In the
United States Court of Appeals
For the Seventh Circuit

No. 00-3758

Johnny A. Outlaw,

Applicant,

v.

Jerry Sternes, Warden,
Dixon Correctional Center,

Respondent.



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


Submitted October 23, 2000--Decided November 21, 2000




  Before Posner, Easterbrook, and Manion, Circuit
Judges.


  Easterbrook, Circuit Judge. Johnny Outlaw was
convicted in Illinois court of murder, armed
robbery, and burglary. After exhausting all state
remedies, Outlaw sought relief under 28 U.S.C.
sec.2254. The district court denied his petition
in 1993, and this court declined to issue a
certificate of probable cause to appeal. Now
Outlaw wants to commence a second federal
collateral attack, which he cannot do without
this court’s approval under 28 U.S.C.
sec.2244(b).

  Outlaw’s proposed theory is that he did not
receive due process of law, because Thomas
Maloney, the judge who presided at his trial, was
not impartial. Maloney has been convicted of
taking bribes to rule in defendants’ favor in
felony prosecutions. United States v. Maloney, 71
F.3d 645 (7th Cir. 1995). No one believes,
however, that Maloney ever took a bribe to
convict an innocent person, and Outlaw does not
contend that any money changed hands (or even was
solicited) with respect to his case. But he seeks
to employ the theory recognized in Bracy v.
Gramley, 520 U.S. 899 (1997): a judge bribed to
acquit in some cases may lean the prosecution’s
way the rest of the time, either to keep a
balanced record of convictions (and thus deflect
suspicion) or to demonstrate to accused persons
what happens if they do not pay.


  Under sec.2244(b)(2), we may authorize a second
collateral attack only if


(A) the applicant shows that 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; or


(B) (i) the factual predicate for the
claim could not have been discovered
previously through the exercise of due
diligence; and (ii) the facts underlying
the claim, if proven and viewed in light
of the evidence as a whole, would be
sufficient to establish by clear and
convincing evidence that, but for
constitutional error, no reasonable
factfinder would have found the applicant
guilty of the underlying offense.


Maloney was indicted in 1991, two years before
Outlaw filed his initial collateral attack, so
the factual predicate of his claim could have
been discovered long ago, and at all events
Outlaw does not contend that clear and convincing
evidence demonstrates his innocence. That knocks
out sec.2244(b)(2)(B) and requires us to decide
whether Bracy establishes a "new rule of
constitutional law, made retroactive to cases on
collateral review by the Supreme Court, that was
previously unavailable". Bracy was itself a
collateral attack, so if the rule articulated
there was a "new rule" then it has necessarily
been "made retroactive to cases on collateral
review by the Supreme Court" as this court
understands that phrase. See Talbott v. Indiana,
226 F.3d 866, 869 (7th Cir. 2000). But did Bracy
establish a "new rule"? At least one district
judge in this circuit has answered "yes," see
Giangrande v. Roth, 1999 U.S. Dist. Lexis 4171
(N.D. Ill. Mar. 26, 1999), but we hold that Bracy
did not establish a new rule of constitutional
law.


  Nothing in the Court’s opinion in Bracy
suggests that the Justices thought that they were
doing anything novel. They applied a long-
established principle--that the due process
clause forbids trial before a biased judge--to a
particular claim. The novelty, if any, lay in the
means by which Bracy proposed to establish
Maloney’s bias: undertaking discovery to show
that, when Maloney had not been bribed, he unduly
favored the prosecution. This court held that
discovery into Maloney’s behavior in other cases
would be unproductive and should not be allowed.
81 F.3d 684 (7th Cir. 1996). The Supreme Court,
by contrast, held that Bracy was entitled to the
discovery he sought. There was no dispute among
the Justices about the principle that decisions
by judges influenced by financial interests do
not provide due process of law; the dispute
concerned how that influence was to be proved.
Disagreement about such procedural issues does
not demonstrate that a new rule of constitutional
law has been created--it does not change any of
the norms that govern how criminal trials should
be conducted--or indeed that Bracy was about the
Constitution in the first place. The Justices did
not hold, for example, that the rules of
discovery in collateral attacks are beyond the
power of Congress to alter. The omission from
Bracy of any discussion of Teague v. Lane, 489
U.S. 288 (1989), is telling. If the Justices had
supposed that they were altering constitutional
standards, they would have discussed Teague’s
criteria for the retroactive application of new
rules. The absence of such a discussion implies
that the Court did not see any (constitutional)
novelty in its decision and supports our
conclusion that Bracy was about discovery
procedure rather than constitutional substance.


  What is more, it seems unlikely that Outlaw’s
application is timely, even if Bracy had created
a new rule. Bracy was decided in June 1997, but
Outlaw did not file his application until October
2000, a gap of more than three years. Given
sec.2244(d)(1)(C), he had only one year from "the
date on which the constitutional right asserted
was initially recognized by the Supreme Court, if
the right has been newly recognized by the
Supreme Court and made retroactively applicable
to cases on collateral review". Section
2244(b)(3)(A) requires our leave to file "a
second or successive application permitted by
this section", and an application is not
"permitted by this section" (which is to say, all
of sec.2244) if it is untimely. A prisoner
seeking permission to commence an additional
collateral attack therefore must demonstrate that
the petition is timely, something Outlaw has not
done.


  Some of the delay since June 1997 may be
excused by sec.2244(d)(2) ("The time during which
a properly filed application for State post-
conviction or other collateral review with
respect to the pertinent judgment or claim is
pending shall not be counted toward any period of
limitation under this subsection."), but Outlaw’s
application does not attempt to count excludable
time. Unless two years and four months since
Bracy are excludable, the application is too
late. Outlaw did not seek collateral review on
his judicial-bias theory in state court until
June 6, 1998, so almost a full year passed after
Bracy before he took an initial step. His
application mentions that the state court
dismissed the application (and that appeals
failed to reinstate it), but in contravention of
Circuit Rule 22.2(a)(3) Outlaw did not provide
copies of the state court’s decisions, nor did he
tell us the state court’s reasoning. If (as is
likely, see 725 ILCS 5/122-1(c)) the state
proceeding was itself dismissed as untimely, then
none of the time is excludable. See Artuz v.
Bennett, No. 99-1238 (U.S. Nov. 7, 2000), slip
op. 4 & n.2; Fernandez v. Sternes, 227 F.3d 977
(7th Cir. 2000), and cases cited there.


  The application for an order authorizing a
second collateral attack is denied.
