98-1803 Fischer v. U.S.

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“Although Supreme Court case law issued during the pendency of an appeal may provide inmates and their counsel with a powerful new ground for relief that they may wish they had presented to the district court, an appellate court is not the proper venue to consider such a ground for the first time. See id. If the original petition did not contain this ground for relief, then that ground has been waived on appeal, see id., and a prisoner’s habeas options are thereafter limited by the special rules that apply to second or successive collateral attacks.

“Here, as in Gray-Bey, Fischer failed to challenge the lack of jury unanimity in his habeas petition before the district court, and therefore he cannot raise the claim before this court.

“Fischer attempts to circumvent this bar by pointing to our statement in our Rule 35 decision that a Richardson claim ‘should be litigated under 28 U.S.C. sec. 2255,’ not under Rule 35. 205 F.3d at 972. Fischer contends that this statement permits him to now raise his Richardson claim even though he did not raise this claim before the district court. Fischer, however, is mistaken as our opinion rejecting Fischer’s Rule 35 appeal only informed Fischer of the proper method to raise his Richardson claim. Similarly, our motion granting Fischer a certificate of appealability only allowed Fischer to obtain this court’s review. See Ramunno v. United States, 264 F.3d 723, 724-25 (7th Cir. 2001). Neither the Rule 35 opinion, nor the certificate of appealability relieved Fischer of complying with the procedural requirements necessary to pursue his Richardson claim, and his failure to challenge the lack of jury unanimity before the district court is fatal to his claim on appeal.”

Affirmed.

Appeal from the United States District Court for the Southern District of Illinois, Foreman, J., Kanne, J.