12-2680 | 7th Cir. | Aug 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 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" date_filed="1985-11-18" court="SCOTUS" case_name="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 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’ ” 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] 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 [2] bring it. 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 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" date_filed="1996-10-17" court="7th Cir." case_name="Rafael 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] 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- 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.



[1] Because the Frye rule is not new to our circuit or to the Supreme Court, we express no opinion on whether an (continued...)

[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" date_filed="1999-02-08" court="7th Cir." case_name="Dontay 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).

[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...)

[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.