Dunlap, Emmett v. Litscher, Jon ( 2002 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-1960
EMMETT KAPRIES DUNLAP,
Petitioner-Appellant,
v.
JON E. LITSCHER,
Respondent-Appellee.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 01-CV-814—Rudolph T. Randa, Judge.
____________
No. 02-2008
JOHN L. HUNT,
Petitioner-Appellant,
v.
UNITED STATES OF AMERICA,
Respondent-Appellee.
____________
Appeal from the United States District Court
for the Southern District of Illinois.
No. 99-CV-181-WDS—William D. Stiehl, Judge.
____________
No. 02-2082
DAVID LANZOTTI,
Petitioner-Appellant,
v.
UNITED STATES OF AMERICA,
Respondent-Appellee.
____________
2 Nos. 02-1960, 02-2008, 02-2082
Appeal from the United States District Court
for the Central District of Illinois.
No. 01-3194—Richard Mills, Judge.
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SUBMITTED JUNE 28, 2002—DECIDED SEPTEMBER 6, 2002
____________
Before POSNER, ROVNER, and EVANS, Circuit Judges.
POSNER, Circuit Judge. We have consolidated for deci-
sion three appeals from denial or dismissal of motions
under Rule 60(b) of the Federal Rules of Civil Procedure
that present similar questions about the circumstances in
which prisoners subject to the Antiterrorism and Effective
Death Penalty Act’s amendments to the federal habeas
corpus statute, 28 U.S.C. §§ 2241 et seq., and its substitute
for federal prisoners, 28 U.S.C. § 2255, may file motions
under Rule 60(b) to vacate a judgment denying habeas
corpus. The rule allows a federal district court to relieve
a party from a final judgment of the court on a variety of
grounds, including “mistake,” “fraud,” and “newly dis-
covered evidence which by due diligence could not have
been discovered in time to move for a new trial,” and “any
other reason justifying relief from the operation of the
judgment.” The habeas corpus statute, however, without
mentioning Rule 60(b), permits a second or subsequent
application for relief only if the court of appeals certifies
that the application is based either on a new rule of consti-
tutional law made retroactively applicable by the Supreme
Court to collateral challenges to final judgments or on new-
ly discovered evidence that demonstrates that no reason-
able finder of fact could have found the applicant guilty. 28
U.S.C. §§ 2244(b)(2), 2255 ¶ 8. These provisions are clear
and bar a district court from using Rule 60(b) to give a
prisoner broader relief from a judgment rendered by the
Nos. 02-1960, 02-2008, 02-2082 3
court in the prisoner’s federal habeas corpus (including
section 2255) proceeding. Otherwise AEDPA’s limitations
on collateral attack would be set at naught. As we said
recently, “Prisoners are not allowed to avoid the restric-
tions that Congress has placed on collateral attacks on
their convictions or other custody-creating or -enhancing
punishments by styling their collateral attacks as motions
for reconsideration under Rule 60(b). There must be no cir-
cumvention of those restrictions by classifying a collat-
eral attack as a Rule 60(b) motion.” Harris v. Cotton, 296 F.3d
578, 579-80 (7th Cir. 2002) (citations omitted). Many other
cases in this and other courts agree. Johnson v. United States,
196 F.3d 802, 805 (7th Cir. 1999); Banks v. United States, 167
F.3d 1082, 1083-84 (7th Cir. 1999) (per curiam); Burris v.
Parke, 130 F.3d 782, 783-84 (7th Cir. 1997); Lopez v. Douglas,
141 F.3d 974 (10th Cir. 1998) (per curiam); United States
v. Rich, 141 F.3d 550, 551 (5th Cir. 1998); Thompson v.
