Vitrano v. U.S.

• Decision Date: 21 June 2011
• Docket Number: No. 10–2357.,10–2357.
• Citation: 643 F.3d 229
• Parties: Thomas P. VITRANO, Petitioner–Appellant,v.UNITED STATES of America, Respondent–Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

643 F.3d 229

Thomas P. VITRANO, Petitioner–Appellant,

v.UNITED STATES of America, Respondent–Appellee.

No. 10–2357.

United States Court of Appeals, Seventh Circuit.

Argued Jan. 12, 2011.Decided June 21, 2011.

Robert K. O'Reilly (argued), Attorney, Ademi & O'Reilly, Cudahy, WI, for Petitioner–Appellant.Gordon P. Giampietro (argued), Attorney, Office of the United States Attorney, Milwaukee, WI, for Respondent–Appellee.Before KANNE and TINDER, Circuit Judges, and HERNDON, District Judge. ^*TINDER, Circuit Judge.

The appellant, Thomas P. Vitrano, is no stranger to this court. In fact, this is his third stop here (so far) as a result of a single but admittedly illegal possession of a shotgun. Several compounding events have occurred since Vitrano was last before us in 2007. He found (or fabricated) a document with the potential to upend his armed career criminal status and passed it along to his attorney, who died before authentication of the document was completed. Vitrano then found (or fabricated) another such document, which he used as the primary basis for a pro se 28 U.S.C. § 2255 motion. The government examined both documents and not only opposed his § 2255 motion but also filed new criminal charges against him relating to the allegedly fraudulent nature of the documents. In the meantime, the Supreme Court clarified the landscape of the armed career criminal statute, see Chambers v. United States, 555 U.S. 122, 129 S.Ct. 687, 172 L.Ed.2d 484 (2009), and Vitrano moved to amend his § 2255 motion to take advantage of the new ruling. The government decried Vitrano's motion to amend as an impermissible “second or successive” § 2255 motion. The district court agreed and dismissed Vitrano's case. Though we are not without reservations about the premises of Vitrano's § 2255 motion, we conclude that the district court erred by not allowing the proceedings to run their course before deeming a subsequent filing “second or successive.” We therefore vacate and remand.

Following his plea of guilty to possessing a firearm as a felon, 18 U.S.C. § 922(g)(1), while subject to a domestic abuse injunction to boot, id. § 922(g)(8)(B), Vitrano was sentenced to 120 months' imprisonment, the statutory maximum, see 18 U.S.C. § 924(a)(2). The government challenged Vitrano's sentence, arguing that he should have instead faced a statutory minimum of at least 180 months' imprisonment because he had three prior “violent felony” convictions that rendered him subject to the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(1). (The relevant prior convictions were for escape and reckless endangerment.) We agreed, see United States v. Vitrano, 405 F.3d 506, 510 (7th Cir.2005), and remanded the case so the district court could resentence Vitrano pursuant to the ACCA. Vitrano's Guidelines range under the ACCA was 235–293 months, but the district court imposed an above-Guidelines sentence of 360 months' imprisonment after hearing evidence that Vitrano sent an ex-girlfriend live pipe bombs as a “birthday present” and brutally abused other women. Vitrano appealed, and we affirmed. See United States v. Vitrano, 495 F.3d 387 (7th Cir.2007).

Dissatisfied with the threefold increase in his sentence, Vitrano moved to vacate it pursuant to 28 U.S.C. § 2255. In his pro se filing, Vitrano asserted that his Fifth Amendment rights had been violated and that he had received ineffective assistance of counsel at various stages of his criminal proceeding. He also contended that the district court erred in sentencing him as an armed career criminal. Vitrano claimed that he had recently located a discharge certificate fully restoring the civil rights he lost in connection with a 1977 conviction for reckless endangerment; if valid, such a certificate would render the conviction uncountable for ACCA purposes regardless of whether it constituted a “violent felony.” See 18 U.S.C. § 921(a)(20); Buchmeier v. United States, 581 F.3d 561, 563–64 (7th Cir.2009) (en banc). Vitrano explained that his friend and former business associate, Scott Valona, discovered Vitrano's original discharge certificate among some business records around the time Vitrano's second appeal was coming to a close. According to an attached affidavit from Valona, Valona found the certificate and, at Vitrano's request, sent a copy to Vitrano and the original to Vitrano's attorney. ¹ Vitrano's attorney sent the alleged original to the Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”) for authentication and testing, and it remained there at the time Vitrano filed his § 2255 motion.

