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Seventh Circuit affirms stance on successive habeas petitions challenging convictions undisturbed by prior petitions

Benjamin Barry Kramer v. United States, 7th Circuit Court of Appeals No. 14-3049, 8/17/15

Sticking with its decision in Suggs v. United States, 705 F.3d 279 (7th Cir. 2013), the Seventh Circuit holds that Kramer’s most recent habeas petition challenging a conviction that was not affected by his three previous petitions is a second or successive petition and Kramer therefore needed authorization to file the petition from the Court of Appeals under 28 U.S.C. § 2244(b)(3)(A).

The complicated history of Kramer’s case, and the ultimate result here, well illustrate how even meritorious claims can get trapped in the morass of habeas procedural rules. Kramer was convicted in 1988 of conspiring to distribute marijuana in violation of 21 U.S.C. § 846 and engaging in a Continuing Criminal Enterprise (“CCE”) in violation of 21 U.S.C. § 848(b). Kramer’s § 846 conviction and sentence were vacated in 1998 after he filed a habeas petition based on Rutledge v. United States, 517 U.S. 292 (1996), which held that § 846 offenses are lesser-included offenses of § 848 CCE offenses. The petition also challenged the CCE conviction, but that conviction was affirmed. In 1999 Kramer filed another habeas challenging his CCE conviction in light of Richardson v. United States, 526 U.S. 813 (1999), and that petition was denied as an unauthorized second or successive petition.

Kramer filed another petition challenging the CCE conviction in 2014, after Magwood v. Patterson, 561 U.S. 320 (2010), was decided. Magwood held that “second or successive” refers to the state court judgment being challenged, so if a new judgement (after resentencing, for example) is being challenged the petition is not second or successive. But Magwood didn’t decide whether a petition challenging a judgment after resentencing could also challenge an underlying conviction that was left intact by the order for resentencing. The Seventh Circuit answered that question in the negative in Suggs which, the court concludes, bars Kramer’s newest petition:

Kramer is barred from bringing a successive section 2255 motion, unless his petition falls into one of the narrow exceptions permitted [newly discovered evidence or a new, retroactive rule of constitutional law] for a subsequent motion…. Kramer argues, however, that his petition should be considered a first, non-successive motion. ….

Kramer argues that Suggs is inapplicable to his case, because Suggs involved only the vacatur of a sentence and not an underlying conviction. Kramer’s successful section 2255 motion resulted in the vacatur of a conviction. That difference, Kramer argues, renders Suggs distinguishable and his judgment “new” under Magwood.

Kramer is correct in stating that Suggs did not involve the prior vacatur of a conviction. But Kramer does not explain why that distinction is meaningful for the purposes of a Magwood analysis. Both Suggs and Kramer employed later section 2255 motions to challenge convictions that were undisturbed by their prior motions and judgments. In Kramer’s case, the court expressly denied Kramer’s requested relief on the section 848 conviction that is the subject of Kramer’s current petition.

Indeed, Suggs had an arguably stronger claim than Kramer that, under Magwood, his motion should be considered non-successive. The conviction that Suggs sought to challenge was the very one that resulted in both the vacated and new sentences. In Kramer’s case, he is seeking to challenge an entirely separate conviction. Only Kramer’s section 846 conviction and sentence were implicated by his successful section 2255 motion. Both his sentence and his conviction for the section 848 were entirely undisturbed.

Moreover, underlying our decision in Suggs was the weight of stare decisis. The Supreme Court expressly declined to weigh in on the result in a case where a petitioner who had raised a successful sentencing challenge under section 2255 and then later raised another 2255 claim challenging the underlying conviction. In light of that uncertainty, we concluded we were bound to continue to follow our own established precedent. This is no less true under Kramer’s facts than under those presented in Suggs. (Slip op. at 16-18).

Note that this procedural hurdle bars consideration of what is ultimately a winning legal argument that Kramer raised on direct appeal and previous petitions, for “[i]t is beyond dispute that, in Richardson, the Supreme Court invalidated the very jury instruction that was employed in Kramer’s case.” (Slip op. at 15-16).

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