The opinion
In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-2126
EARNEST L. WHITE,
Applicant,
v.
UNITED STATES OF AMERICA,
Respondent.
____________
Application for an Order Authorizing the United States
District Court to Entertain a Successive Motion for
Collateral Review.
____________
SUBMITTED MAY 3, 2004—DECIDED
JUNE 2, 2004—OPINION JUNE 15, 20041
____________
Before POSNER, DIANE P. WOOD, and EVANS, Circuit Judges.
POSNER, Circuit Judge. Earnest White has applied to us
pursuant to 28 U.S.C. § 2244(b)(3) for leave to file a succes-
sive motion to vacate, under 28 U.S.C. § 2255, his federal
criminal judgment. We cannot grant him leave if his claim
was “presented in a prior application.” § 2244(b)(1). The
claim (that he is not an armed career criminal) was not
1
The decision was rendered on June 2, in order to comply with
the statutory deadline for such orders, but with a notation that an
opinion explaining the basis of the order would follow.
2 No. 04-2126
presented in his previous section 2255 application, but it
was presented in his direct appeal from his conviction, by
his lawyer, in an Anders brief. In an unpublished order we
granted the lawyer’s motion to withdraw and dismissed the
appeal as frivolous.
No reported appellate case addresses the question
whether a direct appeal is a “prior application” within the
meaning of section 2244(b)(1). The full text of the section
suggests not: “A claim presented in a second or successive
habeas corpus application under section 2254 that was pre-
sented in a prior application shall be dismissed.” It is
natural to suppose that “prior application” means “prior
such application.” But this cannot be conclusive, if only
because we are dealing in this case not with an application
for habeas corpus under section 2254, but with a motion
to vacate sentence under section 2255, the habeas corpus
substitute for federal prisoners. Section 2255 contains no
provision directly corresponding to section 2244(b)(1),
though it does require that “a second or successive motion
must be certified as provided in section 2244 by a panel of
the appropriate court of appeals to contain” grounds for
relief similar to those that section 2244 permits to be pre-
sented in a successive application for habeas corpus even
when they had not been presented in a previous one. § 2255
¶ 8. It would be odd if Congress had intended that a federal
prisoner could refile the same motion over and over again
without encountering a bar similar to that of section
2244(b)(1), and we have therefore held that “prior applica-
tion” in that section includes a prior motion under section
2255. Taylor v. Gilkey, 314 F.3d 832, 836 (7th Cir. 2002);
Bennett v. United States, 119 F.3d 468 (7th Cir. 1997). So we
have already moved beyond literalism; and we now take up
the question whether “prior application” can be interpreted
to include “direct appeal.”
No. 04-2126 3
Invoking the doctrine of the law of the case, the courts,
including our court, forbid a prisoner to relitigate in a col-
lateral proceeding an issue that was decided on his direct
appeal. E.g., Harris v. United States, 366 F.3d 593, 595 (7th
Cir. 2004); Olmstead v. United States, 55 F.3d 316, 319 (7th
Cir. 1995); Bear Stops v. United States, 339 F.3d 777, 780 (8th
Cir. 2003); United States v. Aramony, 166 F.3d 655, 661 (4th
Cir. 1999). Relitigation is forbidden (subject to exceptions
built into the law of the case doctrine, of which more later)
even if it is the first collateral attack. It wouldn’t make sense
to let a prisoner get around this rule by his first filing a
section 2255 motion that omits one of the issues presented
in his direct appeal and then following it up with a second
such application that presents the issue. It would make no
difference to any policy reflected in the statute to treat a
second collateral attack that repeats a claim made in the first
collateral attack differently from a second collateral attack
that repeats a claim that the prisoner had made in the direct
appeal from his conviction and sentence.
