In the

United States Court of Appeals
              For the Seventh Circuit

No. 12-1282

T HOMAS V ITRANO,
                                         Petitioner-Appellant,
                               v.

U NITED S TATES OF A MERICA,
                                         Respondent-Appellee.


          Appeal from the United States District Court
               for the Eastern District of Wisconsin.
        No. 2:08-cv-00257-RTR—Rudolph T. Randa, Judge.



      A RGUED F EBRUARY 28, 2013—D ECIDED JULY 1, 2013




 Before M ANION, K ANNE, and T INDER, Circuit Judges.
  T INDER, Circuit Judge. This case requires us to consider
whether the district court abused its discretion in
denying Thomas Vitrano’s motion to amend his 28 U.S.C.
§ 2255 petition. For the reasons that follow, we find no
abuse of discretion and affirm.


                    I. BACKGROUND
 Vitrano was convicted pursuant to his guilty plea of
possessing a firearm as a felon, 18 U.S.C. § 922(g)(1), and
2                                                No. 12-1282

possessing a firearm while subject to a domestic abuse
injunction, 

He was sentenced to 120
months’ imprisonment. See 18 U.S.C. § 924(a)(2). The
government challenged the sentence, arguing that
Vitrano should have faced a statutory minimum of at
least 180 months’ imprisonment because of three prior
“violent felony” convictions that subjected him to the
Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(1).
(The prior convictions were for escape and recklessly
endangering safety.) We agreed and remanded for
resentencing. See United States v. Vitrano, 

(7th Cir. 2005). Although Vitrano’s ACCA guidelines
range was 235-293 months, the district court imposed an
above-guidelines sentence of 360 months. Vitrano ap-
pealed and we affirmed. See United States v. Vitrano, 

(7th Cir. 2007).
   On March 20, 2008, Vitrano moved to vacate his sen-
tence pursuant to 28 U.S.C. § 2255. In his pro se filing,
he asserted that his Fifth Amendment rights had been
violated, that he had received ineffective assistance of
counsel, and that the district court had erred in sen-
tencing him as an armed career criminal. Vitrano
claimed that he had recently located a discharge
certificate fully restoring the civil rights he lost in con-
nection with a 1977 conviction for endangering safety;
if valid, the certificate would render the conviction un-
countable for ACCA purposes, regardless of whether
it constituted a “violent felony.” See 18 U.S.C. § 921(a)(20);
Buchmeier v. United States, 

, 563-64 (7th Cir.
2009) (en banc). In the course of the proceedings, Vitrano
claimed the existence of two different original discharge
No. 12-1282                                               3

certificates. Forensic testing of both certificates along
with a witness’s recanted testimony and testimony
from other witnesses led the government to conclude
that both certificates were “provably fake.” Vitrano v.
United States, 

, 232 (7th Cir. 2011) (“Vitrano
III”). So the government opposed Vitrano’s § 2255
motion, and Vitrano was indicted with perjury and two
counts of corrupt influence in connection with the dis-
charge certificates. See 18 U.S.C. § 1623(a); 18 U.S.C.
§ 1512(b)(1) & (c)(2). The § 2255 proceedings were held
in abeyance on June 5, 2009, pending resolution of the
criminal case. On December 15, 2009, the district court
“invite[d]” Vitrano to file a reply in support of his § 2255
motion.
  Instead of filing a reply, however, on January 12, 2010,
Vitrano, represented by counsel, sought leave to amend
his § 2255 motion. He argued that under Chambers v.
United States, 

(2009), his escape conviction
is not a “violent felony” for ACCA purposes. He also
argued that his convictions for reckless endanger-
ment did not qualify as violent felonies. His proposed
amended § 2255 motion failed to assert ineffective assis-
tance of counsel and made no mention of the alleged
discharge certificates. The government opposed the
motion to amend, contending that by not filing a reply
to his initial § 2255 filing, Vitrano had abandoned the
motion “in the face of looming defeat” and was barred
from filing what was effectively a second or successive
§ 2255 motion without first obtaining this court’s per-
mission. See 28 U.S.C. § 2255(h); R. Governing § 2255 Pro-
ceedings for the U.S. Dist. Cts. 9.
4                                              No. 12-1282

  The district court agreed with the government, dis-
missed Vitrano’s original § 2255 motion as abandoned,
and denied his motion to amend as an unauthorized
second or successive collateral attack. On appeal, we
observed that the district court’s conclusion that
Vitrano had abandoned his original claims “put the cart
a bit before the horse.” Vitrano 

. We
explained that “[h]ad Vitrano wanted to completely
abandon his original claims, he could have moved
to dismiss them, or simply stopped pursuing his case
altogether.” 