The district court ordered the government to respond to Vitrano's ineffective assistance and ACCA claims. See R. Governing § 2255 Proceedings for the U.S. Dist. Cts. 4(b). The government encountered some difficulty in doing so because Vitrano refused to turn over the pertinent portions of Attorney Barrett's files. There was also another wrinkle: Vitrano now claimed that he, not the ATF, had possession of the original discharge certificate, which he had personally “laminated” with scotch tape. The government moved for discovery of these items and for permission to conduct forensic testing on both alleged discharge certificates. Because of the complexity of the ensuing discovery dispute, the district court appointed counsel for Vitrano. See id. 6(a). Vitrano continued his opposition to the government's requests through his counsel, but was ultimately unsuccessful in preventing their discovery.

The government thereafter subjected both alleged discharge certificates—the one held by the ATF and the one Vitrano laminated with clear tape—to a battery of tests. It also interviewed Attorney Barrett's former paralegal, Vitrano's friend Scott Valona, and several longtime employees of the Wisconsin Department of Corrections, the purported issuer of the certificates. The government's forensic tests, coupled with Valona's recantation of his earlier affidavit and testimony from the other witnesses, led it to conclude that both discharge certificates were “provably fake”—“inconsistent with the standard forms submitted in: format, printing method, form designation, font size, and paper type.” (The record includes many more colorful details about the certificates that emerged from the government's investigation, but we need not delve into them for the purposes of this appeal.) Not surprisingly, the government filed an explicit opposition response to Vitrano's § 2255 motion, and shortly thereafter obtained an indictment charging Vitrano with perjury, 18 U.S.C. § 1623(a), and two counts of corrupt influence, 18 U.S.C. § 1512(b)(1) & (c)(2), in connection with the allegedly forged discharge certificates.

Upon learning of these new criminal charges, the district court sua sponte ordered the proceedings held in abeyance until the criminal case was resolved. After about six months, the district judge, at the request of another district judge who was presiding over the forged certificate criminal case,² lifted the stay and “invite[d]” Vitrano to file a reply brief in support of his § 2255 motion. (The stay had been entered before the time allowed for filing a reply had expired.)

Vitrano instead sought leave to amend his § 2255 motion pursuant to Federal Rule of Civil Procedure 15(a). In his motion to amend and accompanying brief in support, Vitrano invoked Chambers v. United States, 555 U.S. 122, 129 S.Ct. 687, 172 L.Ed.2d 484 (2009), and contended that his escape conviction should not have been considered a “violent felony” for ACCA purposes. Vitrano also challenged the propriety of treating his reckless endangerment convictions as violent felonies. He included a proposed amended § 2255 motion with these filings; it made no mention of ineffective assistance of counsel or the alleged discharge certificates.

The government opposed Vitrano's motion to amend, contending that it was in substance a second or successive § 2255 motion over which the district court lacked jurisdiction absent certification from this court. See 28 U.S.C. § 2255(h); id. § 2244(b)(3). The government argued that by not filing a reply to its scathing response to his initial § 2255 filing, Vitrano had abandoned the motion “in the face of looming defeat,” Johnson v. United States, 196 F.3d 802, 804 (7th Cir.1999) (citing Felder v. McVicar, 113 F.3d 696 (7th Cir.1997)), and was therefore barred from filing what was effectively a second § 2255 motion without first obtaining our permission, see 28 U.S.C. § 2255(h); R. Governing § 2255 Proceedings for the U.S. Dist. Cts. 9.

The district court agreed with the government and simultaneously dismissed Vitrano's original § 2255 motion as abandoned and denied his motion to amend as an unauthorized second or successive collateral attack. The district court also denied Vitrano's request for a certificate of appealability, reasoning that no certificate could issue with respect to Vitrano's attempted amendment because it was an unauthorized successive collateral attack. See Sveum v. Smith, 403 F.3d 447, 448 (7th Cir.2005) (per curiam). Vitrano then sought a certificate of appealability from this court. We granted his request and invited the parties to brief both the substantive Chambers issue and the issue of whether Vitrano's motion to amend was in fact a successive petition over which the district court lacked jurisdiction. We need only concern ourselves with the latter here.

Under the Anti–Terrorism and Effective Death Penalty Act (“AEDPA”), prisoners are entitled to a single unencumbered opportunity to pursue collateral review. The AEDPA prohibits prisoners from filing a second or successive § 2255 motion unless they obtain certification to do so from the court of appeals. See 28 U.S.C. § 2255(h). The problem is that the AEDPA does not define “second or successive.” And counting from one to two in this context is not quite as elementary as it may seem; numerically second filings only trigger...