It is true, turning back to paragraph 8 of section 2255, that
to permit a second or other successive motion to be filed by
a federal prisoner we must certify that it contains either “(1)
newly discovered evidence that . . . would be sufficient to
establish by clear and convincing evidence that no reason-
able factfinder would have found the movant guilty of the
offense,” or “(2) a new rule of constitutional law . . . that
was previously unavailable.” It is difficult to see how either
condition could be satisfied by a motion that merely
repeated a ground that had been presented in the prisoner’s
direct appeal. The same puzzle, however, attends section
2244. Subsection (b)(1), as we know, bars the filing of a
second habeas corpus application that presents the same
claim as the first. Subsection (b)(2) confines the grounds on
which a claim omitted in the first application can be pre-
sented in the second to ones (materially the same as those in
4 No. 04-2126
section 2255 ¶ 8) that could not be satisfied if the prisoner
were merely refiling the same motion. It seems that Con-
gress was being redundant in order to emphasize its
growing distaste (on which see Gonzalez v. Secretary for Dep’t
of Corrections, 366 F.3d 1253, 1269 (11th Cir. 2004)) for repeat
filers. But even without reference to the statutory language,
and recurring again to the doctrine of the law of the case, we
do not see how a federal prisoner—who must file his
motion for relief under 2255 in the very court that convicted
him—can be allowed to do so if all he is doing is rehashing
a claim that had been rejected on the direct appeal.
The provisions in sections 2244 and 2255 governing col-
lateral attacks by prisoners take the place of the normal
preclusion doctrines—res judicata (claim preclusion) and
collateral estoppel (issue preclusion)—but, as is apparent
from our earlier citations, not of the law of the case. And it’s
not as if the law of the case doctrine were a straitjacket that
might cause a miscarriage of justice. Here is how the court
in United States v. Aramony, supra, 166 F.3d at 661 (quoting
earlier opinions), defined the doctrine: once the “decision of
an appellate court establishes ‘the law of the case,’ it ‘must
be followed in all subsequent proceedings in the same case
in the trial court or on a later appeal . . . unless: (1) a subse-
quent trial produces substantially different evidence, (2)
controlling authority has since made a contrary decision of
law applicable to the issue, or (3) the prior decision was
clearly erroneous and would work manifest injustice.’ ”
Broad as this set of exceptions is, none applies to White’s
claim.
It makes no difference that his claim had been presented
in his direct appeal in an Anders brief on the basis of which
we dismissed the appeal as frivolous. Presented is pre-
sented, whether in an Anders brief or in any other format;
and if an appeal is dismissed as frivolous, that is a binding
No. 04-2126 5
adjudication that the claims presented in it had no merit at
all, rather than an invitation to refile. Anyway section
2244(b)(1) bars collateral review so long as the issue was
presented to the court previously; it needn’t have been
adjudicated. Felder v. McVicar, 113 F.3d 696, 698 (7th Cir.
1997); In re Fowlkes, 326 F.3d 542 (4th Cir. 2003); Vancleave v.
Norris, 150 F.3d 926 (8th Cir. 1998); contra (but without
citation to § 2244(b)(1)), In re Lott, 366 F.3d 431 (6th Cir.
2004). But here it was adjudicated.
APPLICATION DENIED.
DIANE P. WOOD, Circuit Judge, concurring in the result.
No one who has been following the law of habeas corpus in
the federal courts since 1996 would assume that it is easy for
a prisoner—federal or state—to raise a potentially successful
claim, even in an initial application. State prisoners seeking
to present a petition for habeas corpus relief under 28 U.S.C.
§ 2254 face a daunting array of procedural requirements that
often stump even experienced lawyers, ranging from
exhaustion of remedies, to fair presentment obligations, to
procedural default rules, and above all, to the strong
deference to the conclusions of fact and law reached by the
state courts. While the situation of federal prisoners is
somewhat different, because they normally must proceed
using a motion under 28 U.S.C. § 2255 for collateral relief
analogous to habeas corpus, and because they are operating
within a unitary system, the differences for the most part are
6 No. 04-2126
only skin-deep. This is especially true when it comes to
second or successive applications for relief. In the
Antiterrorism and Effective Death Penalty Act of 1996, Pub.