We held that the
motion to amend did not constitute a “second or suc-
cessive” § 2255 petition because the initial motion had
not been conclusively decided, and we remanded for
consideration of the motion to amend. 

  On remand, the district court denied Vitrano’s motion
to amend. The court cited bad faith and dilatory
motive and explained: “By abandoning the claims in
his original motion, Vitrano’s amendment is an attempt
to chart an entirely different course in the face of evi-
dence that his original claims are without merit.” The
court determined that this was “meant to evade the
limitation on second or successive motions”—“to avoid
adjudication on the merits of his initial claims, thereby
obtaining a ‘tactical advantage in the face of impending
defeat.’ ” (quoting Garrett v. United States, 

,
943 (7th Cir. 1999)). The court gave Vitrano an oppor-
tunity to make his “next move”—ordering him to file a
reply brief in support of his original motion, or move
to voluntarily dismiss the case. Vitrano chose the latter
option, and the district court entered judgment dis-
missing the action.
No. 12-1282                                              5

                    II. DISCUSSION
   We must decide whether the district court abused
its discretion in denying Vitrano’s motion to amend his
§ 2255 petition. “An abuse of discretion occurs when a
district court resolves a matter in a way that no rea-
sonable jurist would, or when its decision strikes us as
fundamentally wrong, arbitrary or fanciful.” United
States v. Purnell, 

, 1189 (7th Cir. 2012)
(quotation and citation omitted). We will reverse a
denial of leave to amend “only if no reasonable person
could agree with [the district court’s] decision.” Carroll
v. Stryker Corp., 

, 684 (7th Cir. 2011) (quota-
tion and citation omitted).
  Vitrano argues that the district court erred in denying
his motion because the court relied on a determination
that Vitrano acted in bad faith in bringing his original
§ 2255 petition. (He assumes for purposes of this
appeal that the original petition was brought in bad
faith.) Vitrano claims that his motion to amend was
brought in good faith and is his only chance to present
his new claims—that his convictions for escape and
reckless endangerment are not violent felonies for pur-
poses of the ACCA—to the court. The government re-
sponds that the denial of the motion to amend was rea-
sonable because Vitrano was trying to avoid adjudica-
tion on his original and fraudulent claims by seeking to
“amend” rather than dismissing them. The government
submits that this intent is confirmed by Vitrano’s subse-
quent dismissal of the original claims. Because the pro-
posed amended claims are entirely new claims and unre-
6                                                 No. 12-1282

lated to the original claims, the government argues that
the district court’s finding of bad faith was justified.
Alternatively, the government argues that the proposed
amended claims are untimely and without merit.
  The Antiterrorism and Effective Death Penalty Act of
1996 (AEDPA) “allows every prisoner one full oppor-
tunity to seek collateral review. Part of that opportu-
nity—part of every civil case—is an entitlement to add
or drop issues while the litigation proceeds.” Johnson v.
United States, 

, 805 (7th Cir. 1999). Neverthe-
less, “that entitlement is far from boundless. It is circum-
scribed by Federal Rule of Civil Procedure 15(a) . . . which
provides that courts should grant leave to amend freely
only ‘when justice so requires.’ ” Vitrano 

(quoting Fed. R. Civ. P. 15(a)(2)). A district court has
“wide discretion” in deciding whether to grant leave to
amend. Id.; see also 

(“This is not
to say that the judge is required to permit the amend-
ments.”). “Justice generally does not require such leave
if a movant demonstrates ‘undue delay, bad faith, or
dilatory motive.’ ” Vitrano 

