Johnson, Isaac v. Robert, Bradley J. , 431 F.3d 992 ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 05-4525
ISAAC JOHNSON,
Applicant,
v.
BRADLEY J. ROBERT, Warden, Centralia Correctional Center,
Respondent.
____________________
Application for Permission to Initiate
a Second or Successive Collateral Attack
____________________
SUBMITTED DECEMBER 9, 2005 — DECIDED DECEMBER 15, 2005∗
____________________
Before BAUER, EASTERBROOK, and ROVNER, Circuit
Judges.
PER CURIAM. Isaac Johnson seeks permission to initiate
another collateral attack on his conviction and 80-year sentence
for murder. See 28 U.S.C. §2244(b)(3). Although his application
is not entirely clear, he relies in substantial part on Apprendi v.
New Jersey, 530 U.S. 466 (2000), and implies that he would in-
voke Blakely v. Washington, 542 U.S. 296 (2004), which elabo-
rates on how Apprendi applies to sentencing in state prosecu-
tions. Apprendi was decided several years ago, and Blakely was
issued on June 24, 2004. Johnson’s application under
§2244(b)(3) was not filed until December 7, 2005, more than a
year later.
∗ This opinion is being issued in typescript. A printed copy will follow.
No. 05-4525 Page 2
Because 28 U.S.C. §2244(d)(1) establishes a one-year period
of limitations, Johnson’s application is too late. The year usually
runs from the date on which the conviction became final, which
for Johnson was long before the Supreme Court decided Ap-
prendi. A proviso in §2244(d)(1)(C) restarts the clock on “the
date on which the constitutional right asserted was initially
recognized by the Supreme Court, if the right has been newly
recognized by the Supreme Court and made retroactively appli-
cable to cases on collateral review”. Whether we use Apprendi
or Blakely as the benchmark, “the date on which the constitu-
tional right asserted was initially recognized by the Supreme
Court” is more than a year before Johnson filed this applica-
tion. The Supreme Court held in Dodd v. United States, 125 S. Ct.
2478 (2005), that a provision in 28 U.S.C. §2255 materially iden-
tical to §2244(d)(1)(C) runs from the date the right was initially
recognized, even if the Court does not declare that right to be
retroactive until later. Dodd is equally applicable to
§2244(d)(1)(C), so there is no point in authorizing Johnson to
file another collateral attack. Because he waited too long, it is
unnecessary to decide whether his claim would be a substantial
one on the merits.
Johnson adverts to a number of other potential contentions,
such as the possibility that his trial lawyer furnished ineffective
assistance, but these likewise would be untimely. Johnson
should have pursued them in his initial federal collateral attack.
The application is denied.