzey's original filing did not comply with Rule 2(b) of the Rules Governing Section 2255 Proceedings for the United States District Courts:

The motion ... shall specify all the grounds for relief which are available to the movant and of which he has or, by the exercise of reasonable diligence, should have knowledge and shall set forth in summary form the facts supporting each of the grounds thus specified. It shall also state the relief requested.

Rule 2(b) departs from Fed.R.Civ.P. 8 by requiring fact pleading. Because Ellzey's filing did not comply with Rule 2(b), it could have been returned by the district court under Rule 2(d): "If a motion received by the clerk of a district court does not substantially comply with the requirements of rule 2 or rule 3, it may be returned to the movant, if a judge of the court so directs, together with a statement of the reason for its return." A document returned under Rule 2(d) would not satisfy the period of limitations. Returned documents don't count as petitions, which usually is good for prisoners because it means that a new document that satisfies Rule 2(b) is not a second or successive petition. See Benton v. Washington, 106 F.3d 162 (7th Cir.1996). But by using the word "may" Rule 2(d) gives district judges an option, not a duty. Ellzey's document was not returned. It stayed on the docket and was amended. As amended, it satisfies Rule 2(b). An amended petition is not treated as a new one; otherwise every amendment would be a forbidden "second or successive" petition, a position we have rejected. See Johnson v. United States, 196 F.3d 802 (7th Cir.1999). So the time requirement of § 2255 ¶ 6 has been met. Still, a prisoner should think twice before emulating Ellzey: if the district judge returns the document under Rule 2(d), time may run out before the prisoner can get a proper petition on file.

As it happens, Ellzey's maneuver was unnecessary. Ellzey, the prosecutor, and the district judge all thought that, because Ellzey did not seek certiorari following the affirmance of his conviction, he had exactly one year from the date of our decision to commence collateral proceedings. That is not correct. A prisoner has one year from "the date on which the judgment of conviction becomes final". 28 U.S.C. § 2255 ¶ 6(1). We concluded in Gendron v. United States, 154 F.3d 672 (7th Cir.1998), that this means one year from the date the appellate mandate issues. In Clay v. United States, ___ U.S. ___, 123 S.Ct. 1072, 155 L.Ed.2d 88 (2003), the Supreme Court held that finality occurs when the time to seek certiorari expires (69 days after the mandate, for a litigant who did not seek rehearing or an extension of time). Even if the amendment of May 30 were treated as the "real" collateral attack, that is timely under Gendron (our mandate issued on June 1, 1999) and thus necessarily is timely under Clay too (the time to seek certiorari expired on August 8, 1999).

Still, this does not resolve the question whether all of Ellzey's legal theories are properly presented. The filing on May 8 said that counsel's performance with respect to sentencing was subpar; by May 30 the list of grievances had expanded to the sufficiency of the indictment and the wisdom of going to trial (both of which Ellzey wanted to get at by complaining that his lawyer did not make the right arguments and did not do more to induce him to strike a plea bargain); by the time the district court denied the petition, further amendments had elaborated on these themes and added arguments based on Apprendi. Although the district judge did not discuss the propriety of these extensions, several courts of appeals have concluded that a petition may not be amended, more than a year after the conviction has been final, to add legal theories unrelated to those placed at issue before the period of limitations expired. See United States v. Hicks, 283 F.3d 380, 388 (D.C.Cir. 2002); United States v. Thomas, 221 F.3d 430, 436 (3d Cir.2000); United States v. Pittman, 209 F.3d 314 (4th Cir.2000). If these decisions are right, then the Apprendi-based arguments, at least, came too late.

Amendments to the pleadings are not covered by the collateral-attack rules. Rule 12 of the collateral-attack rules thus sends us to the Rules of Civil Procedure for the closest match — to be precise, Fed. R.Civ.P. 15(c), which speaks directly to the question whether an amendment to the complaint relates back for the purpose of the period of limitations. See Rodriguez v. United States, 286 F.3d 972, 981 (7th Cir.2002). Elements of civil practice sometimes must be modified to match special features of collateral-attack practice, but statutes of limitations are ubiquitous in ordinary civil litigation over torts and contracts. Nothing in the nature of the limitations rules enacted as part of the AEDPA requires courts to depart from the way Rule 15(c) handles relation back for other periods of limitations.

Rule 15(c) tells us that an amendment to the pleadings relates back, for limitations purposes, when:

(1) relation back is permitted by the law that provides the statute of limitations applicable to the action, or

(2) the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, or

(3) the amendment changes the party or the naming of the party against whom a claim is asserted if the foregoing provision (2) is satisfied and, within the period provided by Rule 4(m) for service of the summons and complaint, the party to be brought in by amendment (A) has received such notice of the institution of the action that the party will not be prejudiced in maintaining a defense on the merits, and (B) knew or should...