USCA1 Opinion
UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
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No. 97-1579
DAVID P. PRATT,
Petitioner, Appellant,
v.
UNITED STATES OF AMERICA,
Respondent, Appellee.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Steven J. McAuliffe, U.S. District Judge]
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Before
Selya, Boudin and Stahl,
Circuit Judges.
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Leo T. Sorokin, Federal Defender Office, for appellant.
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Peter E. Papps, First Assistant United States Attorney, with
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whom Paul M. Gagnon, United States Attorney, was on brief, for
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appellee.
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November 6, 1997
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SELYA, Circuit Judge. Petitioner-appellant David P.
SELYA, Circuit Judge.
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Pratt, who is currently serving a federal sentence, filed a
second petition for post-conviction relief under 28 U.S.C. 2255
(1994 and Supp. 1996).1 Relying on the Antiterrorism and
Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132,
110 Stat. 1214 (1996) (codified in scattered sections of 28
U.S.C.), the district court dismissed the petition pro forma
___ _____
because Pratt had not obtained clearance from the court of
appeals. AEDPA's novelty, together with the odd timing and
peculiar circumstances of the petitioner's case, take us down a
sometimes recondite legal trail. In the end, we conclude that
AEDPA applies here and that, properly construed, it bars Pratt's
attempt to prosecute a second habeas petition.
I. BACKGROUND
I. BACKGROUND
In April of 1994, a federal petit jury in the District
of New Hampshire heard testimony that, after a local police chief
confiscated several of Pratt's firearms, Pratt sent him a
mutilated pig carcass. Weighing this and other evidence, the
jury found Pratt guilty of mailing a threatening communication in
violation of 18 U.S.C. 876 (1994). The judge departed upward
and sentenced Pratt to a lengthy prison term. The appeal period
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1In terms, 28 U.S.C. 2255 speaks of a "motion" rather than
a "petition," yet the latter word is more commonly used to
describe the vehicle by which a person held in custody seeks
post-conviction relief. Although there may be occasions on which
the terms have different meanings, this is not one of them; and,
therefore, we use the term "petition" throughout this opinion in
order to avoid confusion. By the same token, we use the terms
"section 2255 petition," "habeas petition," and "petition for
post-conviction relief" interchangeably.
2
expired and Pratt's conviction became final.
After unsuccessfully moving pro se to file a tardy
notice of appeal, Pratt obtained fresh counsel and filed his
first section 2255 petition on March 9, 1995. He alleged a
violation of his Sixth Amendment right to the effective
assistance of counsel premised on a claim that, despite repeated
requests, his trial attorney had failed to perfect a timeous
appeal of the conviction. Pratt did not aver, however, that his
attorney's performance at trial was constitutionally defective.
The district court granted the petition in an unpublished order,
vacated the judgment, and resentenced Pratt (thus triggering a
new appeal period). Pratt's new lawyer filed a timely appeal,
but to no avail; a panel of this court affirmed the conviction.
See Pratt v. United States, 73 F.3d 450, 454 (1st Cir. 1996).2
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On January 17, 1997, Pratt filed his second section
2255 petition, this time seeking to set aside his conviction on
the ground that his original lawyer's lack of trial acumen
violated Pratt's Sixth Amendment right to the effective
assistance of counsel. On April 8, 1997, the district court
dismissed this petition without prejudice for failure to comport
with AEDPA's "prior approval" prerequisite for second or
successive habeas petitions. This appeal ensued.
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2The panel did, however, remand, while retaining appellate
jurisdiction, to obtain a clear statement of the reasons
underlying the upward departure. See Pratt, 73 F.3d at 453-54.
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After Judge McAuliffe released an explanatory statement, see
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United States v. Pratt, 940 F. Supp. 424 (D.N.H. 1996), the panel
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issued an unpublished order dated August 8, 1996, making the
affirmance unconditional.
3
II. ANALYSIS
II. ANALYSIS
AEDPA took effect on April 24, 1996, after the district
court resolved Pratt's initial habeas petition but before his
second petition eventuated. The new law imposes significant
restrictions on second or successive habeas petitions brought on
behalf of federal prisoners. These restrictions have both
procedural and substantive dimensions. Procedurally, AEDPA
incorporates by reference in section 2255 the same screen that
AEDPA makes applicable to second or successive habeas petitions
prosecuted on behalf of persons being held in state custody. The
statute thus requires a federal prisoner, before docketing a
second or successive habeas petition in the district court, to
obtain from "the appropriate court of appeals . . . an order
authorizing the district court to consider the application." 28
U.S.C. 2244(b)(3)(A) (as incorporated in 28 U.S.C. 2255); see
___
also Felker v. Turpin, 116 S. Ct. 2333, 2337 (1996).
