Bill J. Benefiel v. CECIL DAVIS , Superintendent, Indiana State Prison

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 03-1968 & 05-1736
B ILL J. B ENEFIEL ,
Petitioner-Appellant,
v.
C ECIL D AVIS , Superintendent,
Indiana State Prison,
Respondent-Appellee.
____________
Appeals from the United States District Court for the
Southern District of Indiana, Terre Haute Division.
No. TH 00-057-C-Y/H—Richard L. Young, Judge.
____________
S UBMITTED M ARCH 28, 2005—D ECIDED M ARCH 31, 2005
____________
Before B AUER , E ASTERBROOK , and E VANS , Circuit Judges.
E ASTERBROOK , Circuit Judge. Bill Benefiel, who is under
sentence of death, exhausted his claims in state court, and
this court held that he is not entitled to federal collateral
relief. Benefiel v. Davis, 357 F.3d 655 (7th Cir.), cert. denied,
125 S. Ct. 481 (2004). Indiana has set an execution date of
April 21, 2005.
Benefiel wants another round of federal collateral review.
To obtain it, he needs this court’s permission under 28 U.S.C.

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2 Nos. 03-1968 & 05-1736
§2244(b). But he has not applied under this provision,
doubtless because his lawyers recognize that its conditions
cannot be satisfied. He contends that Smith v. Texas, 125 S.
Ct. 400 (2004), makes it “clear” that the district court (and
presumably this court) erred in denying his original
application for relief. But he does not contend that Smith
establishes a new rule of constitutional law that the
Supreme Court has declared to apply retroactively, so it
does not permit a second round of federal collateral review.
Moreover, the Supreme Court denied Benefiel’s petition
for certiorari while Smith was under advisement, and it
denied his petition for rehearing two months after issuing
Smith. See 125 S. Ct. 953 (2005). Had that Court thought
that Smith bore on the propriety of our decision, it would
have held Benefiel’s petition for its issuance and then re-
manded for further proceedings. Alternatively it could have
granted rehearing and remanded, if any relation between
Smith and Benefiel’s case was not evident earlier. Either
step would have obviated any need to satisfy §2244(b).
Instead the Court denied Benefiel’s petition outright.
In an effort to avoid the statutory limits on multiple col-
lateral litigation, Benefiel asked the district court to reopen
the original proceedings under Fed. R. Civ. P. 60(b). (The
motion referred to the court’s “inherent equitable powers,”
which adds nothing. See Landau & Cleary, Ltd. v. Hribar
Trucking, Inc., 867 F.2d 996, 1002 (7th Cir. 1989).) The
district court denied the motion, treating it as a poorly dis-
guised attempt to obtain a second round of federal collateral
review. Under Nuñez v. United States, 96 F.3d 990 (7th Cir.
1996), a district court has no option other than to dismiss
such a request for want of jurisdiction and advise the
petitioner to file the appropriate motion in this court.
Instead of filing a motion under §2244(b), Benefiel filed a
notice of appeal, which has been docketed as No. 05-1736.
He also asked us to (a) recall our mandate and reopen our
original decision in No. 03-1968, and (b) issue a stay of ex-

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Nos. 03-1968 & 05-1736 3
ecution. We shall do neither. Instead we summarily affirm
the district court’s decision.
The district court’s decision is compelled by circuit law.
Benefiel’s Rule 60(b) motion was equivalent to a fresh col-
lateral attack. See, e.g., Dunlap v. Litscher, 301 F.3d 873
(7th Cir. 2002); Burris v. Parke, 130 F.3d 782 (7th Cir. 1997).
Although the Supreme Court has under consideration the
question when Rule 60(b) motions should be treated as sub-
sequent collateral proceedings, see Gonzalez v. Crosby, cert.
granted, 125 S. Ct. 961 (2005) (to be argued Apr. 25, 2005),
none of the positions taken by the different circuits would
assist Benefiel. The position most favorable to him—the
majority opinion in In re Abdur’Rahman, 392 F.3d 174 (6th
Cir. 2004) (en banc)—would deem his motion a successive
collateral attack because it contests the constitutionality of
his conviction, as opposed to the adequacy of the federal
proceedings. Unless the Supreme Court were to adopt in
Gonzalez a position that has not prevailed in any circuit,
Benefiel has no prospect of success.
Actually he has no prospect of a favorable outcome even
if the Supreme Court were to decide in Gonzalez that a Rule
60(b) motion never counts as a successive collateral attack.
For to prevail, Benefiel still would need a good motion
under Rule 60(b), and it is established that decisions
released after a judgment becomes final do not justify re-
opening that judgment under Rule 60(b). See, e.g., Agostini
v. Felton, 521 U.S. 203, 239 (1997); Norgaard v. DePuy
Orthopaedics, Inc., 121 F.3d 1074 (7th Cir. 1997). The
district judge did not abuse his discretion in applying that
settled norm and denying Benefiel’s motion.
As for the motion to recall the appellate mandate: Calderon
v. Thompson, 523 U.S. 538, 553-54 (1998), holds that such
a motion is governed by the criteria of §2244(b), whether or
not it technically initiates a subsequent collateral pro-
ceeding. This is, by the way, another possible outcome of

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4 Nos. 03-1968 & 05-1736
Gonzalez: A Rule 60(b) motion may not be granted unless it
meets the criteria of §2244(b), making it unnecessary to
decide whether it “is” a subsequent collateral attack. Cf.
Felker v. Turpin, 518 U.S. 651, 662-63 (1996) (an original
application in the Supreme Court under 28 U.S.C. §2241 is
not technically a second or successive collateral attack, and
thus is not directly governed by §2244(b), but the Court will
apply its substantive criteria nonetheless). Because, as we
have observed, the criteria of §2244(b) are not satisfied,
recall of our mandate would be unwarranted.
Finally, because the district court correctly denied the
motion, and our mandate will not be recalled, there is no
justification for a stay of execution. The federal collateral
proceedings are over.
Benefiel’s contention that cutting off opportunities for con-
tinuing collateral review suspends the writ of habeas corpus,
in violation of Art. I §9 cl. 2, is incorrect for the reasons
covered in Lindh v. Murphy, 96 F.3d 856, 867-68 (7th Cir.
1996) (en banc), reversed on other grounds, 521 U.S. 320
(1997). What is protected from suspension is the writ that
limits a person’s detention by the executive branch without
trial. There is no constitutional entitlement to post-judg-
ment collateral review by the inferior federal courts, let
alone to unending rounds of such review.
The judgment of the district court is affirmed. The motion
to recall the mandate in No. 03-1968 is denied. The motion
for a stay of execution is denied. Treating the papers as a
request to initiate a second federal collateral attack, we
deny that application.

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Nos. 03-1968 & 05-1736 5
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—4-7-05

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