Tommy L. Rutledge v. United States of America

In the
United States Court of Appeals
For the Seventh Circuit
No. 99-1686
Tommy L. Rutledge,
Petitioner-Appellant,
v.
United States of America,
Respondent-Appellee.
Appeal from the United States District Court
for the Central District of Illinois, Rock Island Division.
No. 97-4054--Michael M. Mihm, Judge.
Argued September 28, 2000--Decided October 24, 2000
Before Flaum, Chief Judge, and Bauer and Harlington
Wood, Jr., Circuit Judges.
Flaum, Chief Judge. Tommy Rutledge appeals the
denial of his federal habeas petition. He
challenges the reinstatement of a vacated
conviction and raises various claims related to
the inadequate performance of both his trial and
habeas counsels. For the reasons stated herein,
we affirm the district court.
I. Background
Petitioner Rutledge was indicted in February,
1991 on six counts related to running a narcotics
enterprise. The charges were: conducting a
continuing criminal enterprise in violation of 21
U.S.C. sec. 848 ("CCE") ("Count I"); conspiring
to distribute cocaine in violation of 21 U.S.C.
sec. 846 ("Count II"); distribution of cocaine in
violation of 21 U.S.C. sec. 841(a)(1) ("Count
III"); possession of a firearm by a convicted
felon in violation of 18 U.S.C. sec. 922(g)
("Count IV"); and using or carrying a firearm
during the commission of a drug offense in
violation of 18 U.S.C. sec. 924(c) ("Count V" and
"Count VI"). Kim Mummert, a member of Rutledge’s
enterprise and his girlfriend at the time,
cooperated with the government, and testified
that on hundreds of occasions she saw Rutledge
give cocaine to other members of the organization
with instructions as to whom to deliver the

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cocaine and how much money to collect. The
government sought to establish the distribution
count through Michael Wright, who testified that
he purchased cocaine from Rutledge on January 27,
1989. Following a jury trial, Rutledge was found
guilty of all six counts on June 25, 1992.
Rutledge received life imprisonment on the CCE
count, life imprisonment without the possibility
of parole for the conspiracy and distribution
counts, and ten years imprisonment for the felon
in possession of a firearm count, which were all
to run concurrently. Rutledge received five years
imprisonment for Count V and ten years
imprisonment on Count VI, which were to run
consecutively to each other and the other
sentences. Rutledge’s convictions and sentences
were affirmed by this court on direct appeal.
United States v. Rutledge, 40 F.3d 879 (7th Cir.
1994). Following precedent in this circuit, we
held that Rutledge could be convicted of and
sentenced for both CCE and conspiracy to
distribute drugs, even though the latter is a
lesser included offense of the former, so long as
the sentences ran concurrently. Id. at 886.
The Supreme Court reversed, holding that because
conspiring to distribute drugs is a lesser
included offense of CCE either Count I or Count
II must be vacated. Rutledge v. United States,
517 U.S. 292, 307 (1996). The Supreme Court
remanded Rutledge’s case to this court, and we
remanded to the district court with directions to
vacate either the CCE or conspiracy conviction.
The district court vacated the conspiracy
conviction and resentenced Rutledge on the
remaining five convictions, giving him the same
sentence for each conviction as it had after
trial.
In the months leading up to the district
court’s decision on the 28 U.S.C. sec. 2255
motion which is the subject of this appeal,
Rutledge and the government filed a number of
motions and responses, of which only the ones
relevant to this appeal are mentioned. On April
24, 1997, Rutledge, acting pro se, filed a motion
pursuant to sec. 2255 to vacate his convictions
and correct his sentence. Among his other claims,
Rutledge asserted that he had received
ineffective assistance of counsel regarding his
distribution count because his trial counsel
failed to interview Mummert and Wright and
present an alibi defense.
On November 12, 1997, the district court
appointed counsel for Rutledge in order to
develop the arguments raised in his sec. 2255
motion. In a December 4 telephone conference, the
district court requested that counsel address
whether the court could reinstate Rutledge’s

