In the
United States Court of Appeals
For the Seventh Circuit

No. 98-1803

Eugene A. Fischer,

Petitioner-Appellant,

v.

United States of America,

Respondent-Appellee.

Appeal from the United States District Court
for the Southern District of Illinois.
No. 97 C 4116--James L. Foreman, Judge.

Argued October 23, 2001--Decided April 4, 2002



  Before Harlington Wood, Jr., Cudahy, and
Kanne, Circuit Judges.

  Kanne, Circuit Judge. Eugene Fischer
seeks habeas relief from his conviction
of being the principal administrator of a
continuing criminal enterprise (CCE),
alleging that his conviction was obtained
in violation of Richardson v. United
States, 526 U.S. 813, 119 S. Ct. 1707,
143 L. Ed. 2d 985 (1999). The district
court denied habeas relief, and we
affirm.

I.   History

  Over thirteen years ago, Fischer was
convicted of violating 21 U.S.C. sec.sec.
841(a)(1) and 846 by conspiring to
distribute more than 300 tons of
marijuana. The jury also found that
Fischer had participated as a principal
administrator, organizer, or leader of a
CCE in violation of 21 U.S.C. sec. 848
(the "drug kingpin" statute), and
assessed $30 million in criminal
forfeitures against him. As required by
the drug kingpin statute, the district
court sentenced Fischer to life
imprisonment. Fischer was also given a
35-year sentence, to run concurrently, on
the conspiracy conviction. In United
States v. Kramer, 955 F.2d 479, 492 (7th
Cir. 1992), we affirmed Fischer’s
convictions and sentences in all
respects.

A. Habeas Proceedings before the
District Court

  On April 21, 1997, Fischer filed a
petition for writ of habeas corpus under
28 U.S.C. sec. 2255, raising the
following claims: (1) the prosecutor
lacked authority to bring the case; (2)
the grand jury concurrence form was
improper; (3) the amendments to the
indictment were improper; (4) the trial
judge had an actual conflict and should
have recused himself; (5) his trial
counsel was ineffective; and (6) the
trial judge improperly admitted certain
prejudicial evidence./1 Although he had
challenged the lack of jury unanimity
with respect to his CCE conviction on
direct appeal, he did not do so in his
habeas petition. On March 12, 1998, the
district court denied Fischer’s habeas
petition.


B.   Fischer’s Rule 35 Motion

  On March 30, 1993, Fischer filed a Fed.
R. Crim. P. 35 motion seeking to correct
or reduce his sentence. In 1997, relying
on the Supreme Court’s then-recent
decision in Rutledge v. United States,
517 U.S. 292, 116 S. Ct. 1241, 134 L. Ed.
2d 419 (1996), the district court granted
Fischer’s motion in part and denied it in
part. In Rutledge, the Supreme Court held
that a sec. 846 conspiracy is a lesser-
included offense of a sec. 848 CCE. See
517 U.S. at 307. Under Rutledge,
convictions for both conspiracy and CCE
offenses arising from the same facts
constitute double jeopardy, and one of
the convictions must be vacated. See id.
In the present case, the district court
vacated Fischer’s conspiracy conviction
and sentence, and refunded a fifty-dollar
special assessment in accordance with
Rutledge. See United States v. Fischer,
205 F.3d 967, 969 (7th Cir. 2000). The
CCE conviction and life sentence remained
unaltered. See id. Fischer appealed,
arguing that the district court abused
its discretion by vacating his conspiracy
conviction and sentence instead of his
CCE conviction and sentence. See id. at
970. On February 29, 2000, we affirmed
the district court. See id. at 973.

  During Fischer’s Rule 35 appeal, Fischer
attempted to challenge the lack of jury
unanimity with respect to his CCE
convictions pursuant to Richardson. In
Richardson, the Supreme Court held that a
jury must unanimously agree not only that
a defendant charged under sec. 848
engaged in a continuing series of
violations, but also must unanimously
agree on which specific violations made
up that continuing series. See 526 U.S.
at 817-24. After granting the parties’
request to brief the Richardson issue, we
held that because Fischer’s argument
under Richardson attacked his underlying
CCE conviction and not the actual
sentence imposed, a Rule 35 motion was
not the proper means by which to assert
his claim. See 205 F.3d at 972. We
concluded by noting that such challenges
to a conviction should be raised under 28
U.S.C. sec. 2255, not under Rule 35. See
id.

C.    Certificate of Appealability

  After the district court denied
Fischer’s habeas petition on March 12,
1998, Fischer requested a certificate of
appealability from the district court,
which denied that request on March 28,
1998. On April 10, 1998, Fischer sought a
certificate of appealability from this
court for the claims raised in his habeas
petition--which did not include a
challenge to the lack of jury unanimity.
On April 26, 2000, Fischer renewed his
motion for a certificate of appealability
and petitioned to amend his application
for a certificate of appealability to
include a Richardson claim. We denied a
certificate of appealability for the
claims arising out of Fischer’s initial
habeas petition, but granted a
certificate of appealability limited
solely to the Richardson issue.

