Shepeck v. U.S., 98-9079
| Decision Date | 03 August 1998 |
| Docket Number | No. 98-9079,98-9079 |
| Citation | 150 F.3d 800 |
| Parties | Gregory M. SHEPECK, Petitioner, v. UNITED STATES of America, Respondent. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Gregory M. Shepeck (submitted on briefs), Oxford, WI, for Petitioner.
Michelle A. Leslie, Office of the United States Attorney, Milwaukee, WI, for Respondent.
Before COFFEY, EASTERBROOK and KANNE, Circuit Judges.
Gregory Shepeck's trial attorney abandoned him after sentence was imposed. Shepeck asked the attorney to prosecute an appeal; the attorney did nothing. Abandonment is a violation of the sixth amendment, and the defendant is entitled as a remedy to the vacatur and reentry of judgment so that a direct appeal may be prosecuted. Castellanos v. United States, 26 F.3d 717 (7th Cir.1994). Shepeck filed a motion under 28 U.S.C. § 2255 asking for the relief prescribed by Castellanos. The district court resentenced Shepeck, and an appeal was taken--but his appellate attorney filed an Anders brief, and we dismissed the appeal after concluding that no non-frivolous issue was available. United States v. Shepeck, 129 F.3d 1268 (7th Cir.1997) (unpublished order). Now Shepeck asks for our permission to commence a second collateral attack. See 28 U.S.C. §§ 2244(b)(3), 2255 p 8. He believes that his appellate attorney furnished ineffective assistance by filing an Anders brief and that he has non-frivolous constitutional objections to his sentence (and the proceedings that led up to it).
The arguments Shepeck wants to present do not satisfy the statutory criteria for a repetitious collateral attack. But that is important only if prior appellate approval is essential, and we conclude that it is not. Although Shepeck has had one collateral attack, making the next his second in a dictionary sense, the Supreme Court held in Stewart v. Martinez-Villareal, --- U.S. ----, 118 S.Ct. 1618, 140 L.Ed.2d 849 (1998), that "second or successive" in § 2244(b) is a term of legal art. A collateral attack should be disregarded for counting purposes under this statute, the Court said, if it is dismissed on technical grounds such as failure to exhaust state remedies or unripeness. See also Benton v. Washington, 106 F.3d 162 (7th Cir.1996). Our opinion in Walker v. Roth, 133 F.3d 454 (7th Cir.1997), identifies another situation in which multiple collateral attacks fall outside §§ 2244 and 2255 p 8: when the first is successful, and the prisoner contends that new errors ensued. Walker's first collateral attack led to a directive that he be resentenced. We held that he did not need advance appellate approval to challenge the procedures that yielded his new sentence. Walker was a simple case because the events being challenged occurred after the conclusion of his first collateral attack; Martinez-Villareal fortifies our conclusion in Walker that new events may be contested in a petition that counts as the first (and therefore does not require appellate leave). Today's case is governed in part by this principle--for if Shepeck's appellate lawyer furnished ineffective assistance of counsel, that...
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