Criminal Procedure — successive appeals

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United States Court of Appeals For the Seventh Circuit

Criminal

Criminal Procedure — successive appeals

A second-in-time motion filed under 28 U.S.C. 2255 is barred as “second or successive” when a prisoner has been resentenced pursuant to a successful first section 2255 motion, and the new motion challenges only the underlying conviction, not the resentencing.

“The Supreme Court recently addressed a closely related but distinct question in Magwood v. Patterson, 561 U.S. ___, 130 S. Ct. 2788 (2010), holding that a petitioner’s second challenge to his sentence under 28 U.S.C. § 2254 was not barred as ‘second or successive’ when it (a) came after the petitioner had been resentenced because of a successful, initial section 2254 petition and (b) asserted a claim based only on the resentencing. The Magwood Court expressly declined to extend its holding to the situation we face here, where the second motion challenges the original conviction, not the new sentence. This circuit’s precedent holds that the second motion here is barred as second or successive. Dahler v. United States, 259 F.3d 763 (7th Cir. 2001). We recognize that the reasoning in Magwood casts some doubt about the continued viability of Dahler. However, because Magwood explicitly limited its holding so as not to reach the situation we face here, we are not persuaded that we should overrule our precedent. Based on the authority of Dahler, we conclude that Suggs’ motion is ‘second or successive’ under section 2255, and we affirm the district court’s dismissal for lack of jurisdiction.”

Affirmed.

10-3944 Suggs v. U.S.

Appeal from the United States District Court for the Southern District of Illinois, Stiehl, J., Hamilton, J.