                          In the

United States Court of Appeals
              For the Seventh Circuit

No. 12-2680

W AYNE M. H ARE,
                                                    Petitioner,
                               v.

U NITED S TATES OF A MERICA,
                                                   Respondent.


              On Motion for an Order Authorizing
                 the District Court to Entertain
                a Second or Successive Motion
                     for Collateral Review.



     S UBMITTED JULY 24, 2012—D ECIDED A UGUST 6, 2012




 Before C UDAHY, M ANION, and H AMILTON, Circuit Judges.
  H AMILTON, Circuit Judge. Wayne Hare pled guilty
during trial to being part of a methamphetamine dis-
tribution conspiracy and was sentenced to 292 months
in prison. According to Hare, he later learned that his
counsel had failed to tell him of a pre-trial plea offer
from the government — one involving significantly less
prison time than he received in the end. Hare has
2                                               No. 12-2680

already tried once and failed to win relief from his con-
viction and sentence under 28 U.S.C. § 2255 on other
grounds. He now seeks permission to file a successive
collateral attack on his sentence pursuant to 28 U.S.C.
§ 2255(h), claiming that his counsel provided ineffective
assistance by failing to inform him of the earlier plea
offer. Hare does not point to new evidence of his inno-
cence, so to file a successive petition, he must rely on
“a new rule of constitutional law, made retroactive to
cases on collateral review by the Supreme Court, that
was previously unavailable.” § 2255(h). He relies on the
Supreme Court’s recent decision in Missouri v. Frye, 132
S. Ct. 1399 (2012), which also involved a failure to com-
municate a plea offer for a lower sentence than the de-
fendant actually received when he later pled guilty.
  Frye does not support Hare’s request for a successive
motion because it did not announce a new rule of con-
stitutional law. The Frye Court merely applied the
Sixth Amendment right to effective assistance of coun-
sel according to the test first articulated in Strickland
v. Washington, 466 U.S. 668 (1984), and established in
the plea-bargaining context in Hill v. Lockhart, 474 U.S. 52
(1985). See Frye, 132 S. Ct. at 1409 (“This application of
Strickland to the instances of an uncommunicated, lapsed
plea does nothing to alter the standard laid out in
Hill.”); see also In re Perez, 682 F.3d 930, 932-33 (11th
Cir. 2012) (concluding Frye did not announce new rule of
constitutional law that would allow successive motion
under § 2255(h)).
  Neither Frye nor its companion case, Lafler v. Cooper,
132 S. Ct. 1376 (2012), directly addressed the old
No. 12-2680                                                 3

rule/new rule question, but the Court’s language repeat-
edly and clearly spoke of applying an established rule
to the present facts. More important, the Court’s actions
show that it was applying an old rule that the state
courts had misapplied. Frye and Cooper were both
decided in the state post-conviction context, where
state courts ordinarily are not held to proper application
of new rules. See Teague v. Lane, 489 U.S. 288 (1989).
We will not assume that the Court believed it was con-
tradicting the Antiterrorism and Effective Death Penalty
Act and Teague by retroactively applying in a collateral
proceeding a new rule that it had just announced. See
Perez, 682 F.3d at 933-34; but see Cooper, 132 S. Ct. at 1392,
1395 (Scalia, J., dissenting) (arguing that Frye and Cooper
announced new rules).
   Hare relies on dicta in United States v. Moya, 676 F.3d
1211, 1214 (10th Cir. 2012), suggesting that the Court
“articulated a new standard for showing prejudice” in
Frye by setting forth a “more general test.” But as
the Tenth Circuit also pointed out, Frye explicitly reaf-
firmed Hill as applied to its facts. Id. The standard
in Frye differs only to the extent that the procedural
facts differed. In Hill the defendant went to trial on de-
fective advice, and in Frye the defendant pled guilty
on defective advice. This difference required the Court
to look “not at whether the defendant would have pro-
ceeded to trial absent ineffective assistance but whether
he would have accepted the offer to plead pursuant to
the terms earlier proposed.” Frye, 132 S. Ct. at 1410. Both
Hill and Frye apply “Strickland’s inquiry into whether
‘the result of the proceeding would have been different’ ”
4                                               No. 12-2680

to a reasonable probability. Id., quoting Strickland, 466
U.S. at 694.
  We recognized long ago the potential for ineffective
assistance claims arising from uncommunicated plea
offers. See Johnson v. Duckworth, 793 F.2d 898, 902 (7th
Cir. 1986) (counsel failed to let defendant decide whether
to accept or reject plea offer; denying relief based on
“unique circumstances” of defendant’s youth and con-
fusion, and counsel’s decision to reject plea offer based
on consultations with defendant’s parents). Since Johnson
we have recognized the right to effective assistance in
the plea negotiation process in various factual circum-
stances. See, e.g., Paters v. United States, 159 F.3d 1043
(7th Cir. 1998) (legally faulty advice about plea offer and
defendant’s options); Gallo-Vasquez v. United States, 402
F.3d 793, 798 (7th Cir. 2005) (recognizing that faulty
advice to reject plea offer may satisfy Strickland perfor-
mance prong). We are not alone in this, as the Supreme
Court noted in Cooper, citing cases from ten circuits. 132
S. Ct. at 1385. This prevailing view among the circuits
is further evidence that the rule announced in Frye was
dictated by the Constitution and by prior Supreme
Court precedents and was therefore not new. Hare can-
not bring a successive collateral attack under § 2255(h)(2)
because the rule governing his claim was established
at the time of his first collateral attack.1