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conspiracy conviction if it vacated his CCE
conviction. Rutledge’s appointed attorney filed
a supplemental memorandum on March 26, 1998,
which provided additional and detailed legal
support for Rutledge’s claims. On June 18, the
district court held a conference concerning
Rutledge’s case. After discussion and debate with
counsel, the court tentatively announced parts of
its decision regarding Rutledge’s claims. Among
other conclusions, the court indicated that it
would reject Rutledge’s claim that his trial
counsel had been ineffective with respect to the
distribution charge.
On September 25, 1998, the court issued an
order granting in part and denying in part
Rutledge’s sec. 2255 motion and resolved certain
other outstanding motions. Rutledge v. United
States, 22 F. Supp.2d 871 (C.D. Ill. 1998). The
court vacated the CCE conviction as well as
Counts V and VI, and reduced the sentence for
Count III (distribution) from life without parole
to thirty years. The court reinstated Count II,
the conspiracy conviction, rejecting Rutledge’s
claims that he would be prejudiced by this
reinstatement because he received a harsher
sentence on Count II than Count I and that the
court lacked statutory jurisdiction to reinstate
a vacated sentence. The court also finalized its
rejection of Rutledge’s arguments that his trial
counsel had been ineffective regarding the
distribution count. The court entered judgment on
October 16, 1998.
On October 2, 1998, the district court docketed
a September 20, 1998 letter from Rutledge to his
sec. 2255 counsel, a copy of which Rutledge had
sent to the court. This letter detailed ways in
which Rutledge believed his sec. 2255 counsel had
performed inadequately. Rutledge’s letter claimed
that both his sec. 2255 and trial counsels failed
to interview witnesses including Wright, Mummert,
and Brandy Bolen. Attached to the letter were
various declarations from these witnesses or
persons who had talked to these witnesses. One
attachment was a transcript of an interview
between Bolen and a private investigator hired by
Rutledge, in which Bolen said that on January 27,
1989, Rutledge had left the area where the
distribution was supposed to have occurred before
Wright arrived.
On October 5, 1998, Rutledge’s counsel filed a
timely motion to alter or amend the judgment.
Rutledge filed pro se motions to reconsider the
district court’s decision on October 6, October
15, November 12, and November 25. On November 20,
the court docketed Rutledge’s pro se motion to
strike the motion to alter or amend the judgment
filed by his attorney, to dismiss his appointed

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counsel and proceed pro se, and to extend the
time to file his notice of appeal from the
court’s ruling. The clerk of the court also
received a notice of appeal from Rutledge on or
shortly before November 23, but did not file this
in the district court docket.
The district court held a telephone conference
with Rutledge, his attorney, and the government
on November 25. The district court asked Rutledge
whether he wanted to file his notice of appeal,
which would divest the court of jurisdiction, or
proceed with a motion to alter or amend the
judgment under Federal Rule of Civil Procedure
60(b). Rutledge asked the court if he could
appeal after the consideration of his Rule 60(b)
motion. The government told the court that it did
not believe that Rule 60(b) motions tolled the
time for filing a notice of appeal. The court
stated that a miscarriage of justice would result
if Rutledge were not permitted to file his Rule
60(b) motion and appeal after the ruling on such
motion. Rutledge agreed to proceed with his Rule
60(b) motion and asked the court to withdraw his
notice of appeal. The court then granted
Rutledge’s motion to proceed pro se. The court
also ruled that all of the motions to reconsider
had been withdrawn except for the one filed by
Rutledge on November 25, the day of the
conference. This November 25 motion included an
affidavit from Bolen stating that she would have
been willing to serve as an alibi witness on the
distribution count but had not been interviewed
by trial counsel.
The court denied Rutledge’s motion to reconsider
on January 26, 1999. Rutledge had claimed that
his trial counsel was ineffective for not
interviewing Bolen. The court found that this was
the first mention of Bolen and that it was too
late to raise this issue in a motion to
reconsider. The court rejected Rutledge’s
challenge to the court’s jurisdiction to
reinstate the vacated conspiracy conviction,
finding that Rutledge had not raised this
argument in his sec. 2255 motion/1 and that sec.
2255 provided statutory authority for the court’s
action.
Rutledge filed a notice of appeal and an
application for a certificate of appealability on
March 15, 1999. On March 23, the district court
issued to Rutledge a certificate of appealability
for the issue of whether reinstating the
conspiracy conviction was proper, but denied a
certificate for Rutledge’s various claims of
ineffective assistance of trial counsel.
II. Discussion

