Wayne A. Brannigan, Applicant v. United States

249 F.3d 584, 2001 U.S. App. LEXIS 7478
CourtCourt of Appeals for the Seventh Circuit
DecidedApril 20, 2001
Docket01-1335
StatusPublished
Cited by39 cases

This text of 249 F.3d 584 (Wayne A. Brannigan, Applicant v. United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wayne A. Brannigan, Applicant v. United States, 249 F.3d 584, 2001 U.S. App. LEXIS 7478 (7th Cir. 2001).

Opinions

EASTERBROOK, Circuit Judge.

Ever since his conviction of drug offenses in 1997, Wayne Brannigan has been carrying on a rear-guard action. We affirmed his conviction and sentence (along with those of his co-conspirators) in an unpublished order. United States v. Jones, No. 97-2262, 1998 WL 234516 (7th Cir. May 7, 1998). Brannigan filed a collateral attack under 28 U.S.C. § 2255. After the district court denied his petition, we declined to issue a certificate of appeal-ability. Brannigan v. United States, No. 00-1628 (7th Cir. July 21, 2000). The ink was hardly dry on that order before Bran-nigan asked this court for permission to file a second collateral attack. See 28 U.S.C. § 2255 ¶ 8. We denied that application. Branigan [sic] v. United States, No. 00-3075 (7th Cir. Sept. 1, 2000). Now Brannigan has filed a successive application for permission to commence collateral litigation. That application, too, was denied with prejudice last month, thus complying with the deadline in 28 U.S.C. § 2244(b)(3)(D), in a short order noting that we would later issue an opinion with a more complete explanation. (Section 2255 ¶ 8 incorporates § 2244(b).) This opinion fulfils that promise.

Brannigan is among the many prisoners who believes that Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), requires every sentence for a drug offense to be reduced. We warned in Talbott v. Indiana, 226 F.3d 866, 869 (7th Cir.2000), that hasty action on this belief may be costly, because an unfounded petition invoking Ap-prendi may squander the prisoner’s opportunity to file one collateral attack as of right (subjecting future challenges to the gatekeeping provisions of § 2244(b) and § 2255 ¶ 8), or may lead to problems under § 2244(b)(1): “A claim presented in a second or successive habeas corpus application ... that was presented in a prior application shall be dismissed.” A bad Apprendi argument in one application thus may scuttle a better Apprendi argument later. That is exactly what has happened to Brannigan. His earlier application for permission to file a second collateral attack contended that Apprendi foreclosed the district court’s decision to [587]*587add two levels to his offense seriousness under the Sentencing Guidelines for possessing a weapon in the course of his drug dealing. (The extra levels led to his sentence of life imprisonment rather than, say, 360 months.) Brannigan contended that this increase was improper because he had not been convicted of a firearms offense. Sometimes we protect prisoners from the consequences of ill-considered Apprendi contentions by dismissing their applications without prejudice, for the Supreme Court has not declared Apprendi to be retroactively applicable on collateral attack. See Hernandez v. United States, 226 F.3d 839 (7th Cir.2000). But when an argument invoking Apprendi would fail even if that case turns out to be fully retroactive, we deny it on the merits in order to forestall a further round of litigation if the Supreme Court later should decide in favor of retroactivity. That was the fate of Brannigan’s initial application. Apprendi does not require facts pertinent to application of the Sentencing Guidelines to be determined under an elevated burden of persuasion; it holds only that circumstances affecting the statutory maximum punishment must be established beyond a reasonable doubt to the satisfaction of the trier of fact. See Apprendi, 120 S.Ct. at 2362-63; United States v. Patterson, 241 F.3d 912 (7th Cir.2001); Talbott, 226 F.3d at 869. See also Edwards v. United States, 523 U.S. 511, 118 S.Ct. 1475, 140 L.Ed.2d 703 (1998).