II.    Analysis

  As an initial matter, we must address
the government’s argument that we lack
jurisdiction under 28 U.S.C. sec. 2255 to
hear Fischer’s claim. The relevant
provision of that statute provides that
"[a] 1-year period of limitation shall
apply to a motion under this section. The
limitation period shall run from . . .
the date on which the right asserted was
initially recognized by the Supreme
Court, if that right has been newly
recognized by the Supreme Court and made
retroactively applicable to cases on
collateral review." 28 U.S.C. sec.
2255(3). There is no dispute that
Richardson created a "newly recognized"
right, see, e.g., United States v. Lopez,
248 F.3d 427, 429 (5th Cir. 2001), or
that it is generally retroactively
applicable on collateral review. See
Lanier v. United States, 220 F.3d 833,
838 (7th Cir. 2000); see also Lopez, 248
F.3d at 432; Murr v. United States, 200
F.3d 895, 906 (6th Cir. 2000) (stating
that "in light of Bousley[ v. United
States, 523 U.S. 614, 118 S. Ct. 1604,
140 L. Ed. 2d 828 (1998)] Richardson
applies retroactively" on collateral
review). The government contends that
only the Supreme Court may determine
whether a decision is "made retroactively
applicable to cases on collateral
review." However, we rejected this
precise argument in Ashley v. United
States, 266 F.3d 671, 673 (7th Cir. 2001)
and held that "[d]istrict and appellate
courts, no less than the Supreme Court,
may issue opinions ’holding’ that a
decision applies retroactively to cases
on collateral review." The final issue is
whether Fischer filed his motion within
one year of the date that Richardson was
"made retroactive." In Ashley, 266 F.3d
at 674, we held that the clock began to
run once this court declared a decision
to apply retroactively. On June 12, 2000,
we declared Richardson to be
retroactively applicable on collateral
review. See Lanier, 220 F.3d at 838.
Therefore, because Fischer filed his
claim before that date, we have
jurisdiction to hear his Richardson claim
under sec. 2255(3).

  However, just because we have
jurisdiction under sec. 2255(3) to hear
Fischer’s Richardson claim does not mean
that his claim is properly before us. In
order for us to consider a particular
ground for habeas relief under the
Antiterrorism and Effective Death Penalty
Act of 1996 ("AEDPA"), Pub.L. 104-132,
110 Stat. 1214 (1996) (codified at 28
U.S.C. sec. 2255), an inmate must first
present this ground to the district court
in a timely filed petition. See, e.g.,
Gray-Bey v. United States, 156 F.3d 733,
743 (7th Cir. 1998). Although Supreme
Court case law issued during the pendency
of an appeal may provide inmates and
their counsel with a powerful new ground
for relief that they may wish they had
presented to the district court, an
appellate court is not the proper venue
to consider such a ground for the first
time. See id. If the original petition
did not contain this ground for relief,
then that ground has been waived on
appeal, see id., and a prisoner’s habeas
options are thereafter limited by the
special rules that apply to second or
successive collateral attacks. See 28
U.S.C. sec. 2255, para. 8; see also
Talbott v. Indiana, 226 F.3d 866 (7th
Cir. 2000) (holding that in a second or
successive habeas petition, relief is
only possible if the Supreme Court
declares that a new rule of
constitutional law applies
retroactively).

  In the present case, the government
argues that Fischer’s appeal must be
rejected because he did not challenge the
lack of jury unanimity before the
district court and therefore is barred
from making such a challenge on appeal.
We faced a similar scenario in Gray-Bey,
156 F.3d 733. In Gray-Bey, 156 F.3d at
735, the defendant had been convicted of
using a firearm during drug trafficking
in violation of 18 U.S.C. sec. 924(c).
The defendant filed a petition for habeas
relief under sec. 2255, which the
district court denied. See 156 F.3d at
736-37. Subsequent to that denial, the
Supreme Court handed down Bailey v.
United States, 516 U.S. 137, 116 S. Ct.
501, 133 L. Ed. 2d 472 (1995), which,
according to the defendant, required
reversal of his 924(c) conviction. See
156 F.3d at 742. On appeal, the defendant
attempted to raise a Bailey claim even
though he had not raised it before the
district court. We initially noted that
it was "axiomatic that an issue not first
presented to the district court may not
be raised before the appellate court as a
ground for reversal." Id. at 742-43. We
then held that the defendant could not
raise a Bailey claim on appeal because he
had failed to raise it before the
district court. See id. at 743. Here, as
in Gray-Bey, Fischer failed to challenge
the lack of jury unanimity in his habeas
petition before the district court,/2
and therefore he cannot raise the claim
before this court. See id.; see also
Valenzuela v. United States, 261 F.3d
694, 700 (7th Cir. 2001) ("By failing to
raise [the] issue in his sec. 2255
petition before the district court, [the
defendant] has waived it.").

  Fischer attempts to circumvent this bar
by pointing to our statement in our Rule
35 decision that a Richardson claim
"should be litigated under 28 U.S.C. sec.
2255," not under Rule 35. 205 F.3d at
972. Fischer contends that this statement
permits him to now raise his Richardson
claim even though he did not raise this
claim before the district court. Fischer,
however, is mistaken as our opinion
rejecting Fischer’s Rule 35 appeal only
informed Fischer of the proper method to
raise his Richardson claim. Similarly,
our motion granting Fischer a certificate
of appealability only allowed Fischer to
obtain this court’s review. See Ramunno
v. United States, 264 F.3d 723, 724-25
(7th Cir. 2001). Neither the Rule 35
opinion, nor the certificate of
appealability relieved Fischer of
complying with the procedural
requirements necessary to pursue his
Richardson claim, and his failure to
challenge the lack of jury unanimity
before the district court is fatal to his
claim on appeal. See Gray-Bey, 156 F.3d
at 743.

III.   Conclusion

  For the foregoing reasons, we AFFIRM the
district court’s denial of Fischer’s
habeas petition.

FOOTNOTES

/1 Fischer also supplemented his habeas petition and
added additional claims not relevant to this
appeal.

/2 Fischer conceded his failure to raise this issue
in his motion to amend his petition for a certif-
icate of appealability, and the record is clear
that he did not raise this issue before the
district court in any of his habeas pleadings.
Cf. Lanier, 220 F.3d at 838 (finding that supple-
mental brief submitted before the district court
had decided original motion preserved issue for
appeal).
