                           In the
 United States Court of Appeals
              For the Seventh Circuit
                        ____________

No. 02-3875
CHARLES B. THOMAS,
                                         Petitioner-Appellant,
                              v.

UNITED STATES OF AMERICA,
                                         Respondent-Appellee.
                        ____________
          Appeal from the United States District Court
                for the Southern District of Illinois.
         No. 00-4304 (98-40044)—J. Phil Gilbert, Judge.
                        ____________
                 On Petition for Rehearing
                  and Rehearing En Banc
                       ____________
                  DECIDED—APRIL 16, 2003
                       ____________


 Before EASTERBROOK, EVANS, and WILLIAMS, Circuit
Judges.
  EASTERBROOK, Circuit Judge. Charles Thomas is serv-
ing a term of 300 months’ imprisonment for possessing
crack cocaine with intent to distribute. We affirmed his
conviction on direct appeal. United States v. Thomas,
No. 99-2455 (7th Cir. Feb. 7, 2000) (unpublished order).
After the Supreme Court denied his petition for certiorari,
531 U.S. 969 (2000), Thomas commenced a collateral attack
under 28 U.S.C. §2255. The district court denied his peti-
2                                                No. 02-3875

tion and declined to issue a certificate of appealability.
See 28 U.S.C. §2253(c). Under this court’s Operating Pro-
cedure 1(a)(1), his appeal was submitted to two judges, who
considered independently whether Thomas’s contentions
meet the standard for a certificate. Both judges gave a
negative answer. Once two judges have concluded that
appeal does not present any substantial issue, the appel-
lant has no prospect of success on the merits (for two is
a majority of a three-judge panel), and the application is
not referred to a third circuit judge. Thus the court issued
an order denying Thomas’s request for such a certificate,
a step that brought his appeal to a close. Thomas v. United
States, No. 02-3875 (7th Cir. Feb. 7, 2003) (unpublished
order).
  Thomas then filed what he styles a “Petition for Rehear-
ing and/or Rehearing (En Banc)”. It poses a number of
questions about how we should handle prisoners’ filings
after the court has declined to issue a certificate of
appealability. None of the Federal Rules of Appellate
Procedure, the Rules of the Seventh Circuit, or the circuit’s
Operating Procedures addresses these issues. The court
therefore submitted Thomas’s request to the three-judge
motions panel that was serving at the time two of the three
had acted on his request for a certificate.
  1. The first question is whether a prisoner can obtain
reconsideration of a decision not to issue a certificate of ap-
pealability. No statute or rule forbids such a step; §2253
does not have language parallel to 28 U.S.C. §2244(b)(3)(e),
which says that an order denying permission to commence
a second or successive collateral attack may not be re-
viewed by rehearing or certiorari. Still, if reconsideration
would amount to the commencement of a second collateral
attack, then the prisoner must satisfy the criteria for that
measure (see §2244(b)(3), §2255 ¶8) rather than the lower
threshold of §2253(c). Some post-decision motions in a col-
lateral attack must be treated as equivalent to efforts to
No. 02-3875                                                  3

launch additional collateral proceedings; one example, from
Calderon v. Thompson, 523 U.S. 538, 553-54 (1998), is an
application to recall the appellate mandate. Similarly, a
motion filed in the district court under Fed. R. Civ. P. 60(b),
after the time for appeal has expired, usually must be
treated as a new collateral attack. See, e.g., Dunlap v.
Litscher, 301 F.3d 873 (7th Cir. 2002); Burris v. Parke, 130
F.3d 782 (7th Cir. 1997). But a motion in the district court
before time to appeal has run does not come within this
rule, see Johnson v. United States, 196 F.3d 802 (7th Cir.
1999), and likewise with a motion in the court of appeals
while time remains under Fed. R. App. P. 40(a)(1). A timely
request for reconsideration is a motion in the original case,
not a disguised effort to start a new case. Thomas filed his
petition within the time allowed by Rule 40(a)(1), so it is
properly before us.
   2. There is some doubt whether such a document should
be called a “petition for rehearing” or instead a “motion for
reconsideration”—though the caption is semantic rather
than substantive. For most purposes it makes sense to lim-
it the phrase “petition for rehearing” to a request for re-
view of a panel’s decision on the merits. Someone dis-
pleased with another kind of decision—for example, an
order by a motions judge denying a request to file a brief
longer than the cap in Fed. R. App. P. 32—files a motion for
reconsideration. A decision by two judges, considering
the papers seriatim, that the prisoner has not demon-
strated the existence of a substantial constitutional ques-
tion, falls somewhere in between. It is not a decision “on
the merits”: Miller-El v. Cockrell, 123 S. Ct. 1029 (2003),
holds that the merits differ from the criteria for a certi-
ficate of appealability. Many prisoners who seem likely
to lose in the court of appeals nonetheless are entitled to
certificates of appealability under the statutory standard;
meritorious appeals are a subset of those in which a
certificate should issue. Yet the denial of a certificate
4                                                No. 02-3875

