In the
United States Court of Appeals
For the Seventh Circuit

No. 01-1335

Wayne A. Brannigan,

Applicant,

v.

United States of America,

Respondent.



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


Submitted February 12, 2001--Decided March 14, 2001
Opinion Issued April 20, 2001



  Before Cudahy, Posner, and Easterbrook, Circuit
Judges.

  Easterbrook, Circuit Judge. Ever since his
conviction of drug offenses in 1997, Wayne
Brannigan has been carrying on a rear-guard
action. We affirmed his conviction and sentence
(along with those of his co-conspirators) in an
unpublished order. United States v. Jones, No.
97-2262 (7th Cir. May 7, 1998). Brannigan filed
a collateral attack under 28 U.S.C. sec.2255.
After the district court denied his petition, we
declined to issue a certificate of appealability.
Brannigan v. United States, No. 00-1628 (7th Cir.
July 21, 2000). The ink was hardly dry on that
order before Brannigan asked this court for
permission to file a second collateral attack.
See 28 U.S.C. sec.2255 para.8. We denied that
application. Branigan [sic] v. United States, No.
00-3075 (7th Cir. Sept. 1, 2000). Now Brannigan
has filed a successive application for permission
to commence collateral litigation. That
application, too, was denied with prejudice last
month, thus complying with the deadline in 28
U.S.C. sec.2244(b)(3)(D), in a short order noting
that we would later issue an opinion with a more
complete explanation. (Section 2255 para.8
incorporates sec.2244(b).) This opinion fulfils
that promise.

  Brannigan is among the many prisoners who
believes that Apprendi v. New Jersey, 530 U.S.
466, 120 S. Ct. 2348 (2000), requires every
sentence for a drug offense to be reduced. We
warned in Talbott v. Indiana, 226 F.3d 866, 869
(7th Cir. 2000), that hasty action on this belief
may be costly, because an unfounded petition
invoking Apprendi may squander the prisoner’s
opportunity to file one collateral attack as of
right (subjecting future challenges to the
gatekeeping provisions of sec.2244(b) and
sec.2255 para.8), or may lead to problems under
sec.2244(b)(1): "A claim presented in a second or
successive habeas corpus application . . . that
was presented in a prior application shall be
dismissed." A bad Apprendi argument in one
application thus may scuttle a better Apprendi
argument later. That is exactly what has happened
to Brannigan. His earlier application for
permission to file a second collateral attack
contended that Apprendi foreclosed the district
court’s decision to add two levels to his offense
seriousness under the Sentencing Guidelines for
possessing a weapon in the course of his drug
dealing. (The extra levels led to his sentence of
life imprisonment rather than, say, 360 months.)
Brannigan contended that this increase was
improper because he had not been convicted of a
firearms offense. Sometimes we protect prisoners
from the consequences of ill-considered Apprendi
contentions by dismissing their applications
without prejudice, for the Supreme Court has not
declared Apprendi to be retroactively applicable
on collateral attack. See Hernandez v. United
States, 226 F.3d 839 (7th Cir. 2000). But when an
argument invoking Apprendi would fail even if
that case turns out to be fully retroactive, we
deny it on the merits in order to forestall a
further round of litigation if the Supreme Court
later should decide in favor of retroactivity.
That was the fate of Brannigan’s initial
application. Apprendi does not require facts
pertinent to application of the Sentencing
Guidelines to be determined under an elevated
burden of persuasion; it holds only that
circumstances affecting the statutory maximum
punishment must be established beyond a
reasonable doubt to the satisfaction of the trier
of fact. See Apprendi, 120 S. Ct. at 2362-63;
United States v. Patterson, No. 97-3159 (7th Cir.
Mar. 2, 2001); Talbott, 226 F.3d at 869. See also
Edwards v. United States, 523 U.S. 511 (1998).