L. 104-132 (AEDPA), Congress made parallel changes to
§§ 2254 and 2255 to ensure that successive litigation would
take place only under the most compelling of circumstances.
For state prisoners who wish to proceed under § 2254 with
such an application, the rules are contained in 28 U.S.C.
§ 2244; for federal prisoners who are attempting to file a
successive § 2255 motion, the rules are found in 28 U.S.C.
§ 2255 ¶ 8.
Applicant Earnest L. White is a federal prisoner, and thus
is trying to use the system found in § 2255. He has filed
an application pursuant to § 2255 ¶ 8, which requires those
who wish to file a second or successive motion for relief
under § 2255 to use the procedures set forth in § 2244.
Among the many restrictions on second or successive ap-
plications found in § 2244 is the following:
(b)(1) A claim presented in a second or successive
habeas corpus application under section 2254 that was
presented in a prior application shall be dismissed.
Section 2255 ¶ 8 requires second or successive motions
under that statute to be “certified as provided in section
2244.”
It is common ground between the majority and me that
White has already filed one motion under § 2255. White v.
United States, No. 97-1622 (7th Cir. July 8, 1997) (denying
request for a certificate of appealability from the denial of
the first § 2255 motion). But the remainder of the procedural
history of White’s case is important for present purposes.
Initially, White pleaded guilty to the crime of being a felon
in possession of a firearm. The district court accepted the
plea and sentenced him as an armed career criminal to 180
No. 04-2126 7
months’ incarceration. White appealed, but his lawyer filed
an Anders brief and sought permission to withdraw from the
case, on the ground that there were no non-frivolous issues
to be raised. This court granted that motion. United States v.
White, No. 96-2406 (7th Cir. Sept. 12, 1996). At that point,
White filed the first § 2255 motion noted above. Since the
time it was denied, White has filed a second § 2255 motion,
a motion to correct sentence under 18 U.S.C. § 3582, and two
habeas corpus petitions under 28 U.S.C. § 2241. This string
of filings have all presented claims that properly belong in
a motion under § 2255, as they concern the correctness of his
conviction and sentence. Now, in his current application,
White wants to challenge various aspects of the sentencing
court’s decision to treat him an armed career criminal.
The question before us is a narrow one: is White’s current
effort to file a successive § 2255 motion absolutely barred
because he has already presented this claim in something
that qualifies as a prior “application” for purposes of
§ 2244(b)(1) as incorporated in § 2255 ¶ 8, or should White’s
current application be denied because it fails to meet the
substantive criteria for a new claim—namely, because it
relies neither on newly discovered evidence nor a new rule
of constitutional law that the Supreme Court has made
retroactive to cases on collateral review. See § 2255 ¶ 8(1),
(2). The majority concludes that the former reason is the
correct one on which to rely, by construing the term
“application” to include not only applications for collateral
relief, but also claims presented on direct appeal. It con-
cedes, in doing so, that this reading would be impossible for
a state prisoner proceeding under §§ 2254 and 2244. Never-
theless, relying on analogies to the law of the case doctrine,
it chooses to adopt an entirely different rule for § 2255
applicants. Worse yet (although I am not taking issue with
this aspect of its ruling), it does this in a case where there
was nothing but an Anders brief on direct appeal.
8 No. 04-2126
This approach is, in my view, inconsistent with the stat-
utory scheme Congress has outlined, in which it has care-
fully set forth exactly what weight must be given to earlier
findings of fact or conclusions of law that support a claim.
