Gilbert W. Pavlovsky , J R . v. John R. Van Natta

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-1911
G ILBERT W. P AVLOVSKY , J R .,
Petitioner-Appellant,
v.
J OHN R. V AN N ATTA ,
Respondent-Appellee.
____________
Appeal from the United States District Court
for the Northern District of Indiana, Hammond Division.
No. 2:04cv189—Philip P. Simon, Judge.
____________
S UBMITTED A UGUST 26, 2005—D ECIDED D ECEMBER 16, 2005
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Before POSNER , M ANION , and E VANS , Circuit Judges.
P OSNER , Circuit Judge. Pavlovsky, a state prisoner, filed a
petition for habeas corpus, 28 U.S.C. § 2254, which the
district judge dismissed as untimely, but without prejudice.
Pavlovsky did not appeal, but three and a half years later he
filed another petition for habeas corpus, which the district
judge again denied as untimely, and this time Pavlovsky
has appealed. The state argues that the district judge had no
jurisdiction over the second petition, because a district court
lacks jurisdiction over a second (or subsequent) petition for

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2 No. 05-1911
habeas corpus unless the court of appeals has approved its
filing in accordance with the criteria set forth in the last
paragraph of section 2254 and the procedure prescribed by
7th Cir. R. 22.2(e). United States v. Scott, 414 F.3d 815, 817
(7th Cir. 2005); Nunez v. United States, 96 F.3d 990, 991 (7th
Cir. 1996); Pratt v. United States, 129 F.3d 54, 57 (1st Cir.
1997). This is true in general; but if the first petition was
dismissed (or returned to the filer without even being
accepted for filing, O’Connor v. United States, 133 F.3d 548,
550 (7th Cir. 1998)) because of a curable technical deficiency,
as where the petition is filed prematurely or in the wrong
district or without payment of the filing fee, so that the
dismissal is not final and therefore “without prejudice,”
then it doesn’t count as the first petition, Slack v. McDaniel,
529 U.S. 473, 489 (2000); Stewart v. Martinez-Villareal, 523
U.S. 637, 644-45 (1998), and the second petition becomes the
first. Moore v. Mote, 368 F.3d 754, 755 (7th Cir. 2004); Altman
v. Benik, 337 F.3d 764, 766 (7th Cir. 2003). The idea is that the
prisoner is entitled to one clean shot at establishing his
entitlement to relief in a federal habeas corpus proceeding.
Dahler v. United States, 259 F.3d 763, 764 (7th Cir. 2001);
Ching v. United States, 298 F.3d 174, 177 (2d Cir. 2002); Haro-
Arteaga v. United States, 199 F.3d 1195, 1197 (10th Cir. 1999).
Once he has gotten that, basic principles of preclusion now
applicable to habeas corpus as to conventional civil pro-
ceedings bar him from relitigating his case. Cf. Lambert v.
Blodgett, 393 F.3d 943, 966 (9th Cir. 2004).
The dismissal of a suit as untimely is a dismissal on the
merits, and so should ordinarily be made with prejudice,
barring relitigation. Kratville v. Runyon, 90 F.3d 195, 198 (7th
Cir. 1996); Lebron-Rios v. U.S. Marshal Service, 341 F.3d 7, 14
(1st Cir. 2003); Kale v. Combined Ins. Co. of America, 924 F.2d
1161, 1164 (1st Cir. 1991). Untimeliness is an affirmative
defense, and if proved shows that the plaintiff has no right

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No. 05-1911 3
of relief; and so if he fails to get the determination upset on
appeal, it is final and binding. The government argues that
we should modify the judgment in Pavlovsky’s first habeas
corpus proceeding to make the dismissal with prejudice;
that would bar his new suit. Altman v. Benik, supra; Ching v.
United States, supra, 298 F.3d at 180 n. 5. But the government
did not appeal that first dismissal, as it could have done (a
winning party can appeal if he wants a bigger win than the
trial court gave him) in order to turn the dismissal into one
with prejudice. Alejo v. Heller, 328 F.3d 930, 937 (7th Cir.
2003); Hargrove v. Brigano, 300 F.3d 717 (6th Cir. 2002);
Farmer v. McDaniel, 98 F.3d 1548 (9th Cir. 1996), overruled
on other grounds in Slack v. McDaniel, supra. It’s too late
now. Fed. R. App. P. 4(a)(1)(A); Bell v. Eastman Kodak Co.,
214 F.3d 798, 801 (7th Cir. 2000).
The state has not cross-appealed from the district court’s
judgment dismissing Pavlovsky’s second complaint, but
that is not the problem. The second dismissal was with
prejudice. The government has no dissatisfaction with the
ruling, so no occasion to appeal. What it cannot do is defend
against Pavlovsky’s appeal by means of a collateral chal-
lenge to an earlier judgment that it could have appealed
from but did not. Federated Dept. Stores, Inc. v. Moitie, 452
U.S. 394, 398 (1981); Bell v. Eastman Kodak Co., supra, 214 F.3d
at 801; Farmer v. Perrill, 275 F.3d 958, 964 (10th Cir. 2001);
Mitchell v. Commission on Adult Entertainment, 12 F.3d 406,
409 (3d Cir. 1993).
Although the state cannot ask us to modify the previous
judgment, it can ask us to recharacterize it as “really” a
dismissal with prejudice, simply mislabeled by the district
judge; and perhaps that is how the state’s improper request
that we “modify” the previous judgment should be under-
stood. But Pavlovsky was entitled to rely on the judge’s
label. The Supreme Court held in Castro v. United States, 540

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4 No. 05-1911
U.S. 375 (2003), that a judge may not recharacterize a pro se
prisoner’s filing as a section 2255 petition (denial of which
could, as argued by the state in this case, preclude a subse-
quent filing) without warning the prisoner and giving him
a chance to withdraw his filing. We had reached the same
conclusion earlier. E.g., Henderson v. United States, 264 F.3d
709 (7th Cir. 2001). And Slack v. McDaniel, supra, 529 U.S. at
487, had warned against setting traps for unwary pro se
litigants. See also Lewis v. Faulkner, 689 F.2d 100 (7th Cir.
1982). Pavlovsky may have been lulled into thinking he
didn’t have to appeal from the first dismissal because it was
without prejudice; for all we know, he might have had a
meritorious ground for appeal. The situation would be
different had the judge dismissed the first case without
indicating whether the dismissal was with or without
prejudice, for then we would have no choice but to charac-
terize the dismissal ourselves.
We conclude that Pavlovsky’s appeal is not, as the
government argues, from a second or subsequent petition,
and so all he requires is a certificate of appealability. 28
U.S.C. § 2253(c). He is not entitled to one, because his
petition was untimely and therefore properly denied—with
prejudice. But we take this opportunity to remind district
judges that they should be careful not to label a dismissal of
a habeas corpus petition on the merits as being without
prejudice, thereby depriving the dismissal of the finality
that it ought to have.

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No. 05-1911 5
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—12-16-05

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