Brannigan’s current argument— that the jury rather than the district judge should have determined how much cocaine the conspirators distributed — is closer to the holding of Apprendi. He errs in thinking that Apprendi requires the full weight of drugs, which the district judge determined to be more than 1.5 kilograms of crack, to be ascertained beyond a reasonable doubt by the jury. Distributing even 50 grams of crack exposes a person to life imprisonment. 21 U.S.C. § 841(b)(1)(A)(iii). Once the trier of fact concludes beyond a reasonable doubt that the defendant distributed 50 grams of crack, the district judge decides by a preponderance of the evidence the full extent of relevant conduct for purposes of sentencing. Still, Brannigan has the makings of an Apprendi claim because the jury was not asked to resolve the 50-gram question. Brannigan’s claim is weak, not only because the district judge found that the conspiracy entailed at least 1.5 kilograms of crack (making it unlikely that a jury would have balked at finding a mere 50 grams), but also because, even if Apprendi turns out to be retroactive, to prevail on any claim first raised on collateral attack the petitioner must establish “cause” and “prejudice,” which is more difficult than establishing “plain error.” See United States v. Frady, 456 U.S. 152, 162-66, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982); United States v. Smith, 241 F.3d 546 (7th Cir.2001). Yet Brannigan has at least the kernel of an Apprendi argument, one whose resolution we would defer under Hernandez but for the operation of § 2244(b)(1).

Section 2244(b)(1) says that a “claim” presented in a prior application is forever closed. What is a “claim” as § 2244(b)(1) uses that word? The answer is elusive. Defining the “claim” for purposes of preclusion in civil litigation has been a complex process, and it is tempting to borrow the answer' — that a single set of facts producing a single injury is one “claim” no matter how many legal theories can be invoked in support of relief. E.g., Herrmann v. Cencom Cable Associates, Inc., 999 F.2d 223 (7th Cir.1993). But this can’t be the right way to understand “claim” in § 2244(b)(1), for then one crime would produce one “claim” no matter how [588]*588many things had gone wrong. This would imply that every successive collateral attack on a single conviction and sentence must be dismissed. Yet § 2244(b) and § 2255 ¶ 8 suppose that multiple collateral attacks are possible. Thus it is essential to define the “claim” as a challenge to a particular step in the case, such as the introduction of a given piece of evidence, the text of a given jury instruction, or the performance of counsel. That’s essentially how Bennett v. United States,

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Bowe v. United States
Supreme Court, 2026
United States v. Vargas-Soto
35 F.4th 979 (Fifth Circuit, 2022)
Jackson v. Lumpkin
25 F.4th 339 (Fifth Circuit, 2022)
United States v. Cardenas
13 F.4th 380 (Fifth Circuit, 2021)
In Re: Larry Sharp
Fifth Circuit, 2020
Wiggins v. Stancil
S.D. Illinois, 2020
Omar Pouncy v. Carmen Palmer
846 F.3d 144 (Sixth Circuit, 2017)
Antonio Franklin v. Charlotte Jenkins
839 F.3d 465 (Sixth Circuit, 2016)
Dawkins v. United States
829 F.3d 549 (Seventh Circuit, 2016)
John Dawkins v. United States
Seventh Circuit, 2016
Bradley v. United States
186 F. Supp. 3d 950 (W.D. Wisconsin, 2016)
Kendrick v. Hamblin
606 F. App'x 835 (Seventh Circuit, 2015)
Welch v. United States
604 F.3d 408 (Seventh Circuit, 2010)
United States Ex Rel. Griffith v. Hulick
587 F. Supp. 2d 899 (N.D. Illinois, 2008)
Peoples, Robin v. United States
Seventh Circuit, 2005
Robin L. Peoples v. United States
403 F.3d 844 (Seventh Circuit, 2005)

Cite This Page — Counsel Stack

Bluebook (online)
249 F.3d 584, 2001 U.S. App. LEXIS 7478, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wayne-a-brannigan-applicant-v-united-states-ca7-2001.