Brannigan, Wayne v. United States

In the

United States Court of Appeals

For the Seventh Circuit

No. 01-1335

Wayne A. Brannigan,

Applicant,

v.

United States of America,

Respondent.

On Application for an Order Authorizing

a Second or Successive Petition for Collateral Review

Submitted February 12, 2001--Decided March 14, 2001

Opinion Issued April 20, 2001

Before Cudahy, Posner, and Easterbrook, Circuit

Judges.

Easterbrook, Circuit Judge. Ever since his

conviction of drug offenses in 1997, Wayne

Brannigan has been carrying on a rear-guard

action. We affirmed his conviction and sentence

(along with those of his co-conspirators) in an

unpublished order. United States v. Jones, No.

97-2262 (7th Cir. May 7, 1998). Brannigan filed

a collateral attack under 28 U.S.C. sec.2255.

After the district court denied his petition, we

declined to issue a certificate of appealability.

Brannigan v. United States, No. 00-1628 (7th Cir.

July 21, 2000). The ink was hardly dry on that

order before Brannigan asked this court for

permission to file a second collateral attack.

See 28 U.S.C. sec.2255 para.8. We denied that

application. Branigan [sic] v. United States, No.

00-3075 (7th Cir. Sept. 1, 2000). Now Brannigan

has filed a successive application for permission

to commence collateral litigation. That

application, too, was denied with prejudice last

month, thus complying with the deadline in 28

U.S.C. sec.2244(b)(3)(D), in a short order noting

that we would later issue an opinion with a more

complete explanation. (Section 2255 para.8

incorporates sec.2244(b).) This opinion fulfils

that promise.

Brannigan is among the many prisoners who

believes that Apprendi v. New Jersey, 530 U.S.

466, 120 S. Ct. 2348 (2000), requires every

sentence for a drug offense to be reduced. We

warned in Talbott v. Indiana, 226 F.3d 866, 869

(7th Cir. 2000), that hasty action on this belief

may be costly, because an unfounded petition

invoking Apprendi may squander the prisoner’s

opportunity to file one collateral attack as of

right (subjecting future challenges to the

gatekeeping provisions of sec.2244(b) and

sec.2255 para.8), or may lead to problems under

sec.2244(b)(1): "A claim presented in a second or

successive habeas corpus application . . . that

was presented in a prior application shall be

dismissed." A bad Apprendi argument in one

application thus may scuttle a better Apprendi

argument later. That is exactly what has happened

to Brannigan. His earlier application for

permission to file a second collateral attack

contended that Apprendi foreclosed the district

court’s decision to add two levels to his offense

seriousness under the Sentencing Guidelines for

possessing a weapon in the course of his drug

dealing. (The extra levels led to his sentence of

life imprisonment rather than, say, 360 months.)

Brannigan contended that this increase was

improper because he had not been convicted of a

firearms offense. Sometimes we protect prisoners

from the consequences of ill-considered Apprendi

contentions by dismissing their applications

without prejudice, for the Supreme Court has not

declared Apprendi to be retroactively applicable

on collateral attack. See Hernandez v. United

States, 226 F.3d 839 (7th Cir. 2000). But when an

argument invoking Apprendi would fail even if

that case turns out to be fully retroactive, we

deny it on the merits in order to forestall a

further round of litigation if the Supreme Court

later should decide in favor of retroactivity.

That was the fate of Brannigan’s initial

application. Apprendi does not require facts

pertinent to application of the Sentencing

Guidelines to be determined under an elevated

burden of persuasion; it holds only that

circumstances affecting the statutory maximum

punishment must be established beyond a

reasonable doubt to the satisfaction of the trier

of fact. See Apprendi, 120 S. Ct. at 2362-63;

United States v. Patterson, No. 97-3159 (7th Cir.

Mar. 2, 2001); Talbott, 226 F.3d at 869. See also

Edwards v. United States, 523 U.S. 511 (1998).

Brannigan’s current argument--that the jury

rather than the district judge should have

determined how much cocaine the conspirators

distributed--is closer to the holding of

Apprendi. He errs in thinking that Apprendi

requires the full weight of drugs, which the

district judge determined to be more than 1.5

kilograms of crack, to be ascertained beyond a

reasonable doubt by the jury. Distributing even

50 grams of crack exposes a person to life

imprisonment. 21 U.S.C. sec.841(b)(1)(A)(iii).

