Samuel Todd Taylor v. CHARLES R. GILKEY , Warden

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-3344
S AMUEL T ODD T AYLOR ,
Petitioner-Appellant,
v.
C HARLES R. G ILKEY , Warden,
Respondent-Appellee.
____________
Appeal from the United States District Court
for the Southern District of Illinois.
No. 02-313-GPM—G. Patrick Murphy, Chief Judge.
____________
S UBMITTED O CTOBER 18, 2002—D ECIDED N OVEMBER 6, 2002
____________
Before B AUER , P OSNER , and E ASTERBROOK , Circuit
Judges.
E ASTERBROOK , Circuit Judge. Samuel Taylor is in fed-
eral prison for drug and firearms offenses. Four years ago
we affirmed his convictions and sentences. United States
v. Taylor, 154 F.3d 675 (7th Cir. 1998). Within the time
allowed by 28 U.S.C. §2255 ¶6, Taylor filed in the sen-
tencing court (the Northern District of Indiana) a motion
arguing that an error in applying the Sentencing Guide-
lines’ grouping rules had elevated his range by 6 to 21
months, and that the judge should correct this error by
reducing his sentence. Because the Guidelines are not
“laws” for purposes of §2255, however, this argument could
not support relief. See Scott v. United States, 997 F.2d 340

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2 No. 02-3344
(7th Cir. 1993). Ineffective assistance by counsel in vindi-
cating rights under the Guidelines might do so, but on
the view then prevailing in this court a small increase
in sentence would not establish “prejudice,” making it un-
necessary to inquire whether counsel’s performance was
objectively deficient. See Durrive v. United States, 4 F.3d
548 (7th Cir. 1993). Relying on Durrive the district court
denied Taylor’s motion in November 2000 without inves-
tigating whether the Guidelines indeed required group-
ing and, if so, whether counsel’s failure to call this to the
attention of the trial and appellate courts was constitu-
tionally deficient.
In late 2000 the Supreme Court had under advisement
a case that posed the question whether Durrive had been
correctly decided. All Taylor needed to do in order to take
advantage of a favorable decision was to file a notice of
appeal. He did not, even though the case was decided on
January 9, 2001, before his time to appeal expired. See
Glover v. United States, 531 U.S. 198 (2001) (disapprov-
ing Durrive and holding that the approach to prejudice
articulated in Strickland v. Washington, 466 U.S. 668
(1984), rather than that of Lockhart v. Fretwell, 506 U.S.
364 (1993), applies to claims of ineffective assistance with
respect to sentencing). Instead of appealing, Taylor waited
until a month after Glover and then filed what he styled
a motion under 18 U.S.C. §3582. The district judge de-
nied this motion for two reasons: first, it was not author-
ized by §3582 (which deals with retroactive changes in
the Guidelines); second, it was effectively a second collat-
eral attack, which could not proceed without prior appel-
late approval. See Dunlap v. Litscher, 301 F.3d 873 (7th
Cir. 2002). See generally Godoski v. United States, 304
F.3d 761 (7th Cir. 2002). Taylor did not appeal from that
decision either but let another ten months lapse and then
asked for this court’s permission to commence a new col-
lateral attack. We denied the application in an unpublished

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No. 02-3344 3
order issued on December 10, 2001, stating that “Glover
does not announce a new rule of constitutional law [but
instead] clarifies the standards for analyzing the long-
standing right of effective counsel. Taylor’s proposed claim
therefore does not satisfy the criteria for authorization.” See
28 U.S.C. §2255 ¶8(2).
Taylor, who is incarcerated in a federal prison located
in the Southern District of Illinois, then filed in that court
a petition for a writ of habeas corpus under 28 U.S.C.
§2241. He contended that an error in applying the Guide-
lines deprived the sentencing court of “jurisdiction” and
that a jurisdictional problem never is subject to rules
of waiver, forfeiture, or preclusion. That’s wrong for multi-
ple reasons, of which we mention only one: legal errors do
not imply lack of jurisdiction. See United States v. Cotton,
122 S. Ct. 1781, 1784-85 (2002). As the district judge rec-
ognized, however, Taylor’s big problem is demonstrating
that §2241 is available to him. A legitimate petition under
§2241 does not require prior appellate authorization. See
Felker v. Turpin, 518 U.S. 651 (1996); Valona v. United
States, 138 F.3d 693 (7th Cir. 1998). But §2255 ¶5 puts
§2241 off limits to federal prisoners as a rule:
An application for a writ of habeas corpus in behalf
of a prisoner who is authorized to apply for relief by
motion pursuant to this section, shall not be enter-
tained if it appears that the applicant has failed
to apply for relief, by motion, to the court which
sentenced him, or that such court has denied him
relief, unless it also appears that the remedy by
motion is inadequate or ineffective to test the
legality of his detention.
The Northern District of Indiana denied an application for
relief under §2255, so Taylor is entitled to resort to §2241
only if “the remedy by motion [under §2255] is inadequate
or ineffective to test the legality of his detention.” The