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Substantively, AEDPA directs the court of appeals to condition
its authorization of a second or successive petition on the
applicant's showing of either:
(1) newly discovered evidence that, if proven
and viewed in light of the evidence as a
whole, would be sufficient to establish by
clear and convincing evidence that no
reasonable factfinder would have found the
movant guilty of the offense; or
(2) a new rule of constitutional law, made
retroactive to cases on collateral review by
the Supreme Court, that was previously
unavailable.
28 U.S.C. 2255.
4
This appeal necessitates that we determine whether
Pratt's second section 2255 petition comes within AEDPA's reach,
and if so, whether the statute permits us to authorize further
proceedings in the district court. Before pursuing either of
these inquiries, however, we pause to address the government's
contention that this court lacks jurisdiction to hear the instant
appeal.
A.
A.
In the proceedings below, the district court dismissed
Pratt's second habeas petition without prejudice, noting that he
had failed to obtain clearance from the court of appeals as
required by AEDPA. The government contends that, inasmuch as the
order is not dispositive of any issue, it is not a "final order,"
28 U.S.C. 1291 (1994), and thus cannot support the weight of an
appeal. The government is wrong.
AEDPA's prior approval provision allocates subject-
matter jurisdiction to the court of appeals by stripping the
district court of jurisdiction over a second or successive habeas
petition unless and until the court of appeals has decreed that
it may go forward. See Nu ez v. United States, 96 F.3d 990, 991
___ _____ _____________
(7th Cir. 1996). This statutory directive means that a district
court, faced with an unapproved second or successive habeas
petition, must either dismiss it, see id., or transfer it to the
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appropriate court of appeals,3 see Benton v. Washington, 106 F.3d
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3Transfers can be accomplished by resort to a statute that
provides in pertinent part:
5
162, 164 (7th Cir. 1996); Liriano v. United States, 95 F.3d 119,
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122-23 (2d Cir. 1996). The court below chose the former course.
If Pratt had acknowledged that AEDPA governed his
latest petition, the district court's decision might not have
been appealable. Here, however, Pratt disputes AEDPA's
applicability. He can regain access to the district court (and
thereby vindicate his theory) only by an appeal and a subsequent
holding that the district court erred in applying AEDPA to his
latest petition. The district court's order is therefore final
in the relevant sense, see In re Nineteen Appeals Arising Out of
___ ______________________________________
the San Juan DuPont Plaza Hotel Fire Litig., 982 F.2d 603, 608
_____________________________________________
(1st Cir. 1992) (explaining that section 1291's finality
requirement has a practical cast), and it is appealable. That
the district court's dismissal was without prejudice is of no
moment. Appellate courts routinely exercise jurisdiction over
claims dismissed without prejudice when the dismissal contains
sufficient indicia of finality. See, e.g., Presbytery of N.J. v.
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Whenever a civil action is filed in a court .
. . or an appeal . . . is noticed for or
filed with such a court and that court finds
that there is a want of jurisdiction, the
court shall, if it is in the interest of
justice, transfer such action or appeal to
any other such court in which the action or
appeal could have been brought at the time it
was filed or noticed, and the action or
appeal shall proceed as if it had been filed
in or noticed for the court to which it is
transferred on the date upon which it was
actually filed in or noticed for the court
from which it is transferred.
28 U.S.C. 1631 (1994).
6
Florio, 40 F.3d 1454, 1461 (3d Cir. 1994); Kobleur v. Group
______ _______ _____
Hosp'n & Med. Servs., Inc., 954 F.2d 705, 708 (11th Cir. 1992);
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Brady v. Sullivan, 893 F.2d 872, 876 n.8 (7th Cir. 1989); Local
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No. 714 v. Greater Portland Transit Dist., 589 F.2d 1, 6 (1st
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Cir. 1978).
