                              In the

United States Court of Appeals
               For the Seventh Circuit

Nos. 10-2154 & 11-1498

D AVID P HILLIPS,
                                                Petitioner-Appellant,
                                  v.

U NITED S TATES OF A MERICA,
                                                Respondent-Appellee.


            Appeals from the United States District Court
        for the Northern District of Illinois, Eastern Division.
           No. 07 C 3014—Joan Humphrey Lefkow, Judge.



   A RGUED S EPTEMBER 16, 2011—D ECIDED JANUARY 3, 2012




   Before E ASTERBROOK, Chief Judge, and W OOD and
T INDER, Circuit Judges.
  E ASTERBROOK, Chief Judge. David Phillips pleaded
guilty to transporting a minor in interstate commerce
for the purpose of prostitution. See 18 U.S.C. §2423(a).
He was sentenced to 210 months’ imprisonment. An
appeal was dismissed on the basis of a waiver in the
plea agreement. (Phillips received a substantial benefit
in exchange, for the prosecutor dismissed nine of the
2                                  Nos. 10-2154 & 11-1498

indictment’s ten counts.) The plea agreement’s waiver
of appeal and collateral review contains an exception for
ineffective assistance of counsel, and Phillips filed a
collateral attack within the year that 28 U.S.C. §2255(f)
allows for that purpose. He makes a single argument:
that his attorney had a conflict of interest, because he
formerly represented one of Phillips’s prostitutes in a
different case, and furnished ineffective assistance of
counsel because he did not obtain a formal waiver of
the conflict.
  Shannon Lynch, who represented Phillips during
2005 and 2006 in the federal prosecution, had represented
Melissa Musial in 2003 when she was charged with solic-
itation in violation of municipal law. Phillips submits
that Musial was an employee of his “escort service”
and could have been a witness against him had the
federal prosecution gone to trial, while Lynch could not
have cross-examined her effectively given their former
attorney-client status. Phillips maintains that Lynch
induced him to plead guilty, and accept what Phillips
now calls a bad bargain, in order to avoid the embar-
rassment (and potential financial loss) of having to with-
draw in mid-trial. Although the district court appointed
a lawyer to represent Phillips in this collateral attack,
and that lawyer had more than 18 months to collect
evidence, counsel did not offer any evidence to show
that the asserted conflict injured Phillips. The district
court denied his petition after concluding that the
record did not supply any reason to think that Lynch’s
work for Musial in 2003 would have diminished his
ability to represent Phillips effectively. Because Lynch
Nos. 10-2154 & 11-1498                                     3

would not have had to withdraw, he also had no reason
to talk Phillips into taking an inferior bargain.
  Phillips filed a notice of appeal. We appointed a dif-
ferent lawyer to represent him. New counsel rethought
the strategy and filed in the district court a motion for
relief under Fed. R. Civ. P. 60(b)(6). This motion was
accompanied by some details about what Lynch did
for Musial in 2003, and Phillips’s new lawyer con-
tended that these details established the sort of prej-
udice that was missing on the thin record tendered
earlier. The district judge denied this motion, stating
that although the new evidence strengthened Phillips’s
position it still did not establish either an actual conflict
or any prejudice. Phillips filed a second appeal from
the decision denying this motion.
  The parties briefed both appeals on the assumption
that the enlarged record was properly before the district
court. At oral argument we questioned that assump-
tion and asked whether the Rule 60(b) motion should
be treated as a successive collateral attack, barred by
28 U.S.C. §2244(b) unless the criteria for successive litiga-
tion have been satisfied. We called for post-argument
memoranda. Phillips does not contend that §2255(h)
authorizes a second or successive application. That
leaves the question whether the Rule 60(b) motion
should be treated as a fresh application for collateral
review. The United States contends that it should be;
Phillips argues otherwise.
  If this Rule 60(b) motion had been filed after the first
appeal was over, or after the time for appeal had expired
4                                   Nos. 10-2154 & 11-1498

without a notice being filed, the situation would be
straightforward. Gonzalez v. Crosby, 545 U.S. 524, 533–35
(2005), holds that a Rule 60(b) motion in a collateral
proceeding under §2254 or §2255 that attacks a district
court’s decision “on the merits” must be treated as a
new “application” for collateral review, and thus
as barred by §2244(b) unless the statutory criteria for
sequential collateral litigation are met. Phillips’s motion
is directly addressed to the merits of his desire for collat-
eral relief. He contends in passing that statements the
United States Attorney’s Office made to the district court
undermined the integrity of the proceedings and thus
made his motion one not “on the merits,” but that con-
tention is unavailing. The United States did not mislead
the district judge. The Rule 60(b) motion dealt with the
merits of the adverse decision, not with the district
court’s ability to make an impartial and accurate deci-
sion. One litigant’s dissatisfaction with the other’s argu-
ments does not provide an escape hatch from §2244(b)
or §2255(h). Under Gonzalez, the motion was an “ap-
plication” for collateral relief.
  But was it a second application? The first was still
pending on appeal. Perhaps, until a district court’s deci-
sion has become final by the conclusion of any appeal
taken, every new application should be treated as an
amendment to the pending one, rather than as a new
one. If so, then Phillips could have filed an entirely in-
dependent §2255 petition raising a distinct claim for
relief; indeed, he could still file one or more, as many as
he likes, because this appeal is not over. (Phillips can
seek rehearing or certiorari.)
Nos. 10-2154 & 11-1498                                     5