  Brannigan’s current argument--that the jury
rather than the district judge should have
determined how much cocaine the conspirators
distributed--is closer to the holding of
Apprendi. He errs in thinking that Apprendi
requires the full weight of drugs, which the
district judge determined to be more than 1.5
kilograms of crack, to be ascertained beyond a
reasonable doubt by the jury. Distributing even
50 grams of crack exposes a person to life
imprisonment. 21 U.S.C. sec.841(b)(1)(A)(iii).
Once the trier of fact concludes beyond a
reasonable doubt that the defendant distributed
50 grams of crack, the district judge decides by
a preponderance of the evidence the full extent
of relevant conduct for purposes of sentencing.
Still, Brannigan has the makings of an Apprendi
claim because the jury was not asked to resolve
the 50-gram question. Brannigan’s claim is weak,
not only because the district judge found that
the conspiracy entailed at least 1.5 kilograms of
crack (making it unlikely that a jury would have
balked at finding a mere 50 grams), but also
because, even if Apprendi turns out to be
retroactive, to prevail on any claim first raised
on collateral attack the petitioner must
establish "cause" and "prejudice," which is more
difficult than establishing "plain error." See
United States v. Frady, 456 U.S. 152, 162-66
(1982); United States v. Smith, No. 99-4253 (7th
Cir. Feb. 8, 2001). Yet Brannigan has at least
the kernel of an Apprendi argument, one whose
resolution we would defer under Hernandez but for
the operation of sec.2244(b)(1).

  Section 2244(b)(1) says that a "claim" presented
in a prior application is forever closed. What is
a "claim" as sec.2244(b)(1) uses that word? The
answer is elusive. Defining the "claim" for
purposes of preclusion in civil litigation has
been a complex process, and it is tempting to
borrow the answer--that a single set of facts
producing a single injury is one "claim" no
matter how many legal theories can be invoked in
support of relief. E.g., Herrmann v. Cencom Cable
Associates, Inc., 999 F.2d 223 (7th Cir. 1993).
But this can’t be the right way to understand
"claim" in sec.2244(b)(1), for then one crime
would produce one "claim" no matter how many
things had gone wrong. This would imply that
every successive collateral attack on a single
conviction and sentence must be dismissed. Yet
sec.2244(b) and sec.2255 para.8 suppose that
multiple collateral attacks are possible. Thus it
is essential to define the "claim" as a challenge
to a particular step in the case, such as the
introduction of a given piece of evidence, the
text of a given jury instruction, or the
performance of counsel. That’s essentially how
Bennett v. United States, 119 F.3d 470, 471-72
(7th Cir. 1997), understands it. If, for example,
the defendant invokes the fourth amendment to
protest the introduction of one item of evidence,
a later contest to the same evidence based on the
fifth or sixth amendment is just another
iteration of the same claim. "A rehashed claim is
not a new claim." Bennett, 119 F.3d at 472. In
this respect the civil definition of a "claim"
remains instructive; in both civil and criminal
practice it is the underlying events, rather than
the legal arguments advanced to obtain relief
from those events, that demarcate a "claim." The
criminal practice differs because for collateral
attack the "events" in question are what
transpired in court, rather than the out-of-court
events that precipitated the litigation. But the
principle that new legal arguments about the same
events do not amount to a new claim remains.
Accord, Babbitt v. Woodford, 177 F.3d 744, 746
(9th Cir. 1999); McDonald v. Bowersox, 125 F.3d
1183, 1185-86 (8th Cir. 1997). (In re Medina, 109
F.3d 1556, 1565 (11th Cir. 1997), assumes, to the
contrary, that every new legal argument is a new
"claim" for purposes of sec.2244(b)(1), but the
court did not give a reason, and the subject
apparently had not been debated by the
litigants.)

  Brannigan’s sentence was determined by the table
in the Sentencing Guidelines (U.S.S.G. sec.5A)
that combines and specifies the effect of all
calculations that go into the offense level and
criminal history. His current position, however,
depends on disgregating that process. In his
previous application Brannigan complained about
one of the adjustments (two levels for possessing
a weapon); now he uses Apprendi to complain about
the relevant-conduct calculation (that is, the
quantity of cocaine involved). Each petition
concerns the same sentence, and the legal theory
used to challenge that sentence is the Apprendi
principle. It would cut matters entirely too fine
to divide into separate "claims" each element of
the calculation under the Sentencing Guidelines.
That would fracture a single sentence into dozens
of "claims," one for each prior conviction that
affects the criminal history level plus one for
each offense-severity level. For a calculation
that in general is not supposed to allow any
collateral attack, see Scott v. United States,
997 F.2d 340 (7th Cir. 1993) (the Sentencing
Guidelines are not "laws" for purposes of
sec.2255, so errors in calculating the sentence
generally cannot be raised on collateral attack),
this would be overboard. Section 2244(b)(1), like
the Antiterrorism and Effective Death Penalty Act
(AEDPA) of which it is a part, is designed to
promote finality, not to illuminate a route to
pursuing scores of collateral attacks.

