David Phillips v. United States, 668 F.3d 433

Phillips pled guilty to transporting a minor for prostitution and was sentenced to 210 months; appeal was dismissed under a plea agreement waiver, which preserved a narrow ineffective assistance exception.
Phillips alleged his former attorney, Lynch, had a conflict of interest from representing a potential witness in a prior case, Melissa Musial, which could have harmed cross-examination and bargaining leverage.
New counsel filed a Rule 60(b)(6) motion during appeal, asserting prejudice from the conflict; the district court denied relief, citing lack of prejudice.
On Phillips’s subsequent appeal, the court questioned whether the Rule 60(b) motion was a new collateral attack or a continuation of the original petition.
This court held the Rule 60(b) motion filed during appeal was a new application for collateral relief, not a mere amendment, and thus outside §2244(b)’s permission without a qualifying successive-plex showing.
Because §2255(h) criteria were not met, the district court lacked jurisdiction to entertain the motion, and the original appeal record controlled.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the Rule 60(b) motion during appeal is a second collateral attack.	Phillips: amendment to pending petition; not a new application.	United States: treated as a new application under Gonzalez v. Crosby.	New application; jurisdiction lacked; cannot treat as amendment.
Whether the conflict prejudiced Phillips’s plea or sentence.	Conflict with Lynch caused ineffective assistance and coercive plea.	No showing that Lynch’s conflict affected representation or plea.	No prejudice shown; no relief.
Whether a district court should have held an evidentiary hearing on the conflict claim.	Evidence could establish prejudice or ineffectiveness.	Record insufficient to warrant an evidentiary hearing.	District court did not abuse discretion; no hearing required.
Whether §2255(h) restrictions require dismissal of a successive collateral attack.	Rule 60(b) motion could be considered in light of pending appeal.	Requires permission for successive collateral challenges; not met.	§2255(h) unmet; case dismissed as improper collateral attack.

Gonzalez v. Crosby, 545 U.S. 524 (2005) (Rule 60(b) motions attacking merits treated as new applications unless sequential criteria met)
Johnson v. United States, 196 F.3d 802 (7th Cir. 1999) (amendments to pending collateral attacks; timing matters)
Calderon v. Thompson, 523 U.S. 538 (1998) (final judgment marks terminal point for certain post-judgment motions)
Hall v. United States, 371 F.3d 969 (7th Cir. 2004) (prejudice required for ineffective assistance claim in conflict-of-interest cases)
Cuyler v. Sullivan, 446 U.S. 335 (1980) (conflict of interest requires showing adverse effect on representation)
United States v. Ibarra, 502 U.S. 1 (1991) (district court jurisdiction and post-judgment procedures for collateral relief)
United States v. Rollins, 607 F.3d 500 (7th Cir. 2010) (post-judgment collateral proceedings and jurisdictional considerations)
Boyko v. Anderson, 185 F.3d 672 (7th Cir. 1999) (Circuit Rule 57 and remand procedures related to pending appeals)