Once the trier of fact concludes beyond a

reasonable doubt that the defendant distributed

50 grams of crack, the district judge decides by

a preponderance of the evidence the full extent

of relevant conduct for purposes of sentencing.

Still, Brannigan has the makings of an Apprendi

claim because the jury was not asked to resolve

the 50-gram question. Brannigan’s claim is weak,

not only because the district judge found that

the conspiracy entailed at least 1.5 kilograms of

crack (making it unlikely that a jury would have

balked at finding a mere 50 grams), but also

because, even if Apprendi turns out to be

retroactive, to prevail on any claim first raised

on collateral attack the petitioner must

establish "cause" and "prejudice," which is more

difficult than establishing "plain error." See

United States v. Frady, 456 U.S. 152, 162-66

(1982); United States v. Smith, No. 99-4253 (7th

Cir. Feb. 8, 2001). Yet Brannigan has at least

the kernel of an Apprendi argument, one whose

resolution we would defer under Hernandez but for

the operation of sec.2244(b)(1).

Section 2244(b)(1) says that a "claim" presented

in a prior application is forever closed. What is

a "claim" as sec.2244(b)(1) uses that word? The

answer is elusive. Defining the "claim" for

purposes of preclusion in civil litigation has

been a complex process, and it is tempting to

borrow the answer--that a single set of facts

producing a single injury is one "claim" no

matter how many legal theories can be invoked in

support of relief. E.g., Herrmann v. Cencom Cable

Associates, Inc., 999 F.2d 223 (7th Cir. 1993).

But this can’t be the right way to understand

"claim" in sec.2244(b)(1), for then one crime

would produce one "claim" no matter how many

things had gone wrong. This would imply that

every successive collateral attack on a single

conviction and sentence must be dismissed. Yet

sec.2244(b) and sec.2255 para.8 suppose that

multiple collateral attacks are possible. Thus it

is essential to define the "claim" as a challenge

to a particular step in the case, such as the

introduction of a given piece of evidence, the

text of a given jury instruction, or the

performance of counsel. That’s essentially how

Bennett v. United States, 119 F.3d 470, 471-72

(7th Cir. 1997), understands it. If, for example,

the defendant invokes the fourth amendment to

protest the introduction of one item of evidence,

a later contest to the same evidence based on the

fifth or sixth amendment is just another

iteration of the same claim. "A rehashed claim is

not a new claim." Bennett, 119 F.3d at 472. In

this respect the civil definition of a "claim"

remains instructive; in both civil and criminal

practice it is the underlying events, rather than

the legal arguments advanced to obtain relief

from those events, that demarcate a "claim." The

criminal practice differs because for collateral

attack the "events" in question are what

transpired in court, rather than the out-of-court

events that precipitated the litigation. But the

principle that new legal arguments about the same

events do not amount to a new claim remains.

Accord, Babbitt v. Woodford, 177 F.3d 744, 746

(9th Cir. 1999); McDonald v. Bowersox, 125 F.3d

1183, 1185-86 (8th Cir. 1997). (In re Medina, 109

F.3d 1556, 1565 (11th Cir. 1997), assumes, to the

contrary, that every new legal argument is a new

"claim" for purposes of sec.2244(b)(1), but the

court did not give a reason, and the subject

apparently had not been debated by the

litigants.)

Brannigan’s sentence was determined by the table

in the Sentencing Guidelines (U.S.S.G. sec.5A)

that combines and specifies the effect of all

calculations that go into the offense level and

criminal history. His current position, however,

depends on disgregating that process. In his

previous application Brannigan complained about

one of the adjustments (two levels for possessing

a weapon); now he uses Apprendi to complain about

the relevant-conduct calculation (that is, the

quantity of cocaine involved). Each petition

concerns the same sentence, and the legal theory

used to challenge that sentence is the Apprendi

principle. It would cut matters entirely too fine

to divide into separate "claims" each element of

the calculation under the Sentencing Guidelines.