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Rutledge presents five issues in this appeal of
the denial of his sec. 2255 and Rule 60(b)
motions./2 The first, and only one for which he
was issued a certificate of appealability, is
whether the district court had jurisdiction to
reinstate the previously vacated conspiracy
conviction.
The second issue is whether the district court
should have conducted an evidentiary hearing
regarding Rutledge’s claim that his trial counsel
was ineffective for failing to interview Mummert
and Wright. The third question is did the
district court err in not treating Rutledge’s
September 20, 1998 letter as a motion to amend
his sec. 2255 petition. The fourth issue is
whether the district court abused its discretion
by denying the claims of ineffective assistance
of counsel argued in Rutledge’s Rule 60(b)
motion. The district court did not grant a
certificate of appealability for these three
challenges. Rutledge’s raising of these questions
is considered an implicit request for a
certificate of appealability from this court. See
Slack v. McDaniel, ___ U.S. ___, 120 S. Ct. 1595,
1603 (2000); Williams v. Parke, 133 F.3d 971, 975
(7th Cir. 1997). We will issue such a certificate
only if the petitioner makes a substantial
showing of the denial of a constitutional right.
28 U.S.C. sec. 2253(c)(2). Rutledge must show
either that reasonable jurists could debate
whether the challenges in his habeas petition
should been resolved differently or that his
petition adequately shows a sufficient chance of
the denial of a constitutional right that he
deserves encouragement to proceed further. See
Slack, 120 S. Ct. at 1603-04.
The fifth and final challenge, which Rutledge
raises for the first time on appeal, is whether
his sec. 2255 counsel was ineffective for failing
to interview and bring to the attention of the
court certain witnesses who supposedly would have
further supported Rutledge’s claim that his trial
counsel was ineffective with respect to the
distribution charge.
A. Statutory Jurisdiction for Reinstatement of a
Vacated Conviction
Rutledge argues that no statute provides a
district court with the power to reinstate a
vacated conviction. Rutledge claims that the
district court erred by rejecting this challenge
in both his sec. 2255 and Rule 60(b) motions. We
review de novo the district court’s legal
determination that it had jurisdiction to
reinstate a vacated conviction. See United States
v. Brisk, 171 F.3d 514, 519 (7th Cir. 1999).

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While Rutledge raises an interesting challenge
to the district court’s action, we conclude that
a district court does have statutory authority to
reinstate a vacated conviction./3 We begin with
the relevant language of sec. 2255:
If the court finds that the judgment was rendered
without jurisdiction, or that the sentence
imposed was not authorized by law or otherwise
open to collateral attack, or that there has been
such a denial or infringement of the
constitutional rights of the prisoner as to
render the judgment vulnerable to collateral
attack, the court shall vacate and set the
judgment aside and shall discharge the prisoner
or resentence him or grant a new trial or correct
the sentence as may appear appropriate.
(emphasis added). Admittedly, nothing in this
language directly and explicitly states that a
vacated conviction can be reinstated, but such a
statement is unnecessary. The terms "resentence"
and "correct the sentence as may appear
appropriate" are both grants of broad and
flexible power to the district court./4 See
United States v. Hillary, 106 F.3d 1170, 1171-72
(4th Cir. 1997). These terms encompass
reinstating a vacated conviction as part of the
process of correcting the sentence, if such an
act would be proper. Reinstating Rutledge’s
conspiracy conviction would be appropriate here
because that conviction does not suffer from any
procedural or substantive defect, but was vacated
only because it was an included offense of the
CCE conviction. In these circumstances, sec.
2255’s language granting the power to resentence
or correct the sentence as may appear appropriate
provides district courts with a jurisdictional
basis to reinstate the vacated conviction for the
included offense.
Our prior cases permitting district courts to
increase sentences for particular convictions
after a successful sec. 2255 motion support this
holding, though these decisions are not exactly
analogous since vacated convictions were not
involved. The word "sentence" in sec. 2255 refers
to the entire package of terms that the defendant
receives for his convictions. See United States
v. Walker, 118 F.3d 559, 561 (7th Cir. 1997);
United States v. Smith, 103 F.3d 531, 534 (7th
Cir. 1996). A defendant cannot have a legitimate
expectation in the finality of his or her
sentence when he or she uses a sec. 2255 motion
to challenge his or her convictions. See
Woodhouse v. United States, 109 F.3d 347, 348
(7th Cir. 1997). If a defendant successfully
challenges some of his or her convictions on a
sec. 2255 motion, the district court may adjust
the remainder of the package by resentencing the

