02-1960 Dunlap v. Litscher; 02-2008 Hunt v. U.S.; 01-2082 Lanzotti v. U.S.

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“Hunt based his Rule 60(b) motion, filed while his request for a certificate of appealability from the district court’s denial of his habeas corpus application based on a similar ground was pending in this court, on the ubiquitous Apprendi decision. After we denied the certificate on the ground that Hunt had made ‘no substantial showing of the denial of a constitutional right,’ for he had failed to show a violation of Apprendi, see Curtis v. United States, 294 F.3d 841, 844 (7th Cir. 2002); United States v. Knox, 287 F.3d 667, 669 (7th Cir. 2002), which anyway is not to be applied retroactively to habeas corpus cases, Talbott v. Indiana, 226 F.3d 866 (7th Cir. 2000), the district court denied his Rule 60(b) motion as moot. The motion was properly dismissed, but not because it was moot; rather, because Rule 60(b) cannot be used to seek relief on the basis that the movant’s conviction was based on a mistake of law, for that is territory occupied by AEDPA. Lanzotti based his Rule 60(b) motion on newly discovered evidence that his lawyer in his criminal trial had given him ineffective assistance. The district court, though noting that it was an unauthorized collateral attack, denied the motion on its merits. Again error. The motion was precluded by AEDPA.”

“So the three motions were properly rejected, though on the wrong grounds. Dunlap’s and Lanzotti’s, moreover, should have been dismissed rather than denied, given that the district courts lacked jurisdiction. Hunt’s motion was dismissed, albeit on the wrong jurisdictional ground (mootness). The judgment in Hunt is therefore affirmed, but the judgments in Dunlap and Lanzotti are vacated and those cases remanded to the respective district courts to dismiss for lack of jurisdiction.”

Affirmed, vacated and remanded.

Posner, J.