To be sure, Pratt also contends that even if AEDPA
applies generally to cases in the same temporal posture its
provisions do not bar his pursuit of post-conviction relief. To
this extent, the government's jurisdictional jousting may hit
closer to home. Nevertheless, we need not spend much time on
this largely metaphysical debate. In very similar circumstances,
the Seventh Circuit has crafted a pragmatic approach to this sort
of problem. It has declared that it will treat a notice of
appeal as a request for an authorization to file a second section
2255 petition and thus preserve appellate jurisdiction if doing
so will save unnecessary paperwork without sacrificing any
party's substantial rights. See Nu ez, 96 F.3d at 991.
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Pratt invites us to employ that approach here, the
appellate record is adequate to the task, and taking this avenue
expedites adjudication of the matters in issue. We therefore
hold that, when a district court dismisses a second or successive
petition without prejudice because the court of appeals has not
approved its prosecution, and the petitioner appeals, the court
of appeals may in its discretion treat the notice of appeal as a
request for authorization to file a second or successive
petition. We exercise that discretion here to the extent, if at
7
all, that it may be necessary to do so. Either way, we have
jurisdictionto hearand determinetheissues raisedin Pratt'sappeal.
B.
B.
The filing dates of Pratt's two section 2255 petitions
straddle AEDPA's effective date. On this basis, Pratt maintains
that the question whether the statute applies to his second
petition must be answered in the negative because doing so would
place an impermissible retroactive burden on his first petition.
We disagree.
We begin our analysis by remarking the obvious:
applying a statute to a pleading that was filed after the
statute's effective date is not really a "retroactive"
application in the classic sense. Here, moreover, we know on the
best of authority that Congress intended that AEDPA apply to all
section 2255 petitions filed after its effective date (April 24,
1996). See Lindh v. Murphy, 117 S. Ct. 2059, 2063 (1997).
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We know, too, that the Supreme Court recently and
uncritically applied AEDPA to a prisoner's second habeas petition
even though the prisoner had filed his first petition prior to
AEDPA's enactment. See Felker, 116 S. Ct. at 2336-37. Several
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courts of appeals have followed suit. See, e.g., In re Medina,
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109 F.3d 1556, 1561-62 (11th Cir. 1997); Roldan v. United States,
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96 F.3d 1013, 1014 (7th Cir. 1996); Hatch v. Oklahoma, 92 F.3d
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1012, 1014 (10th Cir. 1996). This approach is sound not only
from a legal perspective but also from the standpoint of common
8
sense. After all, if pre-AEDPA jurisprudence somehow attached to
an entire course of post-conviction proceedings by virtue of a
prisoner's having filed a pre-enactment petition at some point
along the way, then the Court's opinion in Felker would be
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drained of all meaning.
Faced with these formidable obstacles, Pratt attempts
to refocus the definition of retroactivity. He reminds us of the
Supreme Court's directive that a court which confronts a possible
retroactivity problem should ask whether a freshly minted statute
"attaches new legal consequences to events completed before its
enactment." Landgraf v. USI Film Prods., 511 U.S. 244, 270
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(1994). Wielding this club, Pratt asserts that the application
of AEDPA to his second petition impermissibly alters the legal
consequences of his first petition (which was fully adjudicated
prior to AEDPA's passage). This argument, in turn, leads him to
embrace the "mousetrapping" doctrine. See Burris v. Parke, 95
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F.3d 465, 468-69 (7th Cir. 1996). Based on this construct (which
to our knowledge has not been adopted outside the Seventh
Circuit), he argues that, even if AEDPA otherwise might control
his second habeas petition, it should not do so in the
circumstances of this case.4
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4This extra step is a necessary element of Pratt's position
because an affirmative answer to the above-described Landgraf
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inquiry does not automatically render a statute impermissibly
retroactive. To the contrary, the Landgraf Court warned that a
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"statute does not operate [retroactively] merely because it . . .
upsets expectations based on prior law." 511 U.S. at 269. A
conclusion of retroactivity instead "comes at the end of a
process of judgment concerning the nature and extent of the
change in the law and the degree of connection between the
9
The particulars of Pratt's claim are fuzzy. He appears
to be saying, with minimal elaboration, that the district court
would have entertained his second section 2255 petition under the
prevailing pre-AEDPA standard, see McCleskey v. Zant, 499 U.S.
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467, 493 (1991) (discussing the parameters of the "abuse of the
writ" principle), and so, application of AEDPA's more stringent
standard to his second section 2255 petition will attach new and
unforeseen legal consequences to the filing of his first petition
(in effect penalizing him retroactively for having failed to
include all possible constitutional claims in his first
petition). In Pratt's view, this adverse effect on his post-
conviction litigation strategy "mousetraps" him.