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defendant on the remaining convictions, which
includes increasing the sentences on those
counts./5 See United States v. Binford, 108 F.3d
723, 728-29 (7th Cir. 1997); Smith, 103 F.3d at
534. At least in circumstances where a conviction
was vacated only because it is an included
offense of another conviction, this vacated
conviction should be considered part of the
sentencing package which the defendant has
challenged, and so subject to reinstatement if
the conviction in which it is included also is
vacated.
The Supreme Court’s opinion reversing our
judgment in Rutledge’s case is instructive on
whether a district court can reimpose a vacated
conviction. The government argued that both the
CCE and conspiracy convictions should stand
because this would prevent a defendant who
successfully challenges one of these from
escaping punishment. 517 U.S. at 305. In
rejecting this argument, the Court explained that
the lower courts had already developed methods to
resolve such problems. Id. at 305-06. In
particular, the Court favorably cited the opinion
in United States v. Silvers, 888 F. Supp. 1289,
1306-09 (D. Md. 1995), aff’d in relevant part, 90
F.3d 95 (4th Cir. 1996), where the district court
reinstated a previously vacated conspiracy
conviction after vacating and granting a new
trial on the defendant’s CCE conviction. The
Court’s passage might be considered dictum, but
it represents the Court’s considered view on an
issue related to its holding and should be
followed unless it conflicts with a holding of
the Court. See United States v. Bloom, 149 F.3d
649, 653 (7th Cir. 1998). Thus, the Supreme Court
has validated the precise action of the district
court in the instant case. Rutledge correctly
points out that neither the Court’s opinion in
Rutledge nor the lower court opinion in Silvers
discuss the statutory basis for such action by
the district court. However, given the broad
language of sec. 2255, we will not say that the
district court lacked jurisdiction for an act
explicitly approved by the Supreme Court.
Besides this language in the higher court’s
Rutledge opinion, our decision also has
substantial support in precedents that have
addressed the question of whether a district
court can reinstate a vacated conviction. The
majority of courts to consider this issue have
found that districts courts do have such power.
See Silvers, 90 F.3d at 101; United States v.
Maddox, 944 F.2d 1223, 1233 (6th Cir. 1991);
United States v. Niver, 689 F.2d 520, 531 (5th
Cir. 1982); see also United States v. West, 201
F.3d 1312 (11th Cir. 2000) (vacating defendant’s
CCE conviction and remanding to district court

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with instruction to reinstate previously vacated
conspiracy conviction); United States v. Butera,
677 F.2d 1376, 1386 (11th Cir. 1982) (stating
that a vacated conviction can be reinstated
without specifying which court can do so); United
States v. Hooper, 432 F.2d 604 n.8 (D.C. Cir.
1970) (same). Again, while these cases do not
explicitly address the question of statutory
jurisdiction, we are unwilling to conclude that
all of these opinions are wrong given that the
reinstatement of a previously vacated conviction
fits within the language of sec. 2255. We have
carefully and thoughtfully considered the
statement that district courts cannot reinstate
convictions made in United States v. Medina, 940
F.2d 1247, 1253 (9th Cir. 1991), but find it
unpersuasive in light of the Supreme Court’s
opinion in Rutledge and our own analysis.
One last concern remains regarding the
reinstatement of Rutledge’s conspiracy
conviction. Rutledge asks that we remand his case
to the district court so that he may challenge
his conspiracy conviction, which he had not done
previously because the conviction had been
vacated. A court should notify the defendant that
it is contemplating reinstating a vacated
conviction before it renders its decision in
order to give the defendant the opportunity to
challenge any reinstated convictions. However, in
the facts of this case Rutledge was given just
such an opportunity. The district court raised
the question of reinstating Rutledge’s conspiracy
conviction in a December 4, 1997 telephone
conference. From this point forward, Rutledge was
on notice that the reinstatement of his Count II
conviction was a distinct possibility. Rutledge
had almost ten months between this conference and
the lower court’s decision, during which
Rutledge’s counsel filed a supplemental
memorandum in support of the sec. 2255 petition,
to challenge the propriety of his conspiracy
conviction. Furthermore, after the court’s
decision actually reinstating the Count II
conviction, Rutledge filed a Rule 60(b) motion,
but again did not question the substance of this
conviction. Thus, Rutledge has forfeited any
objection to his reinstated conspiracy
conviction.
B. Ineffective Assistance of Trial Counsel
Rutledge argues that his trial counsel was
ineffective because he did not interview Mummert
and Wright before trial and so did not try to
establish an alibi defense to the distribution
count based on their statements. Rutledge further
argues that he was prejudiced by trial counsel’s
supposed deficiencies because the government’s
evidence on the distribution charge was weak,