If the fact that a claim as a whole has already been pre-
sented on direct appeal were enough to bring the entire
claim within the bar of § 2244(b)(1), the existence of newly
discovered evidence would be beside the point. (If the ma-
jority means to imply that the law of the case will not bar
the successive claim when exceptions to the normal law of
the case doctrine apply, my response is that such a rule
might at times be broader than Congress intended in
AEDPA, and at times narrower. The only way to respect
congressional intent is to use the standards Congress itself
has provided.) The law of the case doctrine, and its close
cousin issue preclusion, exist so that there will be finality in
determinations of facts between the same parties. But as
even the majority acknowledges in its opinion, preclusion
principles operate differently in habeas proceedings. Taylor
v. United States, 798 F.2d 271, 272 (7th Cir. 1986), cert. denied,
479 U.S. 1056 (1987) (stating that res judicata does not apply
in § 2255 proceedings (citing Sanders v. United States, 373
U.S. 1, 8 (1963))).
Harris v. United States, 366 F.3d 593 (7th Cir. 2004), on
which the majority relies, does not resolve the question
before us. In that case, petitioner Harris initially sought re-
lief under § 2255 because his lawyer failed to file a timely
appeal. The district court granted his motion, and he then
appealed his sentence to this court. In that functional
equivalent to a direct appeal, we considered and rejected a
claim that counsel had been ineffective for failing to argue
for a downward adjustment to Harris’s sentence under the
safety valve. See United States v. Harris, 230 F.3d 1054 (7th
Cir. 2000). Having lost that round, Harris filed a new
motion under § 2255, in which he argued again that counsel
No. 04-2126 9
had been ineffective for failing to invoke the safety valve. In
the Alice-in-Wonderland world of habeas corpus, this was
his “first” § 2255 petition. Thus, it did not implicate any of
the statutory provisions now before us. This court decided
that Harris was bound by the earlier resolution of the safety
valve issue, reiterating our frequent warnings to defendants
and counsel not to present ineffective assistance of counsel
claims prematurely, before the record is fully developed.
Harris, 366 F.3d at 595. After stating this conclusion, the
opinion went on to hold that the ineffectiveness claim was
meritless in any event. Id. at 596.
Harris says nothing at all about the question whether the
presentation of the ineffectiveness claim on direct appeal
had any effect on Harris’s ability to file a second or succes-
sive § 2255 petition. If Harris had omitted the ineffectiveness
claim from his first true § 2255 petition and had then tried
to file a successive petition, under the analysis that I am
advocating the court would find that he was not barred by
§ 2244(b)(1), but that his claim could not go forward as a
successive petition under § 2255 ¶ 8 unless he could point
to either newly discovered evidence or a new retroactive
rule of constitutional law. Because, in the actual case, Harris
did present the ineffectiveness claim in his first full § 2255
motion, he would have been barred from raising it in any
successive motion by § 2244(b)(1).
None of the other cases to which the majority refers lead
to a contrary result. Olmstead v. United States, 55 F.3d 316
(7th Cir. 1995), and Bear Stops v. United States, 339 F.3d 777
(8th Cir. 2003), avoiding the procedural knots in Harris, in-
volve straightforward applications of the rules governing a
federal prisoner’s first § 2255 motion. United States v.
Aramony, 166 F.3d 655 (4th Cir. 1999), which the majority
quotes at length, did not even involve a collateral proceed-
ing and thus sheds little light on the issue facing us here.
10 No. 04-2126
The habeas corpus statutes draw a distinct line between a
collateral attack on a criminal conviction and a direct
appeal. Section 2254 speaks of a person who is “in custody
pursuant to the judgment of a State court,” 28 U.S.C.
