Opinion
No. (97 C 7665)
November 12, 2002
MEMORANDUM OPINION AND ORDER
Under the rubric of this long-ago-disposed-of 28 U.S.C. § 2255 proceeding, Richard Bailey ("Bailey") — having been sentenced by this Court more than seven years ago following his guilty plea (see the several opinions by this Court reported beginning at 892 F. Supp. 997 (N.D. Ill. 1995)) — has just filed three related documents:
All further references to Title 28's provisions will simply take the form "Section __."
At that time Bailey was represented by experienced criminal defense counsel Patrick Tuite, Esq. and Ronald Menaker, Esq. This Court's judgment was affirmed by our Court of Appeals on October 9, 1996 ( 97 F.3d 982 (7th Cir. 1996)).
1. "Defendant's Motion To Vacate Judgment" (referred to here as "Motion 1"), in which Bailey seeks to invoke Fed.R.Civ.P. ("Rule") 60(b) to challenge this Court's November 25, 1997 order that dismissed Bailey's original Section 2255 motion for post-conviction relief, after both sides had responded to this Court's directive that they address the issue of the motion's timeliness or untimeliness in light of the then-recent enactment of the Antiterrorism and Effective Death Penalty Act ("Act");
2. "Defendant's Motion To Amend Defendant's Original 2255 Motion" (referred to here as "Motion 2"); and
3. "Defendant's Motion for Appointment of Counsel" (referred to here as "Motion 3").
For the reasons stated here, Motions 1 and 2 are denied because Bailey has submitted them to the wrong court, while those denials moot Motion 3 (which is therefore denied on mootness grounds).
Both Motions 1 and 2 demonstrate that Bailey's current effort is more properly characterized as a "second or successive" Section 2255 motion, which is required by the last paragraph of that section and by Section 2244(b)(3) to be submitted to our Court of Appeals for authorization to proceed (rather than to be addressed to this Court in the first instance). To see why that is so, some background elaboration is in order.
When this Court held back in 1997 that Bailey's original Section 2255 motion was untimely, our Court of Appeals had not yet spoken to the issue whether the one-year time clock inserted into Section 2255 by the Act began to tick on the affirmance of a defendant's conviction or on the later date when the appellate mandate issued. At that time only one Court of Appeals had spoken to that issue (in an unpublished opinion in Jones v. United States, 114 F.3d 1198 (10th Cir. 1997)), so that this Court looked to that decision and applied the earlier date, under which Baileys attempted collateral attack was out of time. But because the timing question was an open one in this Circuit, this Court issued a certificate of appealability to allow Bailey to present the issue to our Court of Appeals.
Although Bailey thus had the opportunity to submit the timeliness question directly to the Seventh Circuit, he decided after consultation with his newly retained counsel to dismiss his appeal voluntarily on March 2, 1998. Not long after that our Court of Appeals decided Gendron v. United States, 154 F.3d 672, 674 (7th Cir. 1998) (per curiam), in which it held that the operative date for Section 2255 purposes was the issuance date of that court's mandate (a date that would have caused Bailey's original Section 2255 motion to be timely by one day).
But more than four years have elapsed since the Gendron decision (during which time its ruling has been reconfirmed and applied by our Court of Appeals on several occasions), so that Bailey's present effort to obtain post-conviction review would clearly be untimely even if the issuance of the Gendron decision had somehow triggered a new one-year time period under the penultimate paragraph of Section 2255, or even if Bailey could somehow seek the benefit of Rule 60(b)'s "reasonable time" provision post-Gendron. And as if that were not enough, Motion 2 ¶ 12 reveals that in June 2001 Bailey went to the Court of Appeals to request its authorization for a second or successive Section 2255 motion, at that time seeking to invoke the application of Apprendi v. New Jersey, 530 U.S. 466 (2000). Even though Gendron was then nearly three years old, Bailey did not at that time raise the issue that he now seeks to advance.
Bailey attempts to explain away that omission by saying that he was then unaware of Gendron (Motion 2 ¶ 12). But of course time limitations such as those established by Sections 2255 and 2254 cannot be measured from the time that a convicted defendant learns of the existence of relevant authority, else the entire concept of repose that underlies such provisions would be frustrated.
In sum, Bailey's attempt to resuscitate his 1997 motion under Section 2255 by calling Rule 60(b) into play is bootless. What he is really attempting is to file a second or successive Section 2255 motion, and that must be brought before our Court of Appeals. As stated at the outset, Motions 1 and 2 are denied on that ground, while Motion 3 fails because it is rendered moot by the denial of the other two motions.
Because of the nature of this ruling, this opinion has avoided comment on Bailey's substantive claims that he has been the victim of bad advice from every lawyer (or jailhouse lawyer) whom he has dealt with other than Messrs. Tuite and Menaker. This opinion has also eschewed any discussion of the patent inapplicability of Apprendi to Bailey's situation.