Johnson III v. USA.
| Decision Date | 10 November 1999 |
| Docket Number | No. 97-2519,97-2519 |
| Parties | (7th Cir. 1999) Monroe Johnson III, Petitioner-Appellant, v. United States of America, Respondent-Appellee |
| Court | U.S. Court of Appeals — Seventh Circuit |
Appeal from the United States District Court for the Southern District of Illinois. No. 95-941-WDS--William D. Stiehl, Judge.
Before Easterbrook, Manion, and Rovner, Circuit Judges.
Following his plea of guilty to distributing cocaine and carrying a firearm during and in relation to that crime, Monroe Johnson was sentenced to 130 months' imprisonment. He did not appeal. In May 1994, about a year after imposing sentence, the district judge took ten months off on the prosecutor's motion under Fed. R. Crim. P. 35(b). In December 1995 Johnson, represented by counsel, filed a petition under 28 U.S.C. sec.2255 seeking relief on four grounds; a few months later counsel added a fifth, based on Bailey v. United States, 516 U.S. 137 (1995). On April 24, 1996, the day the President signed the Antiterrorism and Effective Death Penalty Act, the district judge rejected four of Johnson's arguments but reserved decision on the Bailey ground. Before the judge could make a final decision, Johnson attempted to amend his petition a second time, asking the court to consider four additional theories of entitlement to collateral relief. The judge balked, concluding that, once the AEDPA took effect, any proposed amendment to a collateral attack is a "second or successive" collateral attack that requires prior appellate approval under 28 U.S.C. sec.sec. 2244(b), 2255 para.8. In February 1997 the district judge rejected the Bailey theory and entered a final decision leaving the 120-month sentence in place. Johnson's appeal is limited to the grounds that the district court refused to consider. Although the AEDPA does not apply to Johnson's petition, filed as it was before April 24, 1996, see Lindh v. Murphy, 521 U.S. 320 (1997), it does apply to later-filed petitions; so if the proposed amendment must be treated as a new collateral attack, then the AEDPA is fully applicable to it.
Paragraph 8 of sec.2255, as amended by the AEDPA, provides that
A second or successive motion must be certified as provided in section 2244 by a panel of the appropriate court of appeals to contain--
(1) newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense; or
(2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.
Johnson cannot meet these substantive criteria; he does not rely on newly discovered evidence demonstrating his innocence or a new rule of constitutional law made retroactive by the Supreme Court. We therefore could not authorize him to file a second or successive motion. But of course this does not matter unless the proposed amendments to his pre-AEDPA motion are "second or successive". The district court thought that they are, but we do not see how a proposed amendment to one's first motion can be deemed a "second or successive" motion. Perhaps a second, independent motion filed while the first was sub judice could be deemed "second or successive"; but a proposal to amend one's first motion is not a "second" motion.
Identifying "second or successive" motions is easy only in the paradigm case--the prisoner files a motion, loses on the merits, exhausts appellate remedies, and then files another motion. That sequence is conclusive, even though the second motion presents grounds that could not have been raised earlier. Burris v. Parke, 95 F.3d 465 (7th Cir. 1996) (en banc); In re Page, 179 F.3d 1024 (7th Cir. 1999). But suppose a prisoner files a motion under sec.2255, prevails, and is retried and resentenced. Is any later collateral attack a "second" motion? We have held that the count restarts with each new judgment. Walker v. Roth, 133 F.3d 454 (7th Cir. 1997). Even when the judgment is unaltered, a failed motion may not count. If a state petitioner files prematurely (before exhausting state remedies), or files a procedurally defective document that is returned for revisions, then the abortive request for relief is disregarded for purposes of sec.2244(b) and sec.2255 para.8. See O'Connor v. United States, 133 F.3d 548 (7th Cir. 1998); Benton v. Washington, 106 F.3d 162 (7th Cir. 1996). See also Stewart v. Martinez-Villareal, 523 U.S. 637 (1998). But if the prisoner gets a collateral attack under way and then abandons it in the face of looming defeat, that proceeding counts because the prisoner had an opportunity for a decision. Felder v. McVicar, 113 F.3d 696 (7th Cir. 1997). Drawing these lines can be difficult. When does withdrawal of a petition acknowledge defeat, and when does it show only that the filing was unripe or procedurally defective? See Garrett v. United States, 178 F.3d 940 (7th Cir. 1999). What happens if a motion is filed, dismissed as premature (and thus does not count), and the motion filed after exhaustion of state remedies includes additional contentions? We would be tempted to say that a motion that does not count is ignored, so it does not matter what issues the prisoner had put in (or omitted from) it, but several courts of appeals have held otherwise, and the issue is before the Supreme Court. Slack v. McDaniel, No. 98-6322 ().
Just as a second filing may be treated as an initial motion when the first was not eligible for decision on the merits, so additional filings in the first collateral attack may be treated as "second or successive" petitions when the first has reached a final decision. Suppose a collateral attack has been fully adjudicated, a final judgment has been entered, and the time for appeal has expired. The prisoner then files a motion under Fed. R. Civ. P. 60(b) advancing new theories of relief. Such a maneuver is a transparent attempt to avoid the need for prior appellate approval of a second collateral attack, and we concluded in Burris v. Parke, 130 F.3d...
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