(quoting
Airborne Beepers & Video, Inc. v. AT&T Mobility, LLC, 

, 666 (7th Cir. 2007)); see also Rutledge v. United
States, 

, 1051 (7th Cir. 2000) (“A district
court can refuse to let the defendant amend the petition
for reasons such as delay.”).
  The propriety of the proposed amendment should
be viewed in light of AEDPA, which governs § 2255
proceedings and imposes tight limits on second or suc-
cessive petitions. See Suggs v. United States, 705 F.3d
No. 12-1282                                                 7

279, 285 (7th Cir. 2013), cert. denied, 

(U.S.
May 13, 2013) (No. 12-978). Under AEDPA, second or
successive motions must be authorized by the court of
appeals. See 28 U.S.C. §§ 2244, 2255(h); R. Governing
§ 2255 Proceedings for the U.S. Dist. Cts. 9; United States
v. Obeid, 

, 901 (7th Cir. 2013). The federal
courts should “police attempted end-runs around the
successive petition limitations of § 2255.” Hare v. United
States, 

, 880 n.3 (7th Cir. 2012); cf. Graham v.
Johnson, 

, 780 (5th Cir. 1999) (noting that
AEDPA “’incorporates reforms to curb the abuse of the
statutory writ of habeas corpus’”) (quoting H.R. Conf. Rep.
No. 104-518, at 111 (1996), reprinted in 1996 U.S.C.C.A.N.
944, 944)).
  Vitrano is correct that it is the motion to amend that
must be made in bad faith. But he errs in asserting that
the district court relied on bad faith that was not
relevant to his motion to amend. As the government
aptly describes it, the court relied “on the disconnect
between the original motion and the proposed ‘amend-
ment’ to find that Vitrano was not really amending
the original motion, but was instead supplanting it
entirely to evade” AEDPA’s restrictions on second or
successive motions. The proposed amended claims are
not amendments in any fair sense of the word; they are
not intended to “save” or supplement the original
claims whatsoever. Cf. Griggs v. Pace Am. Grp., Inc., 

, 881 (9th Cir. 1999) (stating that “amendment
should be permitted unless it will not save the com-
plaint”). Rather, the proposed amendment is in-
tended to substitute entirely one petition for another
8                                             No. 12-1282

and avoid the consequences of Vitrano’s actions in pur-
suing the original, fraudulent claims.
  Had Vitrano intended to amend his original claims,
he could have supplemented them and pursued both
the original claims and the new Begay claims. See Begay
v. United States, 

(2008). Even if resolution
of the amended petition would have been “relatively
easy” as compared to an evaluation of the authenticity
of the discharge certificates, nothing prevented Vitrano
from pursuing both theories of relief. If Vitrano was
wrong about whether his prior convictions counted as
violent felonies under the ACCA, he could still prevail if
he established that the civil rights he lost in connection
with the 1977 conviction had been fully restored. (As
we know, the ACCA requires three predicate offenses
to support the sentence enhancement. 18 U.S.C.
§ 924(e)(1).)
  The bad faith is in the attempt to supplant entirely
the original claims to avoid a dismissal on the merits and
thereby evade the limitation on second or succes-
sive motions. On the prior appeal, we noted that the
district court had assumed “Vitrano was abandoning his
initial claims altogether merely by filing the motion [to
amend].” Vitrano 

. We observed that
“[m]aybe that was his ultimate intent, but until the
district court rules on the motion to amend, and Vitrano
makes his next move, we cannot know for sure.” 

the district court has denied the motion and given
Vitrano the opportunity to pursue his original claims, and
Vitrano has declined to file a reply in support of and
No. 12-1282                                               9

voluntarily dismissed his original petition, we can be
sure that he intended to abandon his original claims
altogether.
  The district court did not abuse its discretion in
denying Vitrano’s motion to amend his § 2255 petition
when he was abandoning his original claims in the face
of defeat and attempting an end-run around AEDPA’s
limitations on second or successive motions. We do not
impute bad faith to Vitrano’s counsel who did what he
could to bring what might have been a good claim
under Begay. The bad faith is Vitrano’s own, and a
result of his abuse of the writ in pursuing a fraudulent
petition. That said, the district court’s decision to deny
Vitrano “a tactical advantage in the face of impending
defeat,” 