§ 2254(a), and section 2255 applies to a “prisoner in custody
under sentence of a court established by Act of Congress,”
28 U.S.C. § 2255 ¶ 1. In keeping with that distinction, § 2244
sets forth the rules for handling applications for a writ
of habeas corpus filed by state prisoners; these rules, as
already noted, also apply to motions filed by federal pris-
oners under § 2255. It strains the plain language of
§ 2244(b)(1) past the breaking point to read the phrase
habeas corpus “application” to mean, as applied to § 2255
cases, both motions under § 2255 and direct appeals. This
reading creates a sharp dichotomy between the regimes
applicable to § 2254 and § 2255, in the face of the efforts
Congress made in 1996 to create parallel systems. It dras-
tically restricts the availability of § 2255 relief for federal
prisoners, because it means that notwithstanding new
evidence or new retroactive rules of constitutional laws,
no claim may be presented at all if it was raised on direct
appeal. This point is worth stressing: § 2244(b)(1) creates a
threshold bar that applicants must pass before a court of
appeals can even consider whether the substantive criteria
for authorizing a successive petition have been met.
The rule that the majority is adopting here effectively
reads § 2255 ¶ 8 out of the statute, except for the small
number of cases in which the new evidence or the new rule
might reveal ineffective assistance of counsel, Massaro v.
United States, 538 U.S. 500, 504 (2003), or some other fun-
damental point that was utterly unknown at the time of the
trial. There may be instances in which a federal prisoner
raises an issue on direct appeal based on incomplete infor-
mation, addressing for example an alleged Brady violation
or an improper ex parte communication, only to discover
No. 04-2126 11
after further investigation that her constitutional rights were
seriously undermined. Under the rule adopted by the
majority, these claims would be inadmissible in any collat-
eral attack because they were included in the direct appeal.
Likewise, a state defendant who raises a Fourth
Amendment claim but was not provided an opportunity for
full and fair litigation “at trial or on direct review,” Stone v.
Powell, 428 U.S. 465, 495 n.37 (1976), could obtain habeas
review of that narrow point. A similarly situated federal
defendant, however, would be out of luck.
Further, the intersection of the rule proposed by the ma-
jority with that of procedural default creates an impossible
situation for defendants. If a federal defendant fails to raise
a claim on direct appeal and is unable to show cause or
prejudice for that omission, that claim cannot be raised for
the first time on collateral review. See, e.g., Mankarious v.
United States, 282 F.3d 940, 943 (7th Cir. 2002); Prewitt v.
United States, 83 F.3d 812, 816 (7th Cir. 1996). If she does
present it on direct appeal, however, she is now also barred
from collateral review.
In my view, while Congress undoubtedly wanted to make
it difficult to pursue second or successive petitions, it did
not mean to prevent the courts of appeals from evaluating
the requirements of § 2255 ¶ 8, nor did it intend to invite
them to craft a new federal common-law rule of law of the
case to replace those stringent statutory critera. And
stringent they are: the number of successful applications for
permission to file a second or successive motion under
§ 2255 (or application under § 2254) is vanishingly small.
Indeed, eight years after the passage of AEDPA, I cannot
personally remember a single such application that has been
granted in this circuit, though I have not examined these
records recently.
12 No. 04-2126
The claims that White is trying to raise in the present
repetitive application for permission to file a successive
motion under § 2255 should not be barred altogether from
our consideration because of anything that happened in the
direct appeal from his conviction and sentence. Instead,
we should ask whether White has presented these particular
claims in any prior motion under § 2255. If the answer were
yes, then and only then would dismissal on this ground be
proper. Since the answer is no, however, we can and must
turn to the criteria Congress set forth for evaluating whether
his successive motion is entitled to go forward. Once we
reach that step, it is easy to see that his application must be
denied. As noted above, he wants to attack the sentencing
court’s armed career criminal determination, by arguing
that he is actually innocent of the enhancement, that his
attorney should have objected to the enhancement, and that
the court clearly erred when it imposed the enhancement.
White has cited neither new facts nor a new rule of constitu-
tional law made retroactive to cases on collateral review in
support of his proposed claim. It is on this ground, not on
the ground that we cannot even look at his claims because
they appeared in a prior “application,” that we should rule.
I therefore concur only in the outcome reached by the
majority.
No. 04-2126 13
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—6-15-04