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consisting of only Wright’s testimony.
To succeed on an ineffective assistance of
counsel claim, the defendant must first show that
counsel’s performance fell below an objective
standard of reasonableness and secondly
demonstrate that this deficient performance so
prejudiced the defendant that he or she was
deprived of a fair trial. See Strickland v.
Washington, 466 U.S. 668, 687-88 (1984); United
States v. Trevino, 60 F.3d 333, 338 (7th Cir.
1995). Regarding the first prong, the defendant
must base his or her claim on specific acts or
omissions by his or her counsel. Strickland, 466
U.S. at 690; Trevino, 60 F.3d at 338. The court,
beginning with a strong presumption in favor of
adequate assistance, then determines whether
these acts or omissions fall outside the wide
range of professionally competent assistance.
Strickland, 466 U.S. at 690; Trevino, 60 F.3d at
338. An attorney’s performance is satisfactory
only if he or she makes a reasonable
investigation of the principal facts of the
defendant’s case or makes a reasonable decision
that particular investigations are unnecessary,
Strickland, 466 U.S. at 691, though an attorney
need not investigate every evidentiary
possibility before choosing a defense, see
Sullivan v. Fairman, 819 F.2d 1382, 1392 (7th
Cir. 1987). Whether a decision to forego more
investigation is reasonable is analyzed from the
perspective of counsel at the time of the
decision and in light of all the circumstances.
See Kimmelman v. Morrison, 477 U.S. 365, 384
(1986); Williams v. Washington, 59 F.3d 673, 680
(7th Cir. 1995). The failure to interview
witnesses can constitute deficient performance in
particular cases. See, e.g., Montgomery v.
Petersen, 846 F.2d 407, 414 (7th Cir. 1988). To
satisfy the second requirement of an ineffective
assistance of counsel claim, the defendant must
show that counsel’s deficient performance
rendered the jury’s verdict unreliable or the
proceeding fundamentally unfair, depriving the
defendant of some procedural or substantive
right. See Lockhart v. Fretwell, 506 U.S. 364,
372 (1993).
Rutledge’s trial counsel made a reasonable
decision not to interview Mummert./6 Mummert, a
prosecution witness, had extensive personal
knowledge of Rutledge’s drug enterprise. At
trial, among other evidence, Mummert testified
that she saw Rutledge give cocaine to other
defendants to sell with instructions on what the
price should be, that he possessed various
paraphernalia for measuring cocaine, that he
often had large amounts of cash, and that he
owned various firearms. Her testimony provided
the government with strong evidence on the CCE,