, is within the bounds
of reasonableness.
  Moreover, the amended § 2255 motion is untimely.
Under 28 U.S.C. § 2255(f)(3), a motion is timely if filed
within one year of “the date on which the right asserted
was initially recognized by the Supreme Court, if that
right has been newly recognized by the Supreme Court
and made retroactively applicable to cases on collateral
review.” The right Vitrano asserts—the right not to
receive an enhanced sentence based on an incorrect
understanding of the term “violent felony”—was first
recognized by the Supreme Court in Begay. Cf. Narvaez
v. United States, 

, 625 (7th Cir. 2011) (stating
that “the right not to receive an enhanced sentence
based on an incorrect understanding of the term ‘crime of
violence’ . . . was recognized by the Supreme Court in
10                                                No. 12-1282

Begay and Chambers”). Begay held that to qualify as a
“violent felony” under the residual clause of the ACCA, a
crime must be “roughly similar, in kind as well as in
degree of risk posed, to the examples” listed in the
residual clause, that is, burglary, arson, extortion, or
crimes involving the use of 

.
Thus, a crime must “present[] a serious potential risk
of physical injury to another” and “involve purposeful,
‘violent,’ and ‘aggressive’ conduct.” 

(The
Supreme Court later deemed the “purposeful, violent,
and aggressive” language as merely descriptive of the
result in Begay. Sykes v. United States, 

, 2275-
76 (2011).)
  Chambers held that the Illinois “failure to report” crime
was not a “violent felony” under the ACCA because it
does not “involve conduct that presents a serious
potential risk of physical injury to another” and “amounts
to a form of inaction” rather than “purposeful, ‘violent,’
and ‘aggressive’ 

. Chambers is
an extension of and follows from Begay. See Berry v.
United States, 468 F. App’x 924, 925 (11th Cir. Mar. 22,
2012); cf. United States v. Jones, 

, 700 n.1 (7th
Cir. 2012) (noting that Chambers utilizes a combination
of the approaches of James and Begay), cert. denied, 

(2013). Indeed, Vitrano’s argument relies
heavily on United States v. Templeton, 

(7th
Cir. 2008) (holding convictions for escape under
Wisconsin law did not necessarily constitute crimes of
violence), United States v. Smith, 

(7th Cir.
2008) (holding convictions for criminal recklessness
under Indiana law did not constitute violent felonies
No. 12-1282                                               11

under the ACCA), and United States v. Bishop, 341 F. App’x
239, 240 (7th Cir. 2009) (holding second-degree reckless
endangerment under Wisconsin law is not a crime of
violence under the career-offender guideline), all of
which rely on Begay, and none of which rely on Cham-
bers. Reliance on these authorities lends support to
the conclusion that the right Vitrano asserts was
initially recognized in Begay, not Chambers.
   And even if there is an argument that the right Vitrano
asserts with respect to his escape conviction was initially
recognized in Chambers (and we do not agree with such
a proposition, see 

(“A walk-
away is not a crime of violence under Begay.”)), the
same cannot be said with respect to his two convictions
for endangering safety. The right not to be sentenced
under the ACCA for a crime of recklessness was trig-
gered by Begay. See Newbern v. United States, No. 10-64-
DRH, 

, at *7 (S.D. Ill. Dec. 26, 2012) (“[T]he
right not to receive an enhanced sentence based [on] an
incorrect understanding that reckless discharge of a
firearm . . . qualified as a crime of violence for purposes
of career offender status was ‘initially recognized’ in
Begay, not Chambers.”). Furthermore, even assuming
that the motion to amend was timely with respect to the
escape conviction, Vitrano would run into concerns of
dilatoriness in asserting his claims with respect to the
endangering safety convictions. And the district court
did conclude that dilatory motive was relevant to its
decision to deny leave to amend.
   Vitrano had until one year after the date of Begay to
file his amended § 2255 motion. Begay was decided on
12                                              No. 12-1282

April 16, 2008. Vitrano filed his motion for leave to
amend on January 12, 2010—more than one year after
Begay. Thus, his proposed amended claims are barred
as untimely, and the district court’s denial of leave to
amend is further justified based on the futility of the
proposed amendment. See, e.g., Indep. Trust Corp. v. Stewart
Info. Servs. Corp., 

, 943 (7th Cir. 2012).


                   III. CONCLUSION
  The district court’s judgment is A FFIRMED.




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