  Brannigan’s best argument would be that,
although the last time around he disputed the
calculation under the Sentencing Guidelines, now
he is disputing the district court’s assumption
that the maximum lawful sentence is life
imprisonment rather than, say, the 20-year
maximum for distributing any detectable quantity
of cocaine. See 21 U.S.C. sec.841(b)(1)(C). This
is not a distinction on which Brannigan relies--
recall that he thinks Apprendi applicable to the
whole of the Guidelines calculation, and that
contention, the one he actually presents, is the
same "claim" as before. Moreover, making the
application of sec.2244(b)(1) turn on whether a
petitioner makes a good legal argument (here,
using Apprendi to contest the determination of
the statutory maximum) or a bad legal argument
(in the former application, using Apprendi to
contest a two-level increase for firearms) would
sap that statute of effect. Section 2244(b)(1)
supposes that the first application was bad and
the second better; otherwise the first would not
have been dismissed and it would not be necessary
to invoke principles of preclusion to dismiss the
second. To carve up a trial, conviction, and
sentence in such a way that sound and unsound
legal arguments are necessarily different
"claims" would be to nullify sec.2241 (b)(1). It
is better to conclude that all variations of
Apprendi-based challenges to a single sentence
are a single "claim."

  Section 2244(b)(2)(A) provides an independent
reason for denying a successive application based
on Apprendi. A court of appeals must deny an
application that presents a claim omitted from a
prior application, unless that claim was
"previously unavailable" to the prisoner. If
Brannigan’s latest use of Apprendi is indeed a
"claim" different from the contest to the extra
levels for possessing a weapon, then it had to be
raised at the same time. Section 2244(b)(2)(A)
prevents a prisoner from filing a series of
applications, all based on the same decision, to
challenge different events in his prosecution,
trial, and sentence. Cf. Burris v. Parke, 95 F.3d
465 (7th Cir. 1996) (en banc); In re Page, 179
F.3d 1024 (7th Cir. 1999).

  Thus Brannigan loses either way: under
sec.2244(b)(1) if he has successively presented
different aspects of a single claim, and under
sec.2244(b)(2)(A) if he has two genuinely
different claims based on the same opinion of the
Supreme Court. That is why we denied Brannigan’s
latest application with prejudice.




  Cudahy, concurring in the judgment. The issue
here is whether the application should be
dismissed with prejudice or without. Of course,
as the majority reiterates, the purpose of 28
U.S.C. sec. 2244 is to preclude (in the most
comprehensive way imaginable) any extended
collateral litigation challenging criminal
convictions. In general, the section prescribes
a "one petition and out" format, so that,
excepting extraordinary circumstances, successive
petitions never survive for consideration on the
merits. This format--and our practice in applying
it--presents three possible outcomes for
Brannigan’s successive Apprendi-based petition.
One possible outcome, arising under sec.
2244(b)(1), is that Brannigan’s claim must be
dismissed with prejudice because it was presented
in a prior application. An identical outcome is
dictated by sec. 2244(b)(2), under which it is
our practice to dismiss with prejudice a claim
not presented in a prior application unless it
relies on "a new rule of constitutional law, made
retroactive to cases on collateral review by the
Supreme Court, that was previously unavailable .
. . ." Only if Brannigan has presented a new
claim that relies on a new rule of constitutional
law that was "previously unavailable" to him,
will we dismiss his application without prejudice
under sec. 2244 (b)(2) because the Supreme Court
has not yet declared Apprendi to be retroactive,
although there is a possibility that it will in
the future.

