Earnest L. White, Applicant v. United States

371 F.3d 900, 2004 U.S. App. LEXIS 11693, 2004 WL 1326700

• Court: Court of Appeals for the Seventh Circuit
• Decided: June 15, 2004
• Docket: 04-2126
• Status: Published

Opinions

POSNER, Circuit Judge.

Earnest White has applied to us pursuant to 28 U.S.C. § 2244(b)(3) for leave to file a successive motion to vacate, under 28 U.S.C. § 2255, his federal criminal judgment. We cannot grant him leave if his claim was “presented in a prior application.” § 2244(b)(1). The claim (that he is not an armed career criminal) was not presented in his previous section 2255 application, but it was presented in his direct appeal from his conviction, by his lawyer, in an Anders brief. In an unpublished order we granted the lawyer’s motion to withdraw and dismissed the appeal as frivolous.

No reported appellate case addresses the question whether a direct appeal is a “prior application” within the meaning of section 2244(b)(1). The full text of the section suggests not: “A claim presented in a second or successive habeas corpus application under section 2254 that was presented in a prior application shall be dismissed.” It is natural to suppose that “prior application” means “prior such application.” But this cannot be conclusive, if only because we are dealing in this case not with an application for habeas corpus under section 2254, but with a motion to vacate sentence under section 2255, the habeas corpus substitute for federal prisoners. Section 2255 contains no provision directly corresponding to section 2244(b)(1), though it does require 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” grounds for relief similar to those that section 2244 permits to be presented in a successive application for habeas corpus even when they had not been presented in a previous one. § 2255 ¶ 8. It would be odd if Congress had intended that a federal prisoner could refile the same motion over and over again without encountering a bar similar to that of section 2244(b)(1), and we have therefore held that “prior application” in that section includes a prior motion under section 2255. Taylor v. Gilkey, 314 F.3d 832, 836 (7th Cir.2002); Bennett v. United States, 119 F.3d 468 (7th Cir.1997). So we have already moved beyond literalism; and we now take up the question whether “prior application” can be interpreted to include “direct appeal.”

Invoking the doctrine of the law of the case, the courts, including our court, forbid a prisoner to relitigate in a collateral proceeding an issue that was decided on his direct appeal. E.g., Harris v. United States, 366 F.3d 593, 595 (7th Cir.2004); Olmstead v. United States, 55 F.3d 316, 319 (7th Cir.1995); Bear Stops v. United States, 339 F.3d 777, 780 (8th Cir.2003); United States v. Aramony, 166 F.3d 655, 661 (4th Cir.1999). Relitigation is forbidden (subject to exceptions built into the law of the case doctrine, of which more later) even if it is the first collateral attack. It wouldn’t make sense to let a prisoner get around this rule by his first filing a section 2255 motion that omits one of the issues presented in his direct appeal and then following it up with a second such application that presents the issue. It would make no difference to any policy reflected in the statute to treat a second collateral attack that repeats a claim made in the first collateral attack differently from a second collateral attack that repeats a claim that the prisoner had made in the direct appeal from his conviction and sentence.

. It is true, turning back to paragraph 8 of section 2255, that to permit a second or other successive motion to be filed by a federal prisoner we must certify that it contains either “(1) newly discovered evidence that ... 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 ... that was previously unavailable.” It is difficult to see how either condition could be satisfied by a motion that merely repeated a ground that had been presented in the prisoner’s direct appeal. The same puzzle, however, attends section 2244. Subsection (b)(1), as we know, bars the filing of a second habeas corpus application that presents the same claim as the first. Subsection (b)(2) confines the grounds on which a claim omitted in-the first application can be presented in the second to ones (materially the same as those in section 2255 ¶ 8) that could not be satisfied if the prisoner were merely refiling the same motion. It seems that Congress was being redundant in order to emphasize its growing distaste (on which see Gonzalez v. Secretary for Dep’t of Corrections, 366 F.3d 1253, 1269 (11th Cir.2004)) for repeat filers. But even without reference to the statutory language, and recurring again to the doctrine of the law of the case, we do not see how a federal prisoner- — -who must file his motion for relief under 2255 in the very court that convicted him- — can be allowed to do so if all he is doing is rehashing a claim that had been rejected on the direct appeal.

The provisions in sections 2244 and 2255 governing collateral attacks by. prisoners take the place of the normal preclusion doctrines — res judicata (claim preclusion) and collateral estoppel (issue preclusion)— but, as is apparent from our earlier citations, not of the law of the case. And it’s not as if the law of the case doctrine were a straitjacket that might cause a miscarriage of justice. Here is how the court in United States v. Aramony, supra, 166 F.3d at 661 (quoting earlier opinions), defined the doctrine: once the “decision of an appellate court establishes ‘the law of the case,’ it ‘must be followed in all subsequent proceedings in the same case in the trial court or on a later appeal ... unless: (1) a subsequent trial produces substantially different evidence, (2) controlling authority has since made a contrary decision of law applicable to the issue, or (3) the prior decision was clearly erroneous and would work manifest injustice.’ ” Broad as this set of exceptions is, none applies to White’s claim.

It makes no difference that his claim had been presented in his direct appeal in an Anders brief on the basis of which we dismissed the appeal as frivolous. Presented is presented, whether in an An-ders brief or in any other format; and if an appeal is dismissed as frivolous, that is a binding adjudication that the claims presented in it had no merit at all, rather than an invitation to refile. Anyway section 2244(b)(1) bars collateral review so long as the issue was presented to the court previously; it needn’t have been adjudicated. Felder v. McVicar, 113 F.3d 696, 698 (7th Cir.1997); In re Fowlkes, 326 F.3d 542 (4th Cir.2003); Vancleave v. Norris, 150 F.3d 926 (8th Cir.1998); contra (but without citation to § 2244(b)(1)), In re Lott, 366 F.3d 431 (6th Cir.2004). But here it was adjudicated.

APPLICATION DENIED.