In the
United States Court of Appeals
For the Seventh Circuit

No. 01-2591

David S. Dahler,

Applicant,

v.

United States of America,

Respondent.

On Application for an Order Authorizing
a Second or Successive Petition for Collateral Review.

Submitted June 22, 2001--Decided July 17, 2001


  Before Cudahy, Posner, and Easterbrook,
Circuit Judges.

  Easterbrook, Circuit Judge. David Dahler
was convicted in 1995 of possessing
firearms despite his status as a felon.
This violated 18 U.S.C. sec. 922(g), which
normally carries a maximum penalty of ten
years’ imprisonment. 18 U.S.C.
sec. 924(a)(3). Because Dahler had at
least three independent convictions for
crimes of violence, however,
sec. 924(e)(1) branded him an armed career
criminal and raised the maximum sentence
to life imprisonment, with a mandatory
minimum of 15 years. See United States v.
Jackson, 835 F.2d 1195, 1197 (7th Cir.
1987). The district judge sentenced
Dahler to 276 months’ (23 years’)
imprisonment. We affirmed in an
unpublished order. United States v.
Dahler, No. 95-3007 (7th Cir. May 31,
1996). Dahler then filed a collateral
attack under 28 U.S.C. sec. 2255,
contending among other things that a
restoration of civil rights under state
law removed one of his prior convictions
from the list of those that had justified
the recidivist enhancement. We agreed
with this conclusion, vacated Dahler’s
sentence, and remanded so that the
district court could determine whether
Dahler’s other convictions expose him to
an enhanced penalty. Dahler v. United
States, 143 F.3d 1084 (7th Cir. 1998). On
remand the district court concluded that
at least three prior convictions for
crimes of violence remain, and it
reimposed the 276-month sentence. We
affirmed, United States v. Dahler, 171
F.3d 441 (7th Cir. 1999), bringing to an
end Dahler’s first collateral attack.

  Now he wants to commence a second. By
application under sec. 2255 para. 8, Dahler
asks us to authorize a new collateral
attack on his sentence. See also 28
U.S.C. sec. 2244(b). Dahler’s theory this
time is that the due process clause of
the fifth amendment, as understood in
Apprendi v. New Jersey, 530 U.S. 466
(2000), requires a jury to determine
beyond a reasonable doubt whether he has
the record of convictions that renders
him eligible for the armed career
criminal enhancement. Before considering
whether this meets the statutory
standards for successive collateral
litigation, we must decide whether we are
the court authorized to apply those
standards.

  Prior appellate approval is required
only for a "second or successive motion"
under sec. 2255. Counting motions can be
difficult. See Johnson v. United States,
196 F.3d 802 (7th Cir. 1999). Dahler has
had one collateral attack--a countable
challenge, as it was decided on the
merits, see Burris v. Parke, 95 F.3d 465
(7th Cir. 1996) (en banc)--but is
entitled to another to the extent he
attacks a different conviction or
sentence. One substantive chance per
judgment is the norm under sec. 2255
para. 8 and sec. 2244(b). See Walker v.
Roth, 133 F.3d 454 (7th Cir. 1997); In re
Page, 170 F.3d 659 (7th Cir.), on
rehearing, 179 F.3d 1024 (1999). Dahler
has only one conviction for violating
sec. 922(g), but he has been sentenced
twice: once in 1995, and again in 1998
following our remand. Dahler received the
same term of imprisonment, but it is
clear in principle--and required by our
holding in Walker--that he has one chance
to wage a collateral attack (without
needing appellate approval) challenging
any constitutional errors made in that
resentencing proceeding.

  Yet Dahler does not want to present a
constitutional objection to an error
newly made in 1998. He seeks relief from
sentencing as an armed career criminal,
and the contention he now advances--that
his eligibility for recidivist sentencing
should have been determined by a jury at
his trial--is not something that was
introduced by his resentencing in 1998.
The choice between judge and jury (and
between the preponderance and reasonable-
doubt standards) was one made in 1995,
and nothing changed between the
sentencing in 1995 and the resentencing
in 1998. The argument Dahler now seeks to
present is one he could have raised at
trial, on appeal from the 1995 sentence,
in the district court on remand, and on
the 1999 appeal from the decision on
remand. Neither the language of sec. 2255
para. 8 nor the holding of Walker requires
us to treat Dahler’s proposed challenge
as an initial collateral attack. Walker
dealt only with a challenge to matters
that occurred at resentencing; it did not
address any claims that could have been
raised before the resentencing.