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conspiracy, and firearms counts, which is to say
every charge against Rutledge except the
distribution count. We assume that Rutledge’s
trial counsel had some idea of what evidence she
would provide against Rutledge. Knowing this,
counsel made a reasonable strategic choice to
attack Mummert’s credibility, and he did so in
his cross-examination by pointing out numerous
inconsistencies in her statements and
contradictions between her trial and grand jury
testimony. Counsel planned to lessen the impact
of Mummert’s evidence on the CCE, conspiracy, and
firearms charges by trying to demonstrate to the
jury that Mummert was an unreliable witness whose
entire testimony was fabricated. This attack on
Mummert’s credibility, which counsel reasonably
decided was necessary to counter Mummert’s
testimony supporting every charge except
distribution, would have also affected any
testimony favorable to Rutledge that she might
have provided. Thus, interviewing her in an
attempt to get exculpatory information for the
distribution charge would have been fruitless,
and counsel’s decision not to do so is
objectively reasonable. See Strickland, 466 U.S.
at 691. Cases where an attorney has been held to
be ineffective for failing to interview witnesses
are distinguishable since they all involve
potential witnesses who were not called at all
and whose probable testimony appeared to be
wholly favorable to the defendant. See, e.g.,
Williams, 59 F.3d at 676, 681-82; Montgomery, 846
F.2d at 409, 413-14.
We also reject Rutledge’s somewhat puzzling
claim that his trial counsel provided ineffective
assistance by not interviewing Wright in an
attempt to establish an alibi defense to the
distribution charge. Like Mummert, Wright was a
prosecution witness. Among his other testimony,
Wright stated at trial that he purchased cocaine
from Rutledge in late January, 1989. To put the
point simply, Wright was unlikely to provide
Rutledge with an alibi for the distribution
charge given that Wright’s statements were the
primary evidence against Rutledge on this charge.
Again assuming that Rutledge’s trial counsel had
some idea of Wright’s testimony, counsel could
have reasonably concluded that interviewing
Wright would have been pointless. Unless counsel
could have made Wright reverse the testimony that
he was prepared to give, Wright was not going to
establish an alibi for Rutledge. Counsel’s
attempts to discredit Wright and show that he had
testified as part of a plea bargain were
reasonable strategic choices, and constitute
effective assistance of counsel. Rutledge has not
made a substantial showing that he has been
denied a constitutional right because his trial
counsel was ineffective for failing to interview

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Wright or Mummert, and so we will not grant a
certificate of appealability on Rutledge’s
claim./7
C. Rutledge’s Letter as an Amendment to his sec.
2255 Motion
Rutledge claims that his September 20, 1998
letter, which described the testimony of
witnesses, including Bolen, that neither his
trial nor sec. 2255 counsel had interviewed, was
sent before the district court’s decision and
should be treated as an amendment to his habeas
petition. Rutledge claims that the "mailbox rule"
applies, and so the letter should have been
considered received by the court whenever he
handed it to the prison authorities, rather than
October 2, 1998, after the district court’s
ruling, which is the date the letter was docketed
by the clerk. Rutledge asks that we remand the
case so that the lower court can determine when
the letter was given to prison authorities and
address Rutledge’s additional claims.
Until a final ruling has been issued, a
district court must consider a petitioner’s
request to amend his sec. 2255 motion, though the
court need not grant the requested amendments.
See Johnson v. United States, 196 F.3d 802, 805-
06 (7th Cir. 1999). A district court can refuse
to let the defendant amend the petition for
reasons such as delay or because a defendant
represented by counsel is not filing the proposed
amendments through his or her attorney. Id. at
805. The district court in this case did not
consider amending the sec. 2255 motion based on
Rutledge’s letter. However, we find that it was
not required to do so. Rutledge’s arguments
suffer from two defects: the mailbox rule does
not apply in his case, and his letter was not a
motion to amend.
Houston v. Lack, 487 U.S. 266 (1988)
establishes that certain notices or motions of
pro se prisoners should be considered filed when
these are given to prison authorities, rather
than when received by the court; this is known as
the "mailbox rule." Houston applied the rule to
a notice of appeal, id. at 276, and it has been
extended to cover various other filings, see
Jones v. Bertrand, 171 F.3d 499, 501-02 (7th Cir.
1999). We have not extended the rule to motions
to amend, and we need not reach that issue
because the mailbox rule does not apply for
another reason: Rutledge was not pro se when he
mailed the letter. In adopting the mailbox rule,
the opinion in Houston emphasizes the special
difficulties faced by pro se prisoners. See 487
U.S. at 270 ("The situation of prisoners seeking
to appeal without the aid of counsel is

