01-1583 Beyer v. Litscher

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“Section 2244(b) provides that a second or successive ‘claim’ must be dismissed unless the court of appeals has approved its filing under sec.2244(b)(3). The statute does not define the word ‘claim,’ which can cause problems for multiple petitions with respect to a single judgment when the initial petition did not end in a resolution of the merits. … But as we held in Walker v. Roth, 133 F.3d 454 (7th Cir. 1997), a challenge to a different judgment necessarily is a different ‘claim’-unless the prisoner’s contention was or could have been raised before in the same case (for one indictment sometimes ends in multiple judgments, for example after resentencing). … Until the district court’s ruling in Beyer’s case, no one doubted that an initial contest to a judgment in a separate prosecution necessarily is a separate ‘claim.’ It is impossible to see how it could be the same as the objection to the judgment in some other case. It would not be treated as one ‘claim’ for purposes of preclusion (res judicata) or any other doctrine of which we are aware; why should challenges to distinct judgments be one ‘claim’ for purposes of sec. 2244(b)?

“Under Rule 2(d) of the Rules Governing Section 2254 Cases in the United States District Courts, prisoners must file separately to challenge judgments of different courts. Although Rule 2(d) leaves open the possibility of one collateral attack on multiple judgments of the same court, these should be rare. Time factors will differ, exhaustion of state remedies may occur at different times (which will preclude joinder), and so on. Often a prisoner will be required to challenge one sentence (lest the time run) before another is ripe for collateral attack. When multiple convictions are amenable to simultaneous challenge (as Beyer’s were, having been imposed only five months apart by separate divisions of the same court), joinder might help a federal court determine whether a particular claim or theory is moot, for if the sentences are concurrent then an order rejecting a collateral attack on the longer sentence obviates anything else. Yet Beyer’s sentences are consecutive. Anyway, mootness depends on the outcome of a collateral attack (that is, the conclusion of the appellate process, not the decision of the district court), so there is rarely any compelling need for consolidation in the district court even if the sentences overlap.”

Vacated and remanded.

Appeal from the United States District Court for the Eastern District of Wisconsin, Curran, J., Easterbrook, J.