Even were we to address the mousetrapping doctrine a
matter that we leave for another day Pratt could not take
advantage of it. The doctrine requires a habeas petitioner to
show that he consciously chose to withhold a potential ground for
relief from his first petition because he detrimentally relied
upon pre-AEDPA law. See, e.g., Alexander v. United States, 121
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F.3d 312, 314 (7th Cir. 1997); Roldan, 96 F.3d at 1014; see also
______ ___ ____
In re Magwood, 113 F.3d 1544, 1552-53 (11th Cir. 1997). Pratt
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cannot carry this burden. Although he states perfunctorily that
he "relied upon the abuse of the writ law as it existed when he
filed his [original] 2255" petition, he offers no legal or
factual support for this conclusory statement. More is needed.
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operation of the new rule and a relevant past event." Id. at
___
270.
10
See In re Medina, 109 F.3d at 1562 n.1 (holding that a
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petitioner's "one-sentence conclusory statement" did not
establish detrimental reliance).
More important than Pratt's subjective understanding is
the utter lack of any facts remotely suggesting detrimental
reliance. "In assessing detrimental reliance vel non, the test
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is one of objective reasonableness under the circumstances."
Henry v. Connolly, 910 F.2d 1000, 1003 (1st Cir. 1990).
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Accordingly, the question here is not whether Pratt actually
believed, when he filed his first habeas petition, that then-
prevailing law would allow him to file a second petition on the
withheld ground of ineffective assistance of trial counsel so
long as he could pass muster under McCleskey; the question,
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rather, is whether such a subjective belief, even if it existed,
is objectively reasonable.
As a general matter, reliance upon pre-AEDPA law as a
basis for permitting a second petition rarely will clear this
hurdle. The "cause and prejudice" test that McCleskey imposed to
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screen out abusive deployments of the writ is notoriously
difficult to pass. See, e.g., McCleskey, 499 U.S. at 500; Murray
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v. Carrier, 477 U.S. 478, 495-96 (1986); United States v. Shaid,
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937 F.2d 228, 236 (5th Cir. 1991); see generally Erwin
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Chemerinsky, Federal Jurisdiction 15.4.3, at 809-11 (2d ed.
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1994).5 Pratt cannot satisfy its rigors.
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5Of course, the Seventh Circuit did make such a
determination in Burris, 95 F.3d at 469-70. But there the court
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predicated its finding of detrimental reliance on the notion that
11
The only reason that Pratt advances for exhuming his
second habeas petition from the abuse of the writ graveyard is
our statement in Bonneau v. United States, 961 F.2d 17, 23 (1st
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Cir. 1992), to the effect that a prisoner who files a section
2255 petition in which he alleges that his attorney failed to
perfect a direct appeal "must be treated like any other appellant
appealing for the first time." But this statement has absolutely
nothing to do with abuses of the writ; as Bonneau itself makes
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clear in the immediately succeeding sentence, the language on
which Pratt relies only "means that [the section 2255 petitioner]
does not have to show that there are meritorious issues to be
appealed." Id. Because Bonneau merely restates the
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uncontroversial rule that a federal habeas petitioner who alleges
a Sixth Amendment deprivation grounded in his attorney's failure
to perfect a direct appeal need not prove actual prejudice, see
___
Penson v. Ohio, 488 U.S. 75, 88 (1988), the single sentence that
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Pratt wrests out of context fails to serve his ends.
With Bonneau out of the picture, Pratt's cupboard is
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bare; he has not proffered any other basis for a finding of
detrimental reliance. Consequently, we have no occasion to
consider the merits of the mousetrapping doctrine because Pratt's
case does not come within its ambit. Accord In re Magwood, 113
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the government had waived any abuse of the writ defense to a
second habeas petition during proceedings directed at the
resolution of the first petition. See id. In contrast, Pratt
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does not allege that any statement or conduct on the government's
part lulled him into believing that it would condone a second
section 2255 petition.
12
F.2d at 1552-53 (distinguishing, but not endorsing, Burris); In
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re Medina, 109 F.3d at 1562-63 (same).
