01-2591 Dahler v. U.S.

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“This distinction between challenges to events that are novel to the resentencing (and will be treated as initial collateral attacks) and events that predated the resentencing (and will be treated as successive collateral attacks) has been adopted by every other circuit that has considered the subject. See, e.g., United States v. Barrett, 178 F.3d 34, 44-45 (1st Cir. 1999); Pratt v. United States, 129 F.3d 54, 61-62 (1st Cir. 1997); Esposito v. United States, 135 F.3d 111, 112-14 (2d Cir. 1997); In re Taylor, 171 F.3d 185, 187-88 (4th Cir. 1999); Barapind v. Reno, 225 F.3d 1100, 1112 (9th Cir. 2000). These courts differ a little in phraseology. For example, Barrett said that a petition is not successive when it ‘challenges parts of the judgment that arose as the result of the success of an earlier petition’, while Barapind stated that a collateral attack is not successive ‘to the extent that the petitioner challenges the amended portion of a judgment or sentence.’ But these come to the same thing, and we could not find any decision doubting that a collateral attack presenting an issue that predated and was unaffected by resentencing is a challenge to the original conviction and sentence. Dahler had a full collateral challenge to his conviction; his current argument that additional issues should have been tried to the jury back in 1995 therefore may be presented to the district court only with our assent.”

Application denied.

On Application for an Order Authorizing a Second or Successive Petition for Collateral Review, Easterbrook, J.