HAMILTON, Circuit Judge.
Wayne Hare pled guilty during trial to being part of a methamphetamine distribution conspiracy and was sentenced to 292 months in prison. According to Hare, he later learned that his counsel had failed to tell him of a pre-trial plea offer from the government — one involving significantly less prison time than he received in the end. Hare has already tried once and failed to win relief from his conviction and sentence under 28 U.S.C. § 2255 on other grounds. He now seeks permission to file a successive collateral attack on his sentence pursuant to 28 U.S.C. § 2255(h), claiming that his counsel provided ineffective assistance by failing to inform him of the earlier plea offer. Hare does not point to new evidence of his innocence, so to file a successive petition, he must rely on "a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable." § 2255(h). He relies on the Supreme Court's recent decision in Missouri v. Frye, ___ U.S. ___, 132 S.Ct. 1399, 182 L.Ed.2d 379 (2012), which also
Frye does not support Hare's request for a successive motion because it did not announce a new rule of constitutional law. The Frye Court merely applied the Sixth Amendment right to effective assistance of counsel according to the test first articulated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and established in the plea-bargaining context in Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). See Frye, 132 S.Ct. at 1409 ("This application of Strickland to the instances of an uncommunicated, lapsed plea does nothing to alter the standard laid out in Hill."); see also In re Perez, 682 F.3d 930, 932-33 (11th Cir.2012) (concluding Frye did not announce new rule of constitutional law that would allow successive motion under § 2255(h)).
Neither Frye nor its companion case, Lafler v. Cooper, ___ U.S. ___, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012), directly addressed the old rule/new rule question, but the Court's language repeatedly and clearly spoke of applying an established rule to the present facts. More important, the Court's actions show that it was applying an old rule that the state courts had misapplied. Frye and Cooper were both decided in the state post-conviction context, where state courts ordinarily are not held to proper application of new rules. See Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). We will not assume that the Court believed it was contradicting the Antiterrorism and Effective Death Penalty Act and Teague by retroactively applying in a collateral proceeding a new rule that it had just announced. See Perez, 682 F.3d at 933-34; but see Cooper, 132 S.Ct. at 1392, 1395 (Scalia, J., dissenting) (arguing that Frye and Cooper announced new rules).
Hare relies on dicta in United States v. Moya, 676 F.3d 1211, 1214 (10th Cir.2012), suggesting that the Court "articulated a new standard for showing prejudice" in Frye by setting forth a "more general test." But as the Tenth Circuit also pointed out, Frye explicitly reaffirmed Hill as applied to its facts. Id. The standard in Frye differs only to the extent that the procedural facts differed. In Hill the defendant went to trial on defective advice, and in Frye the defendant pled guilty on defective advice. This difference required the Court to look "not at whether the defendant would have proceeded to trial absent ineffective assistance but whether he would have accepted the offer to plead pursuant to the terms earlier proposed." Frye, 132 S.Ct. at 1410. Both Hill and Frye apply "Strickland's inquiry into whether `the result of the proceeding would have been different'" to a reasonable probability. Id., quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052.
We recognized long ago the potential for ineffective assistance claims arising from uncommunicated plea offers. See Johnson v. Duckworth, 793 F.2d 898, 902 (7th Cir. 1986) (counsel failed to let defendant decide whether to accept or reject plea offer; denying relief based on "unique circumstances" of defendant's youth and confusion, and counsel's decision to reject plea offer based on consultations with defendant's parents). Since Johnson we have recognized the right to effective assistance in the plea negotiation process in various factual circumstances. See, e.g., Paters v. United States, 159 F.3d 1043 (7th Cir.1998) (legally faulty advice about plea offer and defendant's options); Gallo-Vasquez v. United States, 402 F.3d 793, 798 (7th Cir. 2005) (recognizing that faulty advice to reject plea offer may satisfy Strickland performance prong). We are not alone in
We must address one other issue. Hare points out that, as a matter of fact, he could not have included the present claim of ineffective assistance in his first § 2255 petition because he did not learn of the uncommunicated plea offer until after the district court had already rejected that first petition. Although the claim may have been legally available to him in theory, he says he did not have the factual knowledge he needed to bring it.
Hare first raised the issue of the uncommunicated plea offer in his pro se June 3, 2004 motion under Rule 60(b). The district court construed that motion as a successive § 2255 petition and dismissed it for lack of jurisdiction because Hare did not ask for and obtain our approval to file a successive collateral attack. Hare filed a timely motion to reconsider under Rule 59(e), which the district court also rejected. We affirmed those dispositions in June 2006 in an unpublished order. See also Nunez v. United States, 96 F.3d 990, 991 (7th Cir.1996) ("No matter how powerful a petitioner's showing, only this court may authorize the commencement of a second or successive petition."); Curry v. United States, 307 F.3d 664, 666 (7th Cir. 2002) (noting that a Rule 59(e) motion attacking the denial of a successive collateral attack should itself be construed as a successive attack). Hare's Rule 60(b) and Rule 59(e) motions were in fact successive collateral petitions and were correctly dismissed because they were not authorized.
This may seem like a hard result, perhaps made harder by the fact that Hare has been trying pro se to raise seemingly credible claims of ineffective assistance from counsel. But there are limits to our ability to accommodate a defendant's failure to follow the procedures established by Congress with the intent of encouraging finality and limiting most defendants to one round of collateral review, especially when there is no plausible claim of actual innocence. The claims Hare now asserts under Frye have been available to him since before he pled guilty, and he has known about the uncommunicated plea offer for eight years. The Supreme Court's recent decisions in Frye and Cooper may have reminded Hare of this issue, but they did not create a new rule of law and do not excuse his prior failure to seek permission to file his prior successive petitions.
Accordingly, we DENY authorization and DISMISS the application for permission to file a successive collateral attack.