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
_______
SUBMITTED JUNE 30, 2003 – DECIDED JULY 25, 2003*
_______
Before BAUER, RIPPLE, and KANNE, Circuit Judges.
*
This opinion is being released in typescript form.
No. 03-2737 Page 2
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 district court in March 2000, and the
court dismissed it as untimely. He needs permission from this court
to file another 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 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 endangerment 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 direct
appeal and in 1997 filed his first § 2254 petition, which he
voluntarily dismissed so he could exhaust his state remedies. In
March 2000, 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
No. 03-2737 Page 3
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.
II
ANALYSIS
Section 2244(b) requires petitioners to get permission from
the courts of appeals before filing second or successive 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
form 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 untimely 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 defect 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.
No. 03-2737 Page 4
Martinez-Villareal, 523 U.S. 637, 645 (1998)(claim earlier dismissed
as premature could be litigated in a later petition); O’Connor v.
United States, 133 F.3d 548, 550 (7th Cir. 1998) (petition dismissed
because post-trial motion was still pending not counted). In these
cases the petitioners are able to rectify the problems and then refile
their petitions for a merits determination of the substantive 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 nothing 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 permission to file
another petition.
We will not, however, grant Mr. Altman that permission.
With respect to his proposed claim that there was insufficient
evidence of his guilt, authorization is completely barred by
§ 2244(b)(1) because he presented that claim in his prior untimely
No. 03-2737 Page 5
petition. See Taylor v. Gilkey, 314 F.3d 832, 836 (7th Cir. 2003).
The same is true for his proposed claims that his trial counsel was
ineffective for failing to investigate his crime and that his post-
conviction counsel was ineffective for failing to challenge the
sufficiency 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 unavailable” or on clear and convincing evidence of
his innocence that was previously unavailable. § 2244(b)(2).
Conclusion
For the reasons set forth in this opinion, we deny
Mr. Altman’s application for leave to commence a successive
collateral attack.