Thomas, Charles B. v. United States ( 2003 )


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  •                            In the
    United States Court of Appeals
    For the Seventh Circuit
    ____________
    No. 02-3875
    CHARLES B. THOMAS,
    Petitioner-Appellant,
    v.
    UNITED STATES OF AMERICA,
    Respondent-Appellee.
    ____________
    Appeal from the United States District Court
    for the Southern District of Illinois.
    No. 00-4304 (98-40044)—J. Phil Gilbert, Judge.
    ____________
    On Petition for Rehearing
    and Rehearing En Banc
    ____________
    DECIDED—APRIL 16, 2003
    ____________
    Before EASTERBROOK, EVANS, and WILLIAMS, Circuit
    Judges.
    EASTERBROOK, Circuit Judge. Charles Thomas is serv-
    ing a term of 300 months’ imprisonment for possessing
    crack cocaine with intent to distribute. We affirmed his
    conviction on direct appeal. United States v. Thomas,
    No. 99-2455 (7th Cir. Feb. 7, 2000) (unpublished order).
    After the Supreme Court denied his petition for certiorari,
    
    531 U.S. 969
     (2000), Thomas commenced a collateral attack
    under 
    28 U.S.C. §2255
    . The district court denied his peti-
    2                                                No. 02-3875
    tion and declined to issue a certificate of appealability.
    See 
    28 U.S.C. §2253
    (c). Under this court’s Operating Pro-
    cedure 1(a)(1), his appeal was submitted to two judges, who
    considered independently whether Thomas’s contentions
    meet the standard for a certificate. Both judges gave a
    negative answer. Once two judges have concluded that
    appeal does not present any substantial issue, the appel-
    lant has no prospect of success on the merits (for two is
    a majority of a three-judge panel), and the application is
    not referred to a third circuit judge. Thus the court issued
    an order denying Thomas’s request for such a certificate,
    a step that brought his appeal to a close. Thomas v. United
    States, No. 02-3875 (7th Cir. Feb. 7, 2003) (unpublished
    order).
    Thomas then filed what he styles a “Petition for Rehear-
    ing and/or Rehearing (En Banc)”. It poses a number of
    questions about how we should handle prisoners’ filings
    after the court has declined to issue a certificate of
    appealability. None of the Federal Rules of Appellate
    Procedure, the Rules of the Seventh Circuit, or the circuit’s
    Operating Procedures addresses these issues. The court
    therefore submitted Thomas’s request to the three-judge
    motions panel that was serving at the time two of the three
    had acted on his request for a certificate.
    1. The first question is whether a prisoner can obtain
    reconsideration of a decision not to issue a certificate of ap-
    pealability. No statute or rule forbids such a step; §2253
    does not have language parallel to 
    28 U.S.C. §2244
    (b)(3)(e),
    which says that an order denying permission to commence
    a second or successive collateral attack may not be re-
    viewed by rehearing or certiorari. Still, if reconsideration
    would amount to the commencement of a second collateral
    attack, then the prisoner must satisfy the criteria for that
    measure (see §2244(b)(3), §2255 ¶8) rather than the lower
    threshold of §2253(c). Some post-decision motions in a col-
    lateral attack must be treated as equivalent to efforts to
    No. 02-3875                                                  3
    launch additional collateral proceedings; one example, from
    Calderon v. Thompson, 
    523 U.S. 538
    , 553-54 (1998), is an
    application to recall the appellate mandate. Similarly, a
    motion filed in the district court under Fed. R. Civ. P. 60(b),
    after the time for appeal has expired, usually must be
    treated as a new collateral attack. See, e.g., Dunlap v.
    Litscher, 
    301 F.3d 873
     (7th Cir. 2002); Burris v. Parke, 
    130 F.3d 782
     (7th Cir. 1997). But a motion in the district court
    before time to appeal has run does not come within this
    rule, see Johnson v. United States, 
    196 F.3d 802
     (7th Cir.
    1999), and likewise with a motion in the court of appeals
    while time remains under Fed. R. App. P. 40(a)(1). A timely
    request for reconsideration is a motion in the original case,
    not a disguised effort to start a new case. Thomas filed his
    petition within the time allowed by Rule 40(a)(1), so it is
    properly before us.
    2. There is some doubt whether such a document should
    be called a “petition for rehearing” or instead a “motion for
    reconsideration”—though the caption is semantic rather
    than substantive. For most purposes it makes sense to lim-
    it the phrase “petition for rehearing” to a request for re-
    view of a panel’s decision on the merits. Someone dis-
    pleased with another kind of decision—for example, an
    order by a motions judge denying a request to file a brief
    longer than the cap in Fed. R. App. P. 32—files a motion for
    reconsideration. A decision by two judges, considering
    the papers seriatim, that the prisoner has not demon-
    strated the existence of a substantial constitutional ques-
    tion, falls somewhere in between. It is not a decision “on
    the merits”: Miller-El v. Cockrell, 
    123 S. Ct. 1029
     (2003),
    holds that the merits differ from the criteria for a certi-
    ficate of appealability. Many prisoners who seem likely
    to lose in the court of appeals nonetheless are entitled to
    certificates of appealability under the statutory standard;
    meritorious appeals are a subset of those in which a
    certificate should issue. Yet the denial of a certificate
    4                                                No. 02-3875
    concludes the appeal; it has the same effect as an adverse
    decision on the merits. A request for reconsideration there-
    fore should be treated the same as a petition for rehear-
    ing, no matter what caption it bears—first because de-
    nial ends the appeal, and second because a belief that the
    appellant is entitled to prevail on the merits means that
    a certificate of appealability should have issued.