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4 No. 02-3344
district court held that §2255 offered Taylor an effective
remedy and dismissed the petition under §2241. This time
he appealed.
Although the “inadequate or ineffective” language has
been present in §2255 since its enactment, the Supreme
Court has never interpreted its meaning. It has stopped
with the proposition that this language ensures against
any claim that §2255 suspends the writ of habeas corpus.
See Swain v. Pressley, 430 U.S. 372, 381-82 (1977); United
States v. Hayman, 342 U.S. 205, 223 (1952). We held in
Lindh v. Murphy, 96 F.3d 856, 867-68 (7th Cir. 1996)
(en banc), reversed on other grounds, 521 U.S. 320 (1997),
that the writ protected by the Constitution is the writ
known in 1789—the pretrial writ used to thwart unjusti-
fied detention by the executive branch—and not the stat-
utory extensions of collateral review later enacted by
Congress. What the legislature gave, it may withdraw. “The
Suspension Clause is not a ratchet.” Lindh, 96 F.3d at 868.
Accord, Swain, 430 U.S. at 384-86 (Burger, C.J., concur-
ring); Schneckloth v. Bustamonte, 412 U.S. 218, 252-56
(1973) (Powell, J., concurring). Yet although §2255 ¶5 turns
out to be unnecessary to ensure the law’s constitutional-
ity, it remains in force as a statutory rule of decision.
In re Davenport, 147 F.3d 605 (7th Cir. 1998), our only
extended treatment of the language, holds that §2255 is
“inadequate or ineffective to test the legality of [the] de-
tention” when a legal theory that could not have been
presented under §2255 establishes the petitioner’s actual
innocence. In Davenport the issue was the scope of the
statute under which the defendant had been convicted. At
the time of the conviction—indeed, at the time of collat-
eral review under §2255—the law in all federal appellate
courts was against the prisoner’s position. Later the
Supreme Court handed down a decision interpreting the
statute in a way that left a distinct possibility that the
prisoner had not committed a federal crime, yet the rules

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No. 02-3344 5
for second or successive collateral attacks allow only new
constitutional doctrines to be vindicated. Thus even though
the sort of contention that the prisoner sought to raise
justifies collateral review, see Bousley v. United States,
523 U.S. 614 (1998), it did not justify sequential collat-
eral attacks under §2255 ¶8. Because Congress may have
overlooked the possibility that new and retroactive stat-
utory decisions could support collateral review, we held
in Davenport that for this small class of situations §2255
is “inadequate or ineffective to test the legality of [the]
detention.” See also Gray-Bey v. United States, 209 F.3d 986
(7th Cir. 2000).
What Davenport strongly implied—what we now make
explicit—is that a claim of error in addressing the sort
of constitutional theory that has long been appropriate
for collateral review does not render §2255 “inadequate
or ineffective”. Paragraph 5 poses the question whether
the remedy is adequate “to test the legality” of the de-
tention. This implies a focus on procedures rather than
outcomes. Judges sometimes err, but this does not show
that the procedures are inadequate; it shows only that
people are fallible. How often to rerun a search for error
is a question to which §2255 ¶8 speaks directly, and the
statutory limitation to a single collateral attack, unless
the conditions of §2255 ¶8 (elaborated in 28 U.S.C. §2244)
have been met, does not render §2255 inadequate or in-
effective. If it did, then the statute would be internally
contradictory. It would not be sensible to read §2255 ¶8
as making §2255 “inadequate or ineffective” and thus
nullifying itself. This is a subject on which the courts of
appeals are in agreement. Every court that has addressed
the matter has held that §2255 is “inadequate or ineffec-
tive” only when a structural problem in §2255 forecloses
even one round of effective collateral review—and then
only when as in Davenport the claim being foreclosed is
one of actual innocence. See, e.g., Cradle v. United States