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To recapitulate, since Pratt has not shown that
application of AEDPA to his second section 2255 petition works an
impermissible retroactive effect, his second petition is, as a
temporal matter, within AEDPA's jurisprudential reach. See
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Lindh, 117 S. Ct. at 2063.
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C.
C.
Pratt has another string to his bow. He maintains that
the instant petition is not "second or successive" within AEDPA's
contemplation and, hence, is not subject to the new statutory
restrictions.
Like prior habeas statutes, AEDPA does not define the
mantra "second or successive." Courts that have interpreted the
same phrase in relation to the pre-AEDPA version of 28 U.S.C.
2244(b) have determined that a numerically second petition is not
"second or successive" if it attacks a different criminal
judgment or if the earlier petition terminated without a judgment
on the merits. See 2 James S. Liebman & Randy Hertz, Federal
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Habeas Corpus Practice and Procedure 28.3a, at 916-20 (2d ed.
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1994). We agree that AEDPA does not blunt the force of these
interpretations, but we are not persuaded that the emergent rule
pertains in the circumstances presented here.
1.
1.
Decisions that construe the meaning of "second or
13
successive" most frequently concern a court's dismissal of a
prisoner's first habeas petition for failure to exhaust state
remedies. See, e.g., Howard v. Lewis, 905 F.2d 1318, 1322-23
___ ____ ______ _____
(9th Cir. 1990); Hill v. Lockhart, 894 F.2d 1009, 1010 (8th Cir.
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1990) (en banc). Recent post-AEDPA cases have hewed to the line
exemplified by Howard and Hill and have preserved the rule that
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if the original petition did not produce an adjudication on the
merits a prisoner's later petition will not be deemed "second or
successive." See, e.g., In re Gasery, 116 F.3d 1051, 1052 (5th
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Cir. 1997); Christy v. Horn, 115 F.3d 201, 208 (3d Cir. 1997);
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Dickinson v. Maine, 101 F.3d 791, 791 (1st Cir. 1996); Camarano
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v. Irvin, 98 F.3d 44, 46 (2d Cir. 1996).
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In a federal forum, habeas petitions that involve
federal prisoners, 28 U.S.C. 2255, differ from those that
involve state prisoners, 28 U.S.C. 2241-2254, in that the
former are not constrained by an exhaustion requirement. See 2
___
Liebman & Hertz, supra, 41.4a, at 1196. In particular, claims
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of ineffective assistance of counsel embodied in a section 2255
petition generally are not deemed procedurally defaulted simply
because they were not raised on direct appeal. See, e.g., United
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States v. Soldevila-Lopez, 17 F.3d 480, 485 (1st Cir. 1994);
______ _______________
United States v. Daniels, 3 F.3d 25, 26-27 (1st Cir. 1993). The
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absence of a procedural bar opens an opportunity for overlap: a
federal prisoner bent on asserting an ineffective assistance
claim can simultaneously file a direct appeal of his conviction
and a section 2255 petition, resulting in two federal courts
14
concurrently reviewing the same judgment. To prevent such
redundancy, we have ruled that except in extraordinary
circumstances we will dismiss a section 2255 petition claiming
ineffective assistance of counsel as premature until the
prisoner's direct appeal concludes. See United States v. Diaz-
___ _____________ _____
Martinez, 71 F.3d 946, 953 (1st Cir. 1995); United States v.
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Gordon, 634 F.2d 638, 638-39 (1st Cir. 1980).
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Pratt seizes upon this body of authority and argues
that, under it, the district court probably would have dismissed
as premature his ineffective assistance of trial counsel claim
had he asserted it in his original petition. Thus, Pratt
theorizes, failure to raise the claim in the initial petition is
no different, practically speaking, than if the court had
dismissed it without deciding the merits. Based on that analogy,
he posits that applying AEDPA's restrictions to pretermit his
later petition produces a fundamentally unfair whipsaw effect.
We find Pratt's suppositional ex post justification for
__ ____
his failure to include the claim of ineffective assistance of
trial counsel in his initial habeas petition unconvincing for two
reasons. First, and most obviously, we have classified section
2255 petitions as premature only when the petitioner's direct
appeal was still pending. See, e.g., Diaz-Martinez, 71 F.3d at
___ ____ _____________
953; Gordon, 634 F.2d at 638-39. Because no appeal was pending
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in Pratt's case when he began his quest for collateral relief,
the claim of ineffective assistance of trial counsel would not
have been subject to dismissal as premature under our precedents.
