Anthony Hill v. Ricardo Rios , 722 F.3d 937 ( 2013 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 12-3168
A NTHONY H ILL,
Petitioner-Appellant,
v.
R ICARDO R IOS,
Respondent-Appellee.
Appeal from the United States District Court
for the Central District of Illinois.
No. 10-cv-01288—Joe Billy McDade, Judge.
S UBMITTED JUNE 17, 2013—D ECIDED JULY 3, 2013
Before E ASTERBROOK, Chief Judge, and C UDAHY and
P OSNER, Circuit Judges.
E ASTERBROOK, Chief Judge. In 2010 Anthony Hill filed
a petition under 28 U.S.C. §2241, contending that Begay
v. United States, 553 U.S. 137 (2008), showed that the
district court had erred in deeming him a career
offender when calculating his Guideline sentence in
1999. Although Hill relied on Narvaez v. United States,
641 F.3d 877, amended on rehearing, 674 F.3d 621 (7th
2 No. 12-3168
Cir. 2011), we held that 28 U.S.C. §2255(e) forecloses
resort to §2241, because Hill could have used §2255 to
present the same argument, if he had acted promptly
after Begay, as Narvaez himself had done. See Hill v.
Rios, No. 11-2557 (7th Cir. Dec. 2, 2011) (nonprecedential
disposition).
Hill did not file a petition for rehearing or ask the
Supreme Court to review our decision. Instead he
filed in the district court a motion for relief under Fed.
R. Civ. P. 60(b), contending that this court erred in be-
lieving that he could have used §2255 to obtain relief.
Our error, according to Hill, is that we did not ap-
preciate that he had earlier filed and lost a motion
under §2255. That statute does not permit a second
motion to be based on a decision such as Begay,
which interprets a statute rather than the Constitution.
See Gray-Bey v. United States, 209 F.3d 986 (7th Cir.
2000). The district court denied this motion, concluding
that failure to apprise the court of appeals of all impor-
tant facts is not “excusable neglect” that permits re-
opening of a judgment in the district court.
After the district court denied the Rule 60(b) motion,
this court held in Brown v. Caraway, No. 12-1439 (7th
Cir. May 10, 2013), that §2241 may be used to seek
relief under the theory of Narvaez when §2255 does
not allow a second or successive collateral attack. The
difference between Brown and Hill’s situation, however,
is that Brown was decided on direct appeal from the
district court’s order denying relief under §2241, while
Hill wants to use Rule 60(b) to obtain relief in light
No. 12-3168 3
of arguments that could have been made on the
initial appeal.
Gonzalez v. Crosby, 545 U.S. 524, 536–38 (2005), holds
that Rule 60(b) cannot be used to reopen the judgment
in a civil case just because later authority shows that
the judgment may have been incorrect. The Supreme
Court explained in Gonzalez and its predecessors,
such as Ackermann v. United States, 340 U.S. 193 (1950),
that relief under Rule 60(b) is proper only under extra-
ordinary circumstances—and it held in both Gonzalez
and Ackermann that legal developments after a judg-
ment becomes final do not qualify as extraordinary.
Likewise a litigant who bypasses arguments on appeal
cannot depict his own omission as an “extraordinary”
event that justifies post-judgment relief.
Hill could have told us during his appeal in 2011 that
he had already filed a §2255 petition and could have
made in 2011 the same arguments that prevailed in
Brown. He also could have provided that information
and raised the arguments in a petition for rehearing.
He took neither step. There are time limits for seeking
rehearing or certiorari. Those time limits would be
vitiated if all a litigant had to do was make a motion in
the district court under Rule 60(b) and then raise on
appeal contentions that could have been presented
years earlier.
Finality is an important consideration, especially in
the law of collateral review. See, e.g., Harrington v.
Richter, 131 S. Ct. 770 (2011); Premo v. Moore, 131 S. Ct. 733(2011). Hill believes that the district judge misunder-
4 No. 12-3168
stood circumstances that could have influenced his sen-
tence in 1999. He does not contend that he is in prison
for an act that the law does not make criminal or that
his sentence exceeds the statutory maximum. Indeed,
his sentence of 284 months is within the range (235
to 293 months) that would have prevailed had the
district judge not applied a career-offender enhance-
ment in 1999. No rule of law either before or after Begay
prevented the district court from imposing the sentence
that Hill is now serving. He cannot extend the process
of contesting his sentence by filing post-judgment
motions in the district court.
Gonzalez emphasized that appellate review of a deci-
sion not to reopen a judgment under Rule 60(b) is defer-
ential. 545 U.S. at 540. See also, e.g., Metlyn Realty Corp.
v. Esmark, Inc., 763 F.2d 826 (7th Cir. 1985). The district
judge did not abuse his discretion in denying Hill’s
motion for post-judgment relief.
A FFIRMED
7-3-13