Altman, Lewis v. Benik, Daniel ( 2003 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-2737
LEWIS ALTMAN, JR.,
Applicant,
v.
DANIEL J. BENIK, Warden,
Respondent.
____________
On Motion for an Order Authorizing
the District Court to Entertain a Second
or Successive Motion for Collateral Review.
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SUBMITTED JUNE 30, 2003—DECIDED JULY 25, 2003Œ
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Before BAUER, RIPPLE and KANNE, Circuit Judges.
PER CURIAM. Lewis Altman has applied for an order
pursuant to 28 U.S.C. § 2244(b)(3) authorizing the district
court to consider a second or successive petition under
§ 2254. He filed a previous § 2254 petition in the dis-
trict court in March 2000, and the court dismissed it as
untimely. He needs permission from this court to file an-
other petition only if his previous untimely petition
counts as a “prior application” under § 2244(b). We hold
that his previous untimely petition does count as a prior
Œ
This opinion was initially released in typescript form.
2 No. 03-2737
application under § 2244(b), and we deny Mr. Altman’s
request for permission to file a successive petition because
he does not meet the criteria outlined in § 2244(b).
I
BACKGROUND
In 1993, Mr. Altman pleaded guilty in a Wisconsin court
to attempted first degree intentional homicide by use of
a dangerous weapon, Wis. Stat. §§ 939.32, 940.01,
939.63(1)(a)(2), and three counts of reckless endanger-
ment by use of a dangerous weapon, Wis. Stat. §§ 941.30(1),
939.63(1)(a)(2). The convictions all stemmed from an
incident in which Mr. Altman fired several gunshots from
his car towards another car, hitting and injuring one of
the car’s three occupants. He litigated an unsuccessful di-
rect appeal and in 1997 filed his first § 2254 petition, which
he voluntarily dismissed so he could exhaust his state
remedies. In March 2000, Mr. Altman returned to district
court with a new § 2254 petition, but the court dismissed
it as untimely and denied his request for a certificate of
appealability. He sought a certificate of appealability in this
court, but we dismissed the case because his notice of
appeal was untimely.
He now seeks permission to file a successive § 2254
petition and proposes challenging his conviction on the
bases of insufficient evidence, ineffective assistance of
trial counsel for failing to adequately investigate his
crime and for operating under a conflict of interest, and
ineffective assistance of state post-conviction counsel for
not raising a challenge to the sufficiency of the evidence.
No. 03-2737 3
II
ANALYSIS
Section 2244(b) requires petitioners to get permission
from the courts of appeals before filing second or succes-
sive petitions in the district courts. Not every petition
counts for purposes of § 2244(b), so in some cases later
petitions are not considered second or successive under
§ 2244(b) and can be filed without permission from the
courts of appeals. We have previously identified several
cases in which prior petitions do not count because they
suffer from technical or procedural deficiencies that the
petitioners can rectify before refiling their petitions, but we
have never decided whether a petition dismissed as un-
timely counts for purposes of § 2244(b). We hold today that
a prior untimely petition does count because a statute of
limitations bar is not a curable technical or procedural
deficiency but rather operates as an irremediable de-
fect barring consideration of the petitioner’s substantive
claims.
For purposes of § 2244(b), we do not count previous
petitions that were dismissed for technical or procedural
deficiencies that the petitioner can cure before refiling. For
example, we do not count petitions dismissed because the
petitioner filed in the wrong district, Phillips v. Seiter, 173
F.3d 609, 610 (7th Cir. 1999), or failed to pay the filing fee,
Benton v. Washington, 106 F.3d 162, 165 (7th Cir. 1996).
Likewise, we do not count petitions dismissed as premature,
Slack v. McDaniel, 529 U.S. 473, 485-86 (2000) (petitions
filed before exhaustion of state remedies not counted);
Stewart v. Martinez-Villareal, 523 U.S. 637, 645 (1998) (claim
earlier dismissed as premature could be litigated in a later
petition); see O’Connor v. United States, 133 F.3d 548, 550-51
(7th Cir. 1998) (petition dismissed because post-trial mo-
tion was still pending not counted). In these cases the
4 No. 03-2737
petitioners are able to rectify the problems and then refile
their petitions for a merits determination of the substan-
tive claims.
If, however, a petition is resolved in a way that satisfies a
petitioner’s one “full and fair opportunity to raise a [federal]
collateral attack,” O’Connor, 133 F.3d at 550, then it does
count for purposes of § 2244(b). So, petitions that have
been denied on the merits, see, e.g., In re Page, 179 F.3d
1024, 1025 (7th Cir. 1999), that the petitioner voluntarily
dismisses in the face of an imminent loss, Potts v. United
States, 210 F.3d 770, 771 (7th Cir. 2000); Felder v. McVicar,
113 F.3d 696, 698 (7th Cir. 1997), or that have been denied
based on a procedural default, In re Cook, 215 F.3d 606,
608 (6th Cir. 2000); Carter v. United States, 150 F.3d 202, 205-
06 (2d Cir. 1998), do count as prior petitions because the
petitioner is incapable of curing the defect underlying
the district court’s judgment.
In this case, Mr. Altman filed his prior petition after the
one-year statute of limitations expired, so the district
court dismissed it as untimely. Mr. Altman can do noth-
ing to correct his late filing, and if he refiled his petition
the district court would again deny it as untimely. He
received his one opportunity to litigate a federal collateral
attack, but he failed to do it in a timely manner. His prior
petition therefore counts and he needs this court’s per-
mission to file another petition.
We will not, however, grant Mr. Altman that permis-
sion. With respect to his proposed claim that there was
insufficient evidence of his guilt, authorization is com-
pletely barred by § 2244(b)(1) because he presented that
claim in his prior untimely petition. See Taylor v. Gilkey, 314
F.3d 832, 836 (7th Cir. 2002). The same is true for his pro-
posed claims that his trial counsel was ineffective for fail-
ing to investigate his crime and that his post-conviction
No. 03-2737 5
counsel was ineffective for failing to challenge the suffi-
ciency of the evidence. With respect to Mr. Altman’s
proposed claim that his trial counsel was operating under
a conflict of interest, he does not rely on a “new rule of
constitutional law, made retroactive to cases on collateral
review by the Supreme Court, that was previously unavail-
able” or on clear and convincing evidence of his innocence
that was previously unavailable. 28 U.S.C. § 2244(b)(2).
Conclusion
For the reasons set forth in this opinion, we deny
Mr. Altman’s application for leave to commence a succes-
sive collateral attack.
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—7-31-03