  Judge Easterbrook, the author of today’s
majority opinion, has elsewhere characterized the
effect of sec. 2244 as follows: "If the claim has
been presented before, it has to be dismissed. If
it’s never been presented before, it has to be
dismissed." Constitutional Law Scholars Attempt
to Distill Recent Supreme Court Term, 65 U.S.L.W.
2274, 2287 (1996). It is thus not surprising that
in its haste to ensure that Brannigan never
mounts an Apprendi-based challenge to his
sentence in this court again, the majority
attempts to show that both sec. 2244(b)(1) and
(2) require that Brannigan’s application be
dismissed with prejudice. The majority primarily
and extensively argues that Brannigan has
presented a claim that is identical to the claim
presented in his initial application, and that
Brannigan’s successive application should thus be
dismissed with prejudice under sec. 2244(b)(1).
In the alternative, the majority argues (in a
final paragraph that appears to be little more
than an afterthought) that Brannigan’s claim,
although possibly new, relies on Apprendi--a rule
that was not previously unavailable to him. Thus,
sec. 2244(b)(2) also dictates that Brannigan’s
application be dismissed with prejudice. But, by
devoting its primary effort to the issue of
whether Brannigan is now presenting a new claim
or an old one, the majority may be pursuing an
issue that may have broader ramifications in
other contexts. I will therefore give principal
attention to the majority’s argument about the
meaning of "claim" and bring a secondary focus to
its comments on the alternative ground for
decision, which may turn on the meaning of
"unavailable."
  With respect to the question whether we have
two claims or one, I believe that Brannigan’s
arguments--the first challenging a weapons
enhancement and the second challenging a drug
quantity determination--present different claims.
A claim, specifically in the context of the
federal habeas statute, is "a set of facts giving
rise to a right to a legal remedy." See Bennett
v. United States, 119 F.2d 470, 471-72 (7th Cir.
1997) (Posner, C.J.). A claim is therefore
distinguished by its facts (specifically, by its
"nucleus of operative facts"), not just by the
legal principle that it invokes or the body of
law from which it derives. In principle, the
majority would seem to agree since it correctly
notes that "in both civil and criminal practice
it is the underlying events, rather than the
legal arguments advanced to obtain relief from
those events, that demarcate a ’claim.’" Slip op.
at 4. The majority continues along the same line
of analysis by declaring that "it is essential to
define the ’claim’ as a challenge to a particular
step in the case . . . ." Id. However, the
majority then flees the implications of this
analysis by declaring that "[i]t would cut
matters entirely too fine to divide into separate
’claims’ each element of the calculation under
the Sentencing Guidelines." Id. at 5.

  In my view, the majority’s position simply
rejects the straightforward definition of a
"claim" as being distinguished by its facts
(specifically, its nucleus of operative facts).
The facts surrounding a weapons enhancement are
obviously quite different from the facts
surrounding a drug quantity determination.
Therefore, allegations relating to one set of
facts would in normal parlance constitute a
"claim" separate and distinct from allegations
relating to another set of facts.

  The majority’s position that Brannigan may not
disaggregate the process of U.S.S.G. sec. 5A,
which, in prescribing a sentence, "combines and
specifies the effect of all calculations that go
into the offense level and criminal history,"
slip op. at 5, also results in a definition of
"claim" that might encourage applicants to
challenge their sentence in a manner that is
contrary to generally accepted pleading
requirements. Because the majority refuses to
disaggregate the process of sec. 5A, under the
majority’s reasoning an Apprendi-based challenge
to an applicant’s sentence might require no more
specificity than a general allegation that the
sentencing court somehow violated Apprendi when
it calculated the inmate’s sentence. This, after
all, would be the appropriate event, under the
majority’s theory, to be raised by the petition.
But, were an inmate to file an application
containing such a conclusory allegation, I have
little doubt that we would dismiss it for failure
to allege a sufficiently specific claim. See,
e.g., Dellenbach v. Hawks, 76 F.3d 820, 822 (7th
Cir. 1996) (noting generally that petitions are
dismissed when the petitioner makes conclusory,
rather than specific factual, allegations);
Aleman v. United States, 878 F.2d 1009, 1012-13
(7th Cir. 1989) (conclusory allegation that two
individuals were government informants required
dismissal of sec. 2255 petition). To avoid
dismissal for failure to state a specific claim,
we would require the inmate to specify what
aspect or aspects of his sentencing calculation
ran afoul of Apprendi. This strongly suggests
that the same specific aspects constitute the
"claim" as denoted by sec. 2244(b)(2).