  United States v. Smith, 241 F.3d 546
(7th Cir. 2001), establishes that
contentions arising from the trial and
initial sentence must be raised as soon
as possible. Smith was sentenced in 1992
and resentenced in 1997 following an
amendment to the Sentencing Guidelines.
He argued on appeal that the sentence
should be cut still further in light of
Apprendi because the jury had not
determined the kind and weight of drugs
he distributed. We looked straight
through the resentencing in 1997--a
proceeding that could not alter the
allocation of responsibility between
judge and jury at trial--to treat what
was nominally an appeal from the 1997
sentence as a collateral attack on the
1992 conviction and sentence. After
concluding that the issue had not been
properly raised in 1992, we applied the
cause-and-prejudice standard to what we
deemed a collateral attack. Smith thus
establishes that a belated challenge to
events that precede a resentencing must
be treated as a collateral attack on the
original conviction and sentence, rather
than as an initial challenge to the
latest sentence. By that standard this is
Dahler’s second collateral attack, for he
could have raised, long before 1998, the
contention he now seeks to present.

  This distinction between challenges to
events that are novel to the resentencing
(and will be treated as initial
collateral attacks) and events that
predated the resentencing (and will be
treated as successive collateral attacks)
has been adopted by every other circuit
that has considered the subject. See,
e.g., United States v. Barrett, 178 F.3d
34, 44-45 (1st Cir. 1999); Pratt v.
United States, 129 F.3d 54, 61-62 (1st
Cir. 1997); Esposito v. United States,
135 F.3d 111, 112-14 (2d Cir. 1997); In
re Taylor, 171 F.3d 185, 187-88 (4th Cir.
1999); Barapind v. Reno, 225 F.3d 1100,
1112 (9th Cir. 2000). These courts differ
a little in phraseology. For example,
Barrett said that a petition is not
successive when it "challenges parts of
the judgment that arose as the result of
the success of an earlier petition",
while Barapind stated that a collateral
attack is not successive "to the extent
that the petitioner challenges the
amended portion of a judgment or
sentence." But these come to the same
thing, and we could not find any decision
doubting that a collateral attack
presenting an issue that predated and was
unaffected by resentencing is a challenge
to the original conviction and sentence.
Dahler had a full collateral challenge to
his conviction; his current argument that
additional issues should have been tried
to the jury back in 1995 therefore may be
presented to the district court only with
our assent.

  Dahler’s application does not meet the
statutory standard for a second or
successive collateral attack: "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. sec. 2255
para. 8(2). Almendarez-Torres v. United
States, 523 U.S. 224 (1998), holds that
maximum sentences may be enhanced on
account of prior convictions without
submitting to the jury any questions
about the number or significance of those
convictions. Apprendi did not overrule
Almendarez-Torres; to the contrary, the
Court expressed its holding this way:
"other than the fact of a prior
conviction, any fact that increases the
penalty for a crime beyond the prescribed
statutory maximum must be submitted to a
jury, and proved beyond a reasonable
doubt." 530 U.S. at 490 (emphasis added).
We held accordingly in United States v.
Skidmore, No. 00-2691 (7th Cir. June 19,
2001), slip op. 9-12, that an increase in
the maximum penalty under sec. 924(e)(1)
is compatible with Apprendi. No "new
rule" established since his last
collateral attack assists Dahler, so we
deny his application for permission to
wage another.

  One observation before we conclude.
Dahler did not comply with Circuit Rule
22.2, which specifies the contents of an
application under sec. 2255 para. 8 or
sec. 2244(b). Instead of providing the
information (including the attachments)
required by Rule 22.2, Dahler filled out
a form he received from his prison. This
form states, among other things, that
"[a]ll applicants seeking leave to file a
second or successive petition are
required to use this form, except in
capital cases." Apparently federal
prisons across the country are
distributing this form to inmates. Yet
the Bureau of Prisons lacks authority to
limit how prisoners present their claims,
for the Executive Branch cannot prescribe
rules of practice and procedure in the
federal courts. We gather that the form
is the work of the eleventh circuit.
Prison officials apparently use white-out
formula to delete the name of that court
and photocopy the redacted form, whose
printed caption then reads "United States
Court of Appeals" (with blank space
underneath to type the name of a
circuit). By obliterating the name of the
originating court and then handing out
forms that profess to be compulsory,
prisons are effectively directing all
inmates, from every circuit, to use one
form.

  Prison administrators distributing this
form to inmates who must file in circuits
other than the eleventh are doing them,
and the judges, a disservice. The amended
document falsely tells prisoners from the
seventh circuit that they must use the
eleventh circuit’s form--even though this
leaves the prisoners out of compliance
with Circuit Rule 22.2 and may lead to
delay or denial of their applications.
Instead of using a one-form-fits-all
approach, prison librarians and other
officials should help their wards find
and comply with the appropriate local
rules. We have furnished copies of
Circuit Rule 22.2 to every prison in the
circuit, and we are disappointed that,
despite a request last year (by letter
from the Clerk of this Court to the
Warden), the federal prison at Oxford,
Wisconsin, is continuing to distribute
the eleventh circuit’s form, with its
demand that prisoners use that form
exclusively. We hope that wardens of
federal prisons will find a way to avoid
giving prisoners bad legal advice,
without requiring this court to take
additional steps to ensure that prisoners
can enjoy their right of access to the
judicial system. Cf. Hall v. Stone, 170
F.3d 706 (7th Cir. 1999).