Calderon, 151 F.3d 918, 921 (9th Cir. 1998) (en banc); Felker
v. Turpin, 101 F.3d 657, 660-61 (11th Cir. 1996); cf. Calderon
v. Thompson, 523 U.S. 538, 553 (1998); McQueen v. Scroggy,
99 F.3d 1302, 1335 (6th Cir. 1996); Hunt v. Nuth, 57 F.3d 1327,
1339 (4th Cir. 1995); Blair v. Armontrout, 976 F.2d 1130, 1134
(8th Cir. 1992). There is one outlier, Rodriguez v. Mitchell,
252 F.3d 191, 198-200 (2d Cir. 2001).
But it is important to note the limitations of the prin-
ciple enunciated in Harris and the cases that precede it;
doing so will help us to deal with the outlier. It is only
when Rule 60(b) conflicts with AEDPA that it is unavail-
able to a prisoner. Rule 60(b) has a very broad scope and
it is easy to imagine cases in which allowing a prisoner to
file a motion under it would pose no risk of conflict with
the limitations that AEDPA places on successive collat-
eral attacks on state or federal criminal judgments. Sup-
pose the state procured dismissal of a prisoner’s first fed-
4 Nos. 02-1960, 02-2008, 02-2082
eral habeas corpus proceeding by making fraudulent
representations to the district court, and the prisoner
discovered this and filed a motion with the district court
to vacate the judgment of dismissal. AEDPA would not
be offended by allowing the district court to entertain
the motion. See Banks v. United States, supra, 167 F.3d at
1083-84; Thompson v. Calderon, supra, 151 F.3d at 921 n. 3.
The Second Circuit’s opinion in Rodriguez emphasized
such cases, see 252 F.3d at 199, but did not limit its ruling
to them. The court reasoned that even in a case of newly
discovered evidence, because “the procedural object of
the motion authorized by Rule 60(b) is simply to vacate
the federal judgment dismissing the habeas petition, not
to vacate the state conviction,” “the fact that the court
to which the motion is addressed might conceivably go
farther and grant the habeas in response to the motion
does not in our view make such a motion a second habe-
as petition.” Id. This reasoning is formalistic. If the ground
of the Rule 60(b) motion is that the prisoner has newly
discovered evidence of his innocence, he is seeking the
very relief he sought in his original habeas corpus proceed-
ing, the one he is seeking to reopen.
The Supreme Court has granted certiorari to decide in
what circumstances if any a prisoner in a proceeding gov-
erned by AEDPA can invoke Rule 60(b). Abdur’Rahman
v. Bell, 122 S. Ct. 1605, 70 U.S.L.W. 3650 (U.S. Apr. 22,
2002). For now, we shall adhere to our rule and so pro-
ceed to the three cases before us.
Dunlap filed a second habeas corpus application that
simply reasserted the claims alleged in his first applica-
tion. The district court construed the second application as
a Rule 60(b) motion and denied it on the merits. That was
a mistake. The court should have dismissed it for what
Nos. 02-1960, 02-2008, 02-2082 5
it was, a second habeas corpus application barred by
AEDPA.
Hunt based his Rule 60(b) motion, filed while his re-
quest for a certificate of appealability from the district
court’s denial of his habeas corpus application based on
a similar ground was pending in this court, on the ubiq-
uitous Apprendi decision. After we denied the certificate
on the ground that Hunt had made “no substantial show-
ing of the denial of a constitutional right,” for he had
failed to show a violation of Apprendi, see Curtis v. United
States, 294 F.3d 841, 844 (7th Cir. 2002); United States
v. Knox, 287 F.3d 667, 669 (7th Cir. 2002), which anyway
is not to be applied retroactively to habeas corpus cases,
Talbott v. Indiana, 226 F.3d 866 (7th Cir. 2000), the district
court denied his Rule 60(b) motion as moot. The motion
was properly dismissed, but not because it was moot;
rather, because Rule 60(b) cannot be used to seek relief
on the basis that the movant’s conviction was based on
a mistake of law, for that is territory occupied by AEDPA.
Lanzotti based his Rule 60(b) motion on newly discov-
ered evidence that his lawyer in his criminal trial had giv-
en him ineffective assistance. The district court, though
noting that it was an unauthorized collateral attack, de-
nied the motion on its merits. Again error. The motion was
precluded by AEDPA.
So the three motions were properly rejected, though on
the wrong grounds. Dunlap’s and Lanzotti’s, moreover,
should have been dismissed rather than denied, given
that the district courts lacked jurisdiction. Hunt’s motion
was dismissed, albeit on the wrong jurisdictional ground
(mootness). The judgment in Hunt is therefore affirmed,
but the judgments in Dunlap and Lanzotti are vacated
and those cases remanded to the respective district courts
6 Nos. 02-1960, 02-2008, 02-2082
to dismiss for lack of jurisdiction. Nunez v. United States,
96 F.3d 990, 991 (7th Cir. 1996).
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-97-C-006—9-6-02