concludes the appeal; it has the same effect as an adverse
decision on the merits. A request for reconsideration there-
fore should be treated the same as a petition for rehear-
ing, no matter what caption it bears—first because de-
nial ends the appeal, and second because a belief that the
appellant is entitled to prevail on the merits means that
a certificate of appealability should have issued.
  3. This implies that a two-judge decision declining to
issue a certificate of appealability is eligible for rehearing
en banc, even though neither Fed. R. App. P. 35 nor Circuit
Rule 35 contemplates en banc review of an ordinary motion.
A request for a certificate is enough to put the case “in” the
court of appeals. See Hohn v. United States, 524 U.S. 236
(1998). Denial thus may be reviewed by the Supreme Court
on writ of certiorari, as in Hohn, Miller-El, and Slack v.
McDaniel, 529 U.S. 473 (2000). Any order that terminates
the appeal, and may be reviewed by the Supreme Court,
also should be eligible for review by the full court of ap-
peals. Occasionally the denial of a request for a certificate
of appealability will present the sort of legal question that
justifies rehearing en banc; that option should be avail-
able, even though the search for a needle in the haystack
of pro se motions has a potential to tax this court’s re-
sources (as the forma pauperis docket taxes the Supreme
Court’s). Consequently, a document (whether styled “peti-
tion for rehearing” or “motion for reconsideration”) that
seeks review by the court en banc will be distributed to all
active judges. This has been done with Thomas’s petition.
   4. There remains the question how judges who were
not on the motions panel should deal with the petition.
Does it invite each active judge (11 on this court; up to 28
elsewhere) to decide independently whether a substantial
constitutional issue has been presented and issue a cer-
tificate unilaterally? We think not. This court resolved
when it adopted Operating Procedure 1(a)(1) that only
two circuit judges would conduct the review required by
No. 02-3875                                                5

§2253(c). A request for rehearing en banc poses, not the
question whether any particular active judge would deem
a constitutional issue substantial, but whether an impor-
tant and controlling issue of law requires resolution by
the full court—either to maintain uniformity within the
court or to resolve a question of exceptional importance.
That is the standard set by Fed. R. App. P. 35(a). An appeal
does not come before any of the judges (other than the
two who acted under Operating Procedure 1(a)(1)) for
decision unless en banc review first is granted; otherwise
the panel’s resolution stands. Moreover, even when rehear-
ing en banc is granted, this does not empower any particu-
lar judge to issue a certificate unilaterally; once the case
has been set for hearing en banc, the majority prevails.
That is why none of the Justices in Hohn, Slack, or Miller-
El unilaterally issued a certificate of appealability (a
step that would have made further consideration unneces-
sary in each of these cases).
  To sum up: an order declining to issue a certificate
of appealability is subject to rehearing by the panel (on
timely motion) and review by the court en banc—but, unless
rehearing en banc is granted, a certificate of appealabil-
ity will issue only if one of the judges to whom the applica-
tion was referred under Operating Procedure 1(a)(1) con-
cludes, on reconsideration, that the statutory criteria for
a certificate have been met.
  Because this opinion clarifies the operating procedure
of the court, it was circulated to all active judges under
Circuit Rule 40(e). No judge favored rehearing en banc.
  This motions panel unanimously concludes that the
standards of §2253(c) have not been met and that a certifi-
cate of appealability should not be issued. Thomas’s
principal argument is that the indictment was fatally
defective because it did not specify the quantity of crack
cocaine that he possessed with intent to distribute. This
6                                               No. 02-3875

argument is not substantial, given cases such as United
States v. Cotton, 535 U.S. 625 (2002), and United States v.
Bjorkman, 270 F.3d 482, 490-92 (7th Cir. 2001). Bjorkman
holds that Apprendi v. New Jersey, 530 U.S. 466 (2000),
does not make drug quantity an “element” of the offense
under 21 U.S.C. §841, and Cotton holds that failure to
allege and prove a particular quantity does not deprive
the district court of jurisdiction or otherwise auto-
matically render the judgment invalid. Thomas’s 300-month
sentence is lawful if a properly instructed jury would
have found, beyond a reasonable doubt, that Thomas
possessed with intent to distribute at least 5 grams of crack
cocaine. See 21 U.S.C. §841(b)(1)(B)(iii) (40-year maxi-
mum on conviction of crime involving 5 or more grams of
crack). Thomas concedes that 7 grams were seized from his
home, and he does not seriously deny that he planned to
distribute this much. The findings of additional relevant
conduct, which raised the Guideline range, are not sub-
ject to Apprendi’s holding; relevant conduct is ascertained
by a judge on the preponderance standard, provided
that the statutory maximum is respected. See Edwards
v. United States, 523 U.S. 511 (1998). Thomas’s other
arguments are insubstantial, individually and collec-
tively, for the reasons given by the district judge. The pe-
tition for rehearing therefore is denied.

A true Copy:
      Teste:

                        ________________________________
                        Clerk of the United States Court of
                          Appeals for the Seventh Circuit




                   USCA-02-C-0072—4-16-03