That would fracture a single sentence into dozens

of "claims," one for each prior conviction that

affects the criminal history level plus one for

each offense-severity level. For a calculation

that in general is not supposed to allow any

collateral attack, see Scott v. United States,

997 F.2d 340 (7th Cir. 1993) (the Sentencing

Guidelines are not "laws" for purposes of

sec.2255, so errors in calculating the sentence

generally cannot be raised on collateral attack),

this would be overboard. Section 2244(b)(1), like

the Antiterrorism and Effective Death Penalty Act

(AEDPA) of which it is a part, is designed to

promote finality, not to illuminate a route to

pursuing scores of collateral attacks.

Brannigan’s best argument would be that,

although the last time around he disputed the

calculation under the Sentencing Guidelines, now

he is disputing the district court’s assumption

that the maximum lawful sentence is life

imprisonment rather than, say, the 20-year

maximum for distributing any detectable quantity

of cocaine. See 21 U.S.C. sec.841(b)(1)(C). This

is not a distinction on which Brannigan relies--

recall that he thinks Apprendi applicable to the

whole of the Guidelines calculation, and that

contention, the one he actually presents, is the

same "claim" as before. Moreover, making the

application of sec.2244(b)(1) turn on whether a

petitioner makes a good legal argument (here,

using Apprendi to contest the determination of

the statutory maximum) or a bad legal argument

(in the former application, using Apprendi to

contest a two-level increase for firearms) would

sap that statute of effect. Section 2244(b)(1)

supposes that the first application was bad and

the second better; otherwise the first would not

have been dismissed and it would not be necessary

to invoke principles of preclusion to dismiss the

second. To carve up a trial, conviction, and

sentence in such a way that sound and unsound

legal arguments are necessarily different

"claims" would be to nullify sec.2241 (b)(1). It

is better to conclude that all variations of

Apprendi-based challenges to a single sentence

are a single "claim."

Section 2244(b)(2)(A) provides an independent

reason for denying a successive application based

on Apprendi. A court of appeals must deny an

application that presents a claim omitted from a

prior application, unless that claim was

"previously unavailable" to the prisoner. If

Brannigan’s latest use of Apprendi is indeed a

"claim" different from the contest to the extra

levels for possessing a weapon, then it had to be

raised at the same time. Section 2244(b)(2)(A)

prevents a prisoner from filing a series of

applications, all based on the same decision, to

challenge different events in his prosecution,

trial, and sentence. Cf. Burris v. Parke, 95 F.3d

465 (7th Cir. 1996) (en banc); In re Page, 179

F.3d 1024 (7th Cir. 1999).

Thus Brannigan loses either way: under

sec.2244(b)(1) if he has successively presented

different aspects of a single claim, and under

sec.2244(b)(2)(A) if he has two genuinely

different claims based on the same opinion of the

Supreme Court. That is why we denied Brannigan’s

latest application with prejudice.

Cudahy, concurring in the judgment. The issue

here is whether the application should be

dismissed with prejudice or without. Of course,

as the majority reiterates, the purpose of 28

U.S.C. sec. 2244 is to preclude (in the most

comprehensive way imaginable) any extended

collateral litigation challenging criminal

convictions. In general, the section prescribes

a "one petition and out" format, so that,

excepting extraordinary circumstances, successive

petitions never survive for consideration on the

merits. This format--and our practice in applying

it--presents three possible outcomes for

Brannigan’s successive Apprendi-based petition.

One possible outcome, arising under sec.

2244(b)(1), is that Brannigan’s claim must be

dismissed with prejudice because it was presented

in a prior application. An identical outcome is

dictated by sec. 2244(b)(2), under which it is

our practice to dismiss with prejudice a claim

not presented in a prior application unless it

relies on "a new rule of constitutional law, made

retroactive to cases on collateral review by the

Supreme Court, that was previously unavailable .

. . ." Only if Brannigan has presented a new

claim that relies on a new rule of constitutional

law that was "previously unavailable" to him,

will we dismiss his application without prejudice

under sec. 2244 (b)(2) because the Supreme Court

has not yet declared Apprendi to be retroactive,

although there is a possibility that it will in

the future.