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6 No. 02-3344
ex rel. Miner, 290 F.3d 536, 538-39 (3d Cir. 2002); In re
Jones, 226 F.3d 328, 333-34 (4th Cir. 2000); Reyes-Requena
v. United States, 243 F.3d 893, 902-03 (5th Cir. 2001);
United States v. Peterman, 249 F.3d 458, 462 (6th Cir.
2001); Wofford v. Scott, 177 F.3d 1236, 1244 (11th Cir.
1999).
The sort of argument Taylor wants to present—that his
lawyer furnished ineffective assistance by failing to ar-
gue at sentencing or on appeal that his convictions should
have been grouped under U.S.S.G. §3D1.2—has been
around for a long time. It was acknowledged in Durrive
and raised in Taylor’s initial collateral attack. Durrive
used a definition of “prejudice” that the Supreme Court
later replaced with one more favorable to the prisoner,
but this does no more than show that the decision in the
initial collateral attack may have been erroneous. (“May
have been” is the most that one can say; no court has
examined whether the counts should have been grouped
or whether counsel’s failure to argue for grouping ren-
dered his assistance ineffective under Strickland’s stan-
dard.) It does not illuminate any structural defect in §2255
or present any fundamental error equivalent to actual
innocence.
Congress is entitled to—and through §2255 ¶8 did—
decide that two rounds of judicial review are sufficient in
all but the extraordinary situation. Trial, sentencing, and
direct appeal are the first round; an initial collateral at-
tack under §2255 is the second. Taylor used both of these
rounds and could have enjoyed the benefit of Glover had
he bothered to appeal from the denial of his motion un-
der §2255. Once an initial collateral attack has reached
its conclusion, however, a claim of error in the decision
cannot be entertained. “A claim presented in a second or
successive habeas corpus application under section [2255]
that was presented in a prior application shall be dis-
missed.” 28 U.S.C. §2244(b)(1). (Although §2244 refers to

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No. 02-3344 7
§2254 rather than §2255, we have held that the cross-
reference to §2244 in §2255 ¶8 means that it is equally
applicable to §2255 motions. See Bennett v. United States,
119 F.3d 468 (7th Cir. 1997).) The claim Taylor now wants
to present was presented before, so under §2244(b) it
must be dismissed; new legal arguments based on Glover
do not give Taylor a new claim. See Brannigan v. United
States, 249 F.3d 584 (7th Cir. 2001). And we have already
held that Glover does not satisfy the standards for a sec-
ond or successive collateral attack, whether or not a
particular prisoner had raised the same sort of claim in
an initial collateral attack. To say that these limitations
authorize further collateral proceedings would be to use
§2255 ¶5 to return the courts to the world of Sanders
v. United States, 373 U.S. 1 (1963), in which prisoners
may file as many collateral attacks as they please, pro-
vided that they don’t abuse the writ. One goal of the
Antiterrorism and Effective Death Penalty Act of 1996,
which added §2244(b) and §2255 ¶8 to the Judicial Code,
was to replace Sanders with an approach under which
only defined circumstances permit successive collateral
attacks. See Burris v. Parke, 95 F.3d 465 (7th Cir. 1996)
(en banc). The escape hatch in §2255 ¶5 must be applied
in light of that history. If error in the resolution of a
collateral attack were enough to show that §2255 is in-
adequate or ineffective, many of the amendments made
in 1996 would be set at naught. Yet a claim of error is
all Taylor has. He has not pointed to any lacunae on a
par with the one that Davenport and Gray-Bey flagged.
The district court therefore was right to say that Taylor
is not entitled to proceed under §2241.
A FFIRMED

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8 No. 02-3344
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—11-6-02

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