
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                              _________________________          No. 97-1579                                   DAVID P. PRATT,                                Petitioner, Appellant,                                          v.                              UNITED STATES OF AMERICA,                                Respondent, Appellee.                              _________________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF NEW HAMPSHIRE                   [Hon. Steven J. McAuliffe, U.S. District Judge]                                              ___________________                              _________________________                                        Before                               Selya, Boudin and Stahl,                                   Circuit Judges.                                   ______________                              _________________________               Leo T. Sorokin, Federal Defender Office, for appellant.               ______________               Peter E. Papps, First Assistant United States Attorney, with               ______________          whom Paul  M. Gagnon, United  States Attorney, was on  brief, for               _______________          appellee.                              _________________________                                   November 6, 1997                              _________________________                    SELYA,  Circuit Judge.   Petitioner-appellant  David P.                    SELYA,  Circuit Judge.                            _____________          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                                        ____________________               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          ___ _____    _____________                    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.                                        ____________________               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.                                             ___ _____          After  Judge  McAuliffe released  an  explanatory  statement, see                                                                        ___          United States v. Pratt, 940 F. Supp. 424 (D.N.H. 1996), the panel          _____________    _____          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).          ____  ______       ______          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                                             ___ ___          appropriate court of appeals,3 see Benton v. Washington, 106 F.3d                                         ___ ______    __________                                        ____________________               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,                                     _______    _____________          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.                                           ___  ____  __________________                                        ____________________                    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);          ___________________________          Brady v.  Sullivan, 893 F.2d 872, 876  n.8 (7th Cir. 1989); Local          _____     ________                                          _____          No. 714  v. Greater  Portland Transit Dist.,  589 F.2d 1,  6 (1st          _______     _______________________________          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.                                       ___ _____                    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).                  ___ _____    ______                    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                               ___ ______          courts  of appeals have followed suit.   See, e.g., In re Medina,                                                   ___  ____  ____________          109 F.3d 1556, 1561-62 (11th Cir. 1997); Roldan v. United States,                                                   ______    _____________          96 F.3d  1013, 1014 (7th Cir.  1996); Hatch v. Oklahoma,  92 F.3d                                                _____    ________          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                                                           ______          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                        ________     _________________          (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                                                   ___ ______     _____          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                                        ____________________               4This extra step is a necessary element of Pratt's  position          because  an affirmative  answer to  the above-described  Landgraf                                                                   ________          inquiry  does not  automatically  render a  statute impermissibly          retroactive.  To  the contrary, the Landgraf Court  warned that a                                              ________          "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.                                          ___  _________    ____          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                                ___  ____  _________     _____________          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          ______________          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.                                        ____________________          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          ___  ______________          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                                                         ___ ___          is  one  of objective  reasonableness  under the  circumstances."          Henry  v.  Connolly,  910  F.2d   1000,  1003  (1st  Cir.  1990).          _____      ________          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,                                                 _________          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                                                       _________          screen  out  abusive  deployments  of  the  writ  is  notoriously          difficult to pass.  See, e.g., McCleskey, 499 U.S. at 500; Murray                              ___  ____  _________                   ______          v. Carrier, 477 U.S. 478,  495-96 (1986); United States v. Shaid,             _______                                _____________    _____          937  F.2d  228,  236  (5th   Cir.  1991);  see  generally   Erwin                                                     ___  _________          Chemerinsky, Federal  Jurisdiction    15.4.3, at  809-11 (2d  ed.                       _____________________          1994).5  Pratt cannot satisfy its rigors.                                        ____________________               5Of   course,  the   Seventh  Circuit   did   make  such   a          determination in Burris,  95 F.3d at 469-70.  But there the court                           ______          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                            _______    _____________          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                                                       _______          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                         ___               _______          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          ______    ____          Pratt wrests out of context fails to serve his ends.                    With  Bonneau out of  the picture, Pratt's  cupboard is                          _______          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                                                  ______ _____________                                        ____________________          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                                               ___ ___          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                                                                ______   __          re Medina, 109 F.3d at 1562-63 (same).          _________                    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                                                                        ___          Lindh, 117 S. Ct. at 2063.          _____                                          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                           ___                                      _______          Habeas Corpus Practice  and Procedure   28.3a, at  916-20 (2d ed.          _____________________________________          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.                            ____    ________          1990) (en banc).  Recent post-AEDPA cases  have hewed to the line          exemplified by Howard  and Hill and have preserved  the rule that                         ______      ____          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                        ___  ____   ____________          Cir. 1997);  Christy v. Horn, 115  F.3d 201, 208 (3d  Cir. 1997);                       _______    ____          Dickinson v. Maine,  101 F.3d 791, 791 (1st  Cir. 1996); Camarano          _________    _____                                       ________          v. Irvin, 98 F.3d 44, 46 (2d Cir. 1996).             _____                    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                           _____          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                                                          ___  ____  ______          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          _____________    _______          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.          ________                                        ______________          Gordon, 634 F.2d 638, 638-39 (1st Cir. 1980).          ______                    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               ______          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          _______          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                                        ____________________               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,                                            __________________     _______          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).          _____                                          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.                                                      ___  ____   _____          Massachusetts Inst.  of Tech., 950  F.2d 13, 21 (1st  Cir. 1991).          _____________________________          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.                                                          ___  _________          ChemLawn Corp., 904 F.2d 83, 87 (1st Cir. 1990).          ______________                    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.                       ____    _____________          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.          ___________________________________                                          21