  Treating motions filed during appeal as part of the
original application, however, would drain most force
from the time-and-number limits in §2244 and §2255. Once
one timely petition under §2255 is on file, the prisoner
may keep filing more until the first has been finally
resolved, a process that can take years. This collateral
attack, for example, was filed in 2007 and won’t be
over until mid-2012 at the earliest, if Phillips asks the
Supreme Court to review our decision. Nothing in the
language of §2244 or §2255 suggests that the time-and-
number limits are irrelevant as long as a prisoner keeps
his initial request alive through motions, appeals, and
petitions.
  Suppose Phillips had filed, not a separate “application”
(which is how Gonzalez categorizes his post-judgment
motion), but a motion to amend his initial petition. We
held in Johnson v. United States, 196 F.3d 802 (7th Cir.
1999), that a proposal to amend a collateral attack
already on file is not a new collateral attack. But we
added that the time to amend the petition expires once
the district court makes its decision. Id. at 805. Final
judgment marks a terminal point. See also Calderon v.
Thompson, 523 U.S. 538, 554 (1998) (a motion to recall
the appellate mandate in a proceeding seeking collateral
relief should be treated as a new application). A motion
to amend that is filed within the time to appeal might
be treated as a continuation of the original application;
a district court retains jurisdiction to fix problems
during this post-judgment period. See United States v.
Ibarra, 502 U.S. 1 (1991); United States v. Rollins, 607 F.3d
500 (7th Cir. 2010). But Phillips filed his Rule 60(b)
6                                   Nos. 10-2154 & 11-1498

motion not only after an appeal had been filed, but also
about six months after the time for appeal had run out;
the motion cannot be treated as suspending the judg-
ment’s finality, see Fed. R. App. P. 4(a)(4), and allowing
the district judge to make changes.
  Phillips has not cited, and we have not found, any
decision in another circuit holding that a Rule 60(b)
motion filed while an appeal is pending, and “on the
merits” of the request for collateral relief, should be
treated the same way as a proposal to amend the petition
before the district court enters its judgment. Phillips
does rely on one of our decisions, Boyko v. Anderson, 185
F.3d 672 (7th Cir. 1999), which holds that under Circuit
Rule 57 a district judge may ask us to remand a pending
appeal so that the district judge may correct errors that
affect the proceedings. If such a request had been made
and granted, then the judgment would no longer have
been final, and the rationale of Johnson would have al-
lowed the amendment of a collateral attack (if the dis-
trict judge exercised discretion to accept an amendment).
But the district judge did not invoke Circuit Rule 57
and did not think that the Rule 60(b) motion established
any error in her original decision. Nor did Phillips ask
the district judge to use this procedure.
  We must resolve this case based on what actually
happened—a failed Rule 60(b) motion while the
appeal was pending—rather than what might have hap-
pened, such as tender of additional evidence before
final decision in the district court, or a timely post-judg-
ment motion under Fed. R. Civ. P. 50 or 59. What
Nos. 10-2154 & 11-1498                                    7

actually happened was a new application for collateral
relief, which the district court lacked jurisdiction to
entertain in the absence of permission from this court,
which was not sought—and could not have been
granted if sought, because the requirements of §2255(h)
have not been met.
  This leaves the original appeal (No. 10-2154) on the
original record. And on that record Phillips cannot
prevail. We may assume that Lynch’s representation of
Musial created a conflict, see Cuyler v. Sullivan, 446 U.S.
335 (1980), but this is not the sort of conflict that
makes legal representation automatically “ineffective.”
Prejudice must be shown—and in Hall v. United States,
371 F.3d 969 (7th Cir. 2004), on which Phillips
principally relies, it was. Here it wasn’t.
  It does not matter which side bears the burden of per-
suasion on that subject. The record compiled before the
district court entered its judgment supplies not the
smallest reason to believe that a conflict adversely
affected Lynch’s work for Phillips. To show prejudice,
Phillips would have to establish that, but for the
conflict, he would not have pleaded guilty. See, e.g., Hall,
371 F.3d at 974. Yet the record does not suggest that Lynch
unduly pressured Phillips to plead guilty—or would have
had any reason to do so. No evidence implies that Lynch
learned from Musial any privileged information that
would have limited the scope of cross-examination.
What’s more, the United States represents that Musial
would not have been called as a witness had a trial been
held. (The indictment does not mention her as either a
8                                  Nos. 10-2154 & 11-1498

participant or a victim, and she had refused to be inter-
viewed by any agent of the federal government; the
prosecutor was unlikely to call a person whose testi-
mony might well have favored the defense.) And we
know that Musial was not called as a witness and did
not submit evidence any other way in the sentencing
proceeding actually held. Prejudice is unlikely, so
Phillips is not entitled to relief.
  Phillips’s appellate counsel contends that the district
judge should have held an evidentiary hearing. But
the lawyer who represented Phillips in the district court
did not ask for one or provide any reason to think that
a hearing would have been productive. The district
judge did not abuse her discretion by acting on the
basis of the record as it stood.
  In appeal No. 10-2154 the judgment is affirmed. In
appeal No. 11-1498 the district court’s decision is
vacated, and the case is remanded with instructions
to dismiss for want of subject-matter jurisdiction.




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