15
Second, even if an included ineffective assistance of trial
counsel claim might have been sidetracked once the district court
cleared the way for a direct appeal, cf. United States v.
___ ______________
DeFalco, 644 F.2d 132, 137 (3d Cir. 1979) (en banc), Pratt still
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had ample incentive to include the claim in his first petition.
After all, he could not predict whether the district court would
grant his original petition on the single ground that he actually
asserted ineffective assistance anent counsel's failure to file
a timely appeal and, had the district court denied relief,
Pratt could not have asserted an unpreserved claim either on
appeal or in a second petition.6
We discern no unfairness in holding Pratt to this
regimen. The requirement that all available claims be presented
in a prisoner's first habeas petition is consistent not only with
the spirit of AEDPA's restrictions on second and successive
habeas petitions, but also with the preexisting abuse of the writ
principle. The requirement serves the singularly salutary
purpose of forcing federal habeas petitioners to think through
all potential post-conviction claims and to consolidate them for
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6Although the existence of an incentive may affect the
equitable balance, we note that, even in the absence of any
incentive, the reported cases refuse to accept the position that
Pratt espouses. For example, in Martinez-Villareal v. Stewart,
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118 F.3d 628 (9th Cir. 1997) (per curiam), cert. granted, 66
_____ _______
U.S.L.W. 3157 (U.S. Oct. 14, 1997) (No. 97-300), a case in which
the habeas petitioner had absolutely no incentive to include a
claim of incompetency to be executed in his first petition in
all events, that claim automatically would have been deemed
premature the Ninth Circuit stated that "a competency claim
must be raised in the first petition." Id. at 634; accord In re
___ ______ _____
Davis, 121 F.3d 952, 955 (5th Cir. 1997).
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16
a unitary presentation to the district court. This exercise
advances the cause of judicial efficiency and further justifies
barring Pratt's second petition. See Richmond v. Ricketts, 774
___ ________ ________
F.2d 957, 960 (9th Cir. 1985).
2.
2.
Pratt mounts yet another argument in support of his
plea that we not treat his numerically second petition as "second
or successive." This argument derives from the Rules Governing
Section 2255 Proceedings a set of rules that the Supreme Court
has promulgated pursuant to congressionally delegated authority.
See 28 U.S.C. 2072 (1994). Like all similar federal rules,
___
these rules carry the force and effect of positive law. See
___
Swazo v. Wyoming Dep't of Corrections State Penitentiary Warden,
_____ ______________________________________________________
23 F.3d 332, 333 (10th Cir. 1994); see also McCoy v.
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Massachusetts Inst. of Tech., 950 F.2d 13, 21 (1st Cir. 1991).
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Rule 2(c) provides in relevant part that a habeas petition "shall
be limited to the assertion of a claim for relief against one
judgment only of the district court."
AEDPA did not alter Rule 2(c), and the rule is
potentially significant here because, after the district court
granted Pratt's first section 2255 petition, it vacated Pratt's
sentence and resentenced him in order to trigger a new appeal
period. On this basis, Pratt asserts that the second petition
challenges a different judgment and is therefore not "second or
successive." This argument is attractive at first blush, but
blemishes emerge upon closer study.
17
In the first place, although Pratt grasped avidly for
this apparent lifeline when it surfaced at oral argument in this
court, the appearance marked its debut in the case. It is firmly
settled in this circuit that arguments not advanced and developed
in an appellant's brief are deemed waived. See Sandstrom v.
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ChemLawn Corp., 904 F.2d 83, 87 (1st Cir. 1990).
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In the second place, this laglast argument is more a
makeweight than a lifeline. The district court's method of
restoring Pratt's right to an appeal vacating the sentence and
then reimposing it is standard practice among federal courts.
See, e.g., United States v. Pearce, 992 F.2d 1021, 1023 (10th
___ ____ _____________ ______
Cir. 1993); Page v. United States, 884 F.2d 300, 302 (7th Cir.
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1989). Although a reentered judgment of conviction, identical in
all material respects to the judgment that it supplanted,
technically may be "new," the vital question for present purposes
is whether it is a type of new judgment that is subject to
challenge in a second habeas petition without regard to earlier
petitions addressed to the original judgment. We hold that it is
not.
Under ordinary circumstances, a prisoner who
successfully brings a habeas petition and is retried,
reconvicted, and resentenced may collaterally attack the new
judgment without fear of hindrance by the legal restrictions that
encumber second or successive habeas petitions. See Palmer v.
