Isaac Johnson v. BRADLEY J. ROBERT , Warden, Centralia Correctional Center

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-4525
I SAAC J OHNSON ,
Applicant,
v.
B RADLEY J. R OBERT , Warden,
Centralia Correctional Center,
Respondent.
____________
Application for Permission to Initiate
a Second or Successive Collateral Attack
____________
S UBMITTED D ECEMBER 9, 2005—D ECIDED D ECEMBER 15, 2005
____________
Before B AUER , E ASTERBROOK , and R OVNER , Circuit
Judges.
P ER C URIAM . Isaac Johnson seeks permission to initi-
ate another collateral attack on his conviction and 80-
year sentence for murder. See 28 U.S.C. §2244(b)(3). Al-
though his application is not entirely clear, he relies in
substantial part on Apprendi v. New Jersey, 530 U.S. 466
(2000), and implies that he would invoke Blakely v. Wash-
ington, 542 U.S. 296 (2004), which elaborates on how
Apprendi applies to sentencing in state prosecutions.
Apprendi was decided several years ago, and Blakely was
issued on June 24, 2004. Johnson’s application under
§2244(b)(3) was not filed until December 7, 2005, more than
a year later.

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2 No. 05-4525
Because 28 U.S.C. §2244(d)(1) establishes a one-year pe-
riod of limitations, Johnson’s application is too late. The
year usually runs from the date on which the convic-
tion became final, which for Johnson was long before
the Supreme Court decided Apprendi. A proviso in
§2244(d)(1)(C) restarts the clock on “the date on which
the constitutional right asserted was initially recognized by
the Supreme Court, if the right has been newly recognized
by the Supreme Court and made retroactively applicable to
cases on collateral review”. Whether we use Apprendi
or Blakely as the benchmark, “the date on which the
constitutional right asserted was initially recognized by the
Supreme Court” is more than a year before Johnson filed
this application. The Supreme Court held in Dodd v. United
States, 125 S. Ct. 2478 (2005), that a provision in 28 U.S.C.
§2255 materially identical to §2244(d)(1)(C) runs from the
date the right was initially recognized, even if the Court
does not declare that right to be retroactive until later.
Dodd is equally applicable to §2244(d)(1)(C), so there is no
point in authorizing Johnson to file another collateral
attack. Because he waited too long, it is unnecessary to
decide whether his claim would be a substantial one on the
merits.
Johnson adverts to a number of other potential conten-
tions, such as the possibility that his trial lawyer furnished
ineffective assistance, but these likewise would be untimely.
Johnson should have pursued them in his initial federal
collateral attack.
The application is denied.

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No. 05-4525 3
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—12-23-05

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