Judge Easterbrook, the author of today’s

majority opinion, has elsewhere characterized the

effect of sec. 2244 as follows: "If the claim has

been presented before, it has to be dismissed. If

it’s never been presented before, it has to be

dismissed." Constitutional Law Scholars Attempt

to Distill Recent Supreme Court Term, 65 U.S.L.W.

2274, 2287 (1996). It is thus not surprising that

in its haste to ensure that Brannigan never

mounts an Apprendi-based challenge to his

sentence in this court again, the majority

attempts to show that both sec. 2244(b)(1) and

(2) require that Brannigan’s application be

dismissed with prejudice. The majority primarily

and extensively argues that Brannigan has

presented a claim that is identical to the claim

presented in his initial application, and that

Brannigan’s successive application should thus be

dismissed with prejudice under sec. 2244(b)(1).

In the alternative, the majority argues (in a

final paragraph that appears to be little more

than an afterthought) that Brannigan’s claim,

although possibly new, relies on Apprendi--a rule

that was not previously unavailable to him. Thus,

sec. 2244(b)(2) also dictates that Brannigan’s

application be dismissed with prejudice. But, by

devoting its primary effort to the issue of

whether Brannigan is now presenting a new claim

or an old one, the majority may be pursuing an

issue that may have broader ramifications in

other contexts. I will therefore give principal

attention to the majority’s argument about the

meaning of "claim" and bring a secondary focus to

its comments on the alternative ground for

decision, which may turn on the meaning of

"unavailable."

With respect to the question whether we have

two claims or one, I believe that Brannigan’s

arguments--the first challenging a weapons

enhancement and the second challenging a drug

quantity determination--present different claims.

A claim, specifically in the context of the

federal habeas statute, is "a set of facts giving

rise to a right to a legal remedy." See Bennett

v. United States, 119 F.2d 470, 471-72 (7th Cir.

1997) (Posner, C.J.). A claim is therefore

distinguished by its facts (specifically, by its

"nucleus of operative facts"), not just by the

legal principle that it invokes or the body of

law from which it derives. In principle, the

majority would seem to agree since it correctly

notes that "in both civil and criminal practice

it is the underlying events, rather than the

legal arguments advanced to obtain relief from

those events, that demarcate a ’claim.’" Slip op.

at 4. The majority continues along the same line

of analysis by declaring that "it is essential to

define the ’claim’ as a challenge to a particular

step in the case . . . ." Id. However, the

majority then flees the implications of this

analysis by declaring that "[i]t would cut

matters entirely too fine to divide into separate

’claims’ each element of the calculation under

the Sentencing Guidelines." Id. at 5.

In my view, the majority’s position simply

rejects the straightforward definition of a

"claim" as being distinguished by its facts

(specifically, its nucleus of operative facts).

The facts surrounding a weapons enhancement are

obviously quite different from the facts

surrounding a drug quantity determination.

Therefore, allegations relating to one set of

facts would in normal parlance constitute a

"claim" separate and distinct from allegations

relating to another set of facts.

The majority’s position that Brannigan may not

disaggregate the process of U.S.S.G. sec. 5A,

which, in prescribing a sentence, "combines and

specifies the effect of all calculations that go

into the offense level and criminal history,"

slip op. at 5, also results in a definition of

"claim" that might encourage applicants to

challenge their sentence in a manner that is

contrary to generally accepted pleading

requirements. Because the majority refuses to

disaggregate the process of sec. 5A, under the

majority’s reasoning an Apprendi-based challenge

to an applicant’s sentence might require no more

specificity than a general allegation that the

sentencing court somehow violated Apprendi when

it calculated the inmate’s sentence. This, after

all, would be the appropriate event, under the

majority’s theory, to be raised by the petition.

But, were an inmate to file an application

containing such a conclusory allegation, I have

little doubt that we would dismiss it for failure

to allege a sufficiently specific claim. See,

e.g., Dellenbach v. Hawks, 76 F.3d 820, 822 (7th

Cir. 1996) (noting generally that petitions are

dismissed when the petitioner makes conclusory,

rather than specific factual, allegations);

Aleman v. United States, 878 F.2d 1009, 1012-13

(7th Cir. 1989) (conclusory allegation that two

individuals were government informants required

dismissal of sec. 2255 petition). To avoid

dismissal for failure to state a specific claim,

we would require the inmate to specify what

aspect or aspects of his sentencing calculation

ran afoul of Apprendi. This strongly suggests

that the same specific aspects constitute the

"claim" as denoted by sec. 2244(b)(2).