  Thus, I believe that, at least with regard to
Apprendi claims, disaggregation of the sentencing
calculation is required when looking at the facts
that form such a claim. That is what Brannigan
has done here, alleging a violation of Apprendi
because of his weapons enhancement in the first
application, and because of the drug quantity
ascribed to him in the second application. These
claims each rely on a different nucleus of facts,
which is specific enough to avoid dismissal as
conclusory.

  Perhaps realizing the difficulties of its
primary argument, the majority also invokes a
parade of horribles that raises the possibility
of challenging a single sentence multiple times
based on one challenge for each of "dozens" of
prior convictions affecting the criminal history
level, "plus one for each offense-severity
level." Slip op. at 5. But such a scenario poses
no threat in the real world, for it is hard to
imagine that a Supreme Court decision would
provide a non-frivolous basis for invalidating
each one of "dozens" of prior convictions. And if
an inmate files a barrage of frivolous claims,
based on Apprendi or whatever, they can be
quashed regardless of the provisions of sec. 2244
because this court has an arsenal of weapons to
employ against serial filers of frivolous claims-
-whether convicted inmates or others.

  Accordingly, it is entirely reasonable and
consonant with the plain meaning of the statute
to regard a claim based on a firearms enhancement
to be quite different from one based on drug
quantity. The AEDPA requires that we deal
differently with a claim "presented in a prior
application" from one "not presented in a prior
application." Brannigan’s drug quantity claim has
not been presented in a prior application and it
should be dealt with on that basis.
  In its final (almost "throw-away") paragraph of
argument, the majority presents an entirely
different rationale for dismissing with
prejudice. Under sec. 2244(b)(2)(A), we will
dismiss a new claim with prejudice unless the
claim "relies on a new rule of constitutional
law, made retroactive to cases on collateral
review by the Supreme Court, that was previously
unavailable . . . ." Crucial here is the answer
to the question whether Apprendi qualifies as a
new rule that was "previously unavailable" to
Brannigan. It may, of course, be argued that
Apprendi is no longer a new rule from Brannigan’s
perspective because it was decided prior to
Brannigan’s previous habeas corpus application.
See Bennett v. United States, 119 F.3d 470, 472
(7th Cir. 1997); In re Medina, 109 F.3d 1556,
1565 (11th Cir. 1997). It seems to me, however,
that the language of sec. 2244(b)(2)(A) ought to
be read as a whole and that, as long as a rule
remains "unavailable," it must correspondingly be
regarded as "new." Cf. Hernandez v. United
States, 226 F.3d 839, 841 (7th Cir. 2000) ("[A]
new rule that is retroactive for purposes of
collateral attack is not ’available’ for a sec.
2255 motion until the Supreme Court has clearly
ruled that this is the case."). In other words,
a rule remains "new" as long as it is
"unavailable." Since the Supreme Court has not
made Apprendi retroactive to cases on collateral
review, the rule remains unavailable to the
applicant and functionally occupies the same
position as if it were literally "new." Whether
the applicant knew of the existence of the rule
or not--whether it was "new" to him--he could not
take advantage of it; it was not available to
him.

  However, we have the additional circumstance
here that, when he filed his earlier application,
the applicant knew of Apprendi and attempted to
rely on its (then unavailable) rule.
Significantly, however, the panel then considered
his claim as if Apprendi had been made
retroactive to cases on collateral review by the
Supreme Court. Cf. Hernandez, 226 F.3d at 841.
Roughly speaking, that earlier decision was "on
the merits" in that it applied the Apprendi rule
even though Apprendi was then "unavailable." It
may not be stretching things too far to see this
earlier decision as affording Brannigan all the
consideration due him under the statute. On this
basis, I see the factors arguing for and against
dismissal with prejudice as being in equipoise.
A tie, perhaps, goes to the majority, and on that
basis, I can concur in the judgment.