___ ______
Clarke, 961 F.2d 771, 774-75 (8th Cir. 1992); Richmond, 774 F.2d
______ ________
at 960. Nevertheless, this opportunity to petition freely for
18
post-conviction relief after a new judgment of conviction is not
unfettered. As a general rule, a prisoner who had both the
incentive and the ability to raise a particular claim in his
first petition for post-conviction relief, but declined to assert
it, cannot raise it the second time around.
To illustrate, if the relief granted in response to an
initial habeas petition addresses only the petitioner's sentence,
he customarily cannot re-petition after resentencing based on
alleged errors affecting the underlying conviction. See
___
Richmond, 774 F.2d at 960. The rationale for such a holding is
________
clear: the prisoner had ample incentive to challenge the
underlying conviction in his first request for post-conviction
relief since success on a claim of trial error would have wiped
out the sentence and obviated the need to address any sentencing
bevues; and, assuming that the prisoner had the ability to raise
the trial-error claim in his first petition, there is no
principled reason why the restrictions designed for second or
successive petitions should not apply. See id.
___ ___
This rationale applies squarely to Pratt. He had every
incentive to assert his claim of trial error in his initial
section 2255 petition. If the district court agreed that his
lawyer's trial performance was constitutionally defective, then
there would have been no need to appeal a faulty conviction. The
objective that Congress had in mind when it placed curbs on a
prisoner's freedom to file multiple habeas petitions would be
frustrated if a prisoner could negate the legal effect of this
19
kind of omission by the simple expedient of filing another
petition.
There is a related reason why the reentered judgment
does not transform the legal landscape. It is an abecedarian
rule that, in a second petition for post-conviction relief, the
prisoner must be able to point to a new claim of error that is,
a claim of error unavailable the first time around (because, say,
it could not have been discovered in the exercise of reasonable
diligence or it arose after the resolution of the initial
petition). See 2 Liebman & Hertz, supra, 26.3b, at 854-56; id.
___ _____ ___
28.1, at 896. For example, if a habeas petition results in a
retrial that yields a new conviction, the prisoner is free to
seek further habeas relief based on errors that transpired in the
course of the new trial. See Palmer, 961 F.2d at 774-75.
___ ______
Similarly, if a habeas petition results in a resentencing, the
prisoner is free to petition for further relief based on errors
that transpired in the course of the resentencing. See Richmond,
___ ________
774 F.2d at 960. In both cases, the prisoner is seeking redress
for errors that he could not have challenged in a prior post-
conviction proceeding unless he were clairvoyant. Unpursued
errors arising out of events that occurred before the filing of
the initial habeas petition, and which could have been, but were
not, challenged in that petition, fall into a different category.
Those errors normally are not eligible for inclusion in a
subsequent habeas petition. See Palmer, 961 F.2d at 774-75.
___ ______
Measured against the rule, as explicated by these
20
examples, Pratt's asseveration falls short. His current section
2255 petition seeks to set aside the underlying conviction on a
ground that he could have raised, but did not, when he filed his
first petition. Pratt does not assert any claim of error that
became available only after, or as a result of, the court's entry
of a new judgment of conviction. Thus, his numerically second
petition is in fact a second petition as AEDPA uses that term.
D.
D.
The end draws near. Pratt concedes in his appellate
brief that he is unable to satisfy AEDPA's preconditions for
filing a second section 2255 petition. In any event, this
concession is compelled by the record: Pratt neither claims to
possess newly discovered evidence in support of the petition nor
invokes a neoteric rule of constitutional law. See 28 U.S.C.
___
2255.
We need go no further. Pratt failed to marshal all his
claims of error in his first section 2255 petition, and he must
now pay the piper. AEDPA governs here, and, on the facts of this
case, AEDPA's clear language prohibits Pratt from rectifying his
omission by means of a second petition.
The district court's dismissal of the habeas petition
The district court's dismissal of the habeas petition
_______________________________________________________
is affirmed. The petitioner's appeal is treated concurrently as
is affirmed. The petitioner's appeal is treated concurrently as
___________ ___________________________________________________
a request for leave to file a second or successive habeas
a request for leave to file a second or successive habeas
_________________________________________________________________
petition and, as such, it is denied.
petition and, as such, it is denied.
___________________________________
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