Thus, I believe that, at least with regard to

Apprendi claims, disaggregation of the sentencing

calculation is required when looking at the facts

that form such a claim. That is what Brannigan

has done here, alleging a violation of Apprendi

because of his weapons enhancement in the first

application, and because of the drug quantity

ascribed to him in the second application. These

claims each rely on a different nucleus of facts,

which is specific enough to avoid dismissal as

conclusory.

Perhaps realizing the difficulties of its

primary argument, the majority also invokes a

parade of horribles that raises the possibility

of challenging a single sentence multiple times

based on one challenge for each of "dozens" of

prior convictions affecting the criminal history

level, "plus one for each offense-severity

level." Slip op. at 5. But such a scenario poses

no threat in the real world, for it is hard to

imagine that a Supreme Court decision would

provide a non-frivolous basis for invalidating

each one of "dozens" of prior convictions. And if

an inmate files a barrage of frivolous claims,

based on Apprendi or whatever, they can be

quashed regardless of the provisions of sec. 2244

because this court has an arsenal of weapons to

employ against serial filers of frivolous claims-

-whether convicted inmates or others.

Accordingly, it is entirely reasonable and

consonant with the plain meaning of the statute

to regard a claim based on a firearms enhancement

to be quite different from one based on drug

quantity. The AEDPA requires that we deal

differently with a claim "presented in a prior

application" from one "not presented in a prior

application." Brannigan’s drug quantity claim has

not been presented in a prior application and it

should be dealt with on that basis.

In its final (almost "throw-away") paragraph of

argument, the majority presents an entirely

different rationale for dismissing with

prejudice. Under sec. 2244(b)(2)(A), we will

dismiss a new claim with prejudice unless the

claim "relies on a new rule of constitutional

law, made retroactive to cases on collateral

review by the Supreme Court, that was previously

unavailable . . . ." Crucial here is the answer

to the question whether Apprendi qualifies as a

new rule that was "previously unavailable" to

Brannigan. It may, of course, be argued that

Apprendi is no longer a new rule from Brannigan’s

perspective because it was decided prior to

Brannigan’s previous habeas corpus application.

See Bennett v. United States, 119 F.3d 470, 472

(7th Cir. 1997); In re Medina, 109 F.3d 1556,

1565 (11th Cir. 1997). It seems to me, however,

that the language of sec. 2244(b)(2)(A) ought to

be read as a whole and that, as long as a rule

remains "unavailable," it must correspondingly be

regarded as "new." Cf. Hernandez v. United

States, 226 F.3d 839, 841 (7th Cir. 2000) ("[A]

new rule that is retroactive for purposes of

collateral attack is not ’available’ for a sec.

2255 motion until the Supreme Court has clearly

ruled that this is the case."). In other words,

a rule remains "new" as long as it is

"unavailable." Since the Supreme Court has not

made Apprendi retroactive to cases on collateral

review, the rule remains unavailable to the

applicant and functionally occupies the same

position as if it were literally "new." Whether

the applicant knew of the existence of the rule

or not--whether it was "new" to him--he could not

take advantage of it; it was not available to

him.

However, we have the additional circumstance

here that, when he filed his earlier application,

the applicant knew of Apprendi and attempted to

rely on its (then unavailable) rule.

Significantly, however, the panel then considered

his claim as if Apprendi had been made

retroactive to cases on collateral review by the

Supreme Court. Cf. Hernandez, 226 F.3d at 841.

Roughly speaking, that earlier decision was "on

the merits" in that it applied the Apprendi rule

even though Apprendi was then "unavailable." It

may not be stretching things too far to see this

earlier decision as affording Brannigan all the

consideration due him under the statute. On this

basis, I see the factors arguing for and against

dismissal with prejudice as being in equipoise.

A tie, perhaps, goes to the majority, and on that

basis, I can concur in the judgment.