    3. This implies that a two-judge decision declining to
    issue a certificate of appealability is eligible for rehearing
    en banc, even though neither Fed. R. App. P. 35 nor Circuit
    Rule 35 contemplates en banc review of an ordinary motion.
    A request for a certificate is enough to put the case “in” the
    court of appeals. See Hohn v. United States, 
    524 U.S. 236
    (1998). Denial thus may be reviewed by the Supreme Court
    on writ of certiorari, as in Hohn, Miller-El, and Slack v.
    McDaniel, 
    529 U.S. 473
     (2000). Any order that terminates
    the appeal, and may be reviewed by the Supreme Court,
    also should be eligible for review by the full court of ap-
    peals. Occasionally the denial of a request for a certificate
    of appealability will present the sort of legal question that
    justifies rehearing en banc; that option should be avail-
    able, even though the search for a needle in the haystack
    of pro se motions has a potential to tax this court’s re-
    sources (as the forma pauperis docket taxes the Supreme
    Court’s). Consequently, a document (whether styled “peti-
    tion for rehearing” or “motion for reconsideration”) that
    seeks review by the court en banc will be distributed to all
    active judges. This has been done with Thomas’s petition.
    4. There remains the question how judges who were
    not on the motions panel should deal with the petition.
    Does it invite each active judge (11 on this court; up to 28
    elsewhere) to decide independently whether a substantial
    constitutional issue has been presented and issue a cer-
    tificate unilaterally? We think not. This court resolved
    when it adopted Operating Procedure 1(a)(1) that only
    two circuit judges would conduct the review required by
    No. 02-3875                                                5
    §2253(c). A request for rehearing en banc poses, not the
    question whether any particular active judge would deem
    a constitutional issue substantial, but whether an impor-
    tant and controlling issue of law requires resolution by
    the full court—either to maintain uniformity within the
    court or to resolve a question of exceptional importance.
    That is the standard set by Fed. R. App. P. 35(a). An appeal
    does not come before any of the judges (other than the
    two who acted under Operating Procedure 1(a)(1)) for
    decision unless en banc review first is granted; otherwise
    the panel’s resolution stands. Moreover, even when rehear-
    ing en banc is granted, this does not empower any particu-
    lar judge to issue a certificate unilaterally; once the case
    has been set for hearing en banc, the majority prevails.
    That is why none of the Justices in Hohn, Slack, or Miller-
    El unilaterally issued a certificate of appealability (a
    step that would have made further consideration unneces-
    sary in each of these cases).
    To sum up: an order declining to issue a certificate
    of appealability is subject to rehearing by the panel (on
    timely motion) and review by the court en banc—but, unless
    rehearing en banc is granted, a certificate of appealabil-
    ity will issue only if one of the judges to whom the applica-
    tion was referred under Operating Procedure 1(a)(1) con-
    cludes, on reconsideration, that the statutory criteria for
    a certificate have been met.
    Because this opinion clarifies the operating procedure
    of the court, it was circulated to all active judges under
    Circuit Rule 40(e). No judge favored rehearing en banc.
    This motions panel unanimously concludes that the
    standards of §2253(c) have not been met and that a certifi-
    cate of appealability should not be issued. Thomas’s
    principal argument is that the indictment was fatally
    defective because it did not specify the quantity of crack
    cocaine that he possessed with intent to distribute. This
    6                                               No. 02-3875
    argument is not substantial, given cases such as United
    States v. Cotton, 
    535 U.S. 625
     (2002), and United States v.
    Bjorkman, 
    270 F.3d 482
    , 490-92 (7th Cir. 2001). Bjorkman
    holds that Apprendi v. New Jersey, 
    530 U.S. 466
     (2000),
    does not make drug quantity an “element” of the offense
    under 
    21 U.S.C. §841
    , and Cotton holds that failure to
    allege and prove a particular quantity does not deprive
    the district court of jurisdiction or otherwise auto-
    matically render the judgment invalid. Thomas’s 300-month
    sentence is lawful if a properly instructed jury would
    have found, beyond a reasonable doubt, that Thomas
    possessed with intent to distribute at least 5 grams of crack
    cocaine. See 
    21 U.S.C. §841
    (b)(1)(B)(iii) (40-year maxi-
    mum on conviction of crime involving 5 or more grams of
    crack). Thomas concedes that 7 grams were seized from his
    home, and he does not seriously deny that he planned to
    distribute this much. The findings of additional relevant
    conduct, which raised the Guideline range, are not sub-
    ject to Apprendi’s holding; relevant conduct is ascertained
    by a judge on the preponderance standard, provided
    that the statutory maximum is respected. See Edwards
    v. United States, 
    523 U.S. 511
     (1998). Thomas’s other
    arguments are insubstantial, individually and collec-
    tively, for the reasons given by the district judge. The pe-
    tition for rehearing therefore is denied.
    A true Copy:
    Teste:
    ________________________________
    Clerk of the United States Court of
    Appeals for the Seventh Circuit
    USCA-02-C-0072—4-16-03