1
  Because the Frye rule is not new to our circuit or to the
Supreme Court, we express no opinion on whether an
                                              (continued...)
No. 12-2680                                                     5

  We must address one other issue. Hare points out
that, as a matter of fact, he could not have included the
present claim of ineffective assistance in his first § 2255
petition because he did not learn of the uncommunicated
plea offer until after the district court had already
rejected that first petition. Although the claim may
have been legally available to him in theory, he says he
did not have the factual knowledge he needed to
bring it.2 Hare asserts he first received a copy of the gov-
ernment’s plea offer through a generalized Freedom
of Information Act request. From what we can discern
from the limited record available to us on this motion,
Hare’s assertion seems plausible. We could remand for


1
  (...continued)
otherwise new rule announced by the Supreme Court could
nevertheless be ineligible as a basis for successive collateral
attacks under the third clause of § 2255(h)(2)—at least in those
circuits that had anticipated the Supreme Court’s decision and
had made the rule “previously available” in that circuit.
2
   We have held that the “newly discovered evidence” excep-
tion in § 2255(h)(1) applies to evidence that concerns guilt —
which Hare admitted — not sentencing. See Banks v. United
States, 167 F.3d 1082, 1083 (7th Cir. 1999) (claim based on errors
in sentencing not within § 2255(h)(1)); see also Burris v. Parke,
130 F.3d 782, 785 (7th Cir. 1997) (new arguments concerning
sentencing not within § 2244(b)(2)(B)(ii)). Thus there is no
“actually innocent of the sentence” exception in § 2255(h).
See also Taylor v. Gilkey, 314 F.3d 832, 835-36 (7th Cir. 2002)
(foreclosing use of § 2241 to reach a new claim of ineffective
assistance in sentencing that was barred by § 2255(h) be-
cause it was not included in the first collateral petition).
6                                                   No. 12-2680

further proceedings on this issue, but that is not neces-
sary because Hare is now procedurally barred from
pursuing his claim further.
   Hare first raised the issue of the uncommunicated plea
offer in his pro se June 3, 2004 motion under Rule 60(b).
The district court construed that motion as a successive
§ 2255 petition and dismissed it for lack of jurisdiction
because Hare did not ask for and obtain our approval to
file a successive collateral attack. Hare filed a timely
motion to reconsider under Rule 59(e), which the
district court also rejected. We affirmed those disposi-
tions in June 2006 in an unpublished order. See also
Nunez v. United States, 96 F.3d 990, 991 (7th Cir. 1996) (“No
matter how powerful a petitioner’s showing, only this
court may authorize the commencement of a second or
successive petition.”); Curry v. United States, 307 F.3d
664, 666 (7th Cir. 2002) (noting that a Rule 59(e) motion
attacking the denial of a successive collateral attack
should itself be construed as a successive attack). Hare’s
Rule 60(b) and Rule 59(e) motions were in fact succes-
sive collateral petitions and were correctly dismissed
because they were not authorized.3


3
  Our cases make clear that we look at the substance of a
motion rather than its title to determine whether it is a suc-
cessive collateral attack. E.g., United States v. Woods, 169 F.3d
1077, 1079 (7th Cir. 1999); Burris v. Parke, 130 F.3d at 785
(Rule 60(b) motions construed as collateral attack); see also
United States v. Rich, 141 F.3d 550, 551-52 (5th Cir. 1998)
(noting the “trend among circuit courts to look beyond the
                                                    (continued...)
No. 12-2680                                                   7

  Hare did not directly appeal his original conviction,
instead choosing to file a § 2255 petition in which he
asserted several claims, including ineffective assistance,
none of which had merit. In 2004, after discovering
yet another way his counsel may have been ineffective
(by failing to communicate the plea offer), Hare did not
seek permission from our court to file a successive
petition, as he was required to do. Such a request for
certification might have been denied for presenting
claims beyond the scope of the limited § 2255(h) excep-
tions even in light of the newly discovered facts. Unless
an exception applies, § 2255 grants one round of
collateral review, not one round per unique claim. But
we were not asked. The question was not properly
before us then and we will not decide it now. Nor did
Hare appeal to the Supreme Court or otherwise object
in 2006 when we affirmed the denial of his unauthorized
petition. Six years have passed. This time Hare did apply
to our court for leave to file, but his current petition has
not been diligently pursued and is time-barred under
§ 2255(f). Johnson v. Robert, 431 F.3d 992 (7th Cir.
2005) (applying timeliness rules to claims proposed in
an application under § 2244(b)).
  This may seem like a hard result, perhaps made harder
by the fact that Hare has been trying pro se to raise seem-


3
  (...continued)
formal title affixed to a motion if the motion is the functional
equivalent” of a § 2255 motion). We do this to police at-
tempted end-runs around the successive petition limitations
of § 2255 by restyling motions in different ways.
8                                              No. 12-2680

ingly credible claims of ineffective assistance from coun-
sel. But there are limits to our ability to accommodate a
defendant’s failure to follow the procedures established by
Congress with the intent of encouraging finality and
limiting most defendants to one round of collateral
review, especially when there is no plausible claim of
actual innocence. The claims Hare now asserts under
Frye have been available to him since before he
pled guilty, and he has known about the uncom-
municated plea offer for eight years. The Supreme
Court’s recent decisions in Frye and Cooper may have
reminded Hare of this issue, but they did not create a
new rule of law and do not excuse his prior failure to
seek permission to file his prior successive petitions.
  Accordingly, we D ENY authorization and D ISMISS the
application for permission to file a successive collateral
attack.




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