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unique."), 271 ("Pro se prisoners cannot take any
of these precautions [to ensure timely filing];
nor, by definition, do they have lawyers who can
take these precautions for them."). The opinion
also repeatedly stresses the possible unfairness
of forcing prisoners to rely on prison
authorities to deliver their legal papers in a
timely manner. Id. at 271, 273-76. However, a
prisoner represented by counsel can have that
attorney file whatever motions or notices the
prisoner desires, and so does not need to rely on
prison authorities. Therefore, we hold that the
mailbox rule does not apply to prisoners who are
represented by counsel. See Nichols v. Bowersox,
172 F.3d 1068, 1074 (8th Cir. 1999) ("The prison
mailbox rule traditionally and appropriately
applies only to pro se inmates who may have no
means to file legal documents except through the
prison mail system.").
Because Rutledge’s letter was docketed by the
clerk on October 2, the court probably received
the letter either that day or the day before.
Even if Rutledge’s mailing reached the courthouse
on October 1, this was several days after the
district court’s ruling. Rutledge’s habeas
counsel was still representing him at this time,
and so the mailbox rule does not apply.
Therefore, Rutledge’s letter was not timely
filed, and the district court was under no duty
to consider whether this correspondence amended
his sec. 2255 motion.
Rutledge’s claim also fails for an independent
reason: the letter in question is only a letter,
and not a motion to amend. According to its own
language, this correspondence was sent as an
attempt to shame Rutledge’s appointed sec. 2255
counsel into complying with Rutledge’s requests
and apparently to create a record to claim that
the sec. 2255 counsel was ineffective. The letter
is not titled as a motion, and nowhere does it
state that Rutledge was seeking to amend his sec.
2255 motion. Furthermore, the letter was copied
not only to the district court judge but also to
the chief judge of this circuit, which would be
improper if this correspondence were intended as
an amendment. The rule that pro se pleadings are
to be interpreted liberally, see McNeil v. United
States, 508 U.S. 106, 113 (1993), cannot help
Rutledge since he was represented by counsel at
the time he sent the letter. Further, Rutledge is
a veteran of pro se litigation, having filed (so
far) roughly fourteen pleadings in this case
without the aid of counsel. Rutledge knows how to
file a proper motion, and he should have done so
if he intended to amend his sec. 2255 petition.
For these two reasons, we find that Rutledge
has not made a substantial showing that he was

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deprived of a constitutional right when the
district court did not consider his untimely
letter as a motion to amend, and thus do not
issue a certificate of appealability for this
question.
D. Rule 60(b) Motion
Rutledge argues that the district court abused
its discretion by finding that Rutledge should
have raised the claim that trial counsel was
ineffective for failing to interview Bolen
earlier and so denying Rutledge’s Rule 60(b)
motion. Rutledge initially mentioned Bolen in his
September 20, 1998 letter, but we have already
determined that this mailing did not operate as
a proposed amendment to his sec. 2255 motion.
Therefore, Rutledge first raised this claim
involving Bolen in his Rule 60(b) motion.
Rule 60(b) relief is an extraordinary remedy
granted only in exceptional circumstances. See
Dickerson v. Board of Educ. of Ford Heights,
Ill., 32 F.3d 1114, 1116 (7th Cir. 1994). Rule
60(b) motions cannot be used to present evidence
that with due diligence could have been
introduced before judgment on the motion from
which the party is seeking relief. See Caisse
Nationale de Credit Agricole v. CBI Industries,
Inc., 90 F.3d 1264, 1269 (7th Cir. 1996).
Rutledge submitted an affidavit from Bolen with
his Rule 60(b) motion. Bolen claims that she is
a friend of Rutledge and has known him for thirty
years. She states she was with Rutledge at a bar
on January 27, 1989, and so he could not have
sold drugs to Wright on that day. Presently,
Bolen lives at the same address as she did in
1989 and claims that her whereabouts were
generally known. Given her longstanding
friendship with Rutledge and the ease with which
she asserts she could have been found, Rutledge
should have raised his ineffective assistance
claim based on his trial counsel’s failure to use
her as an alibi witness in his sec. 2255 motion.
Thus, Rutledge has not made a substantial showing
that his constitutional rights were denied.
E. Ineffective Assistance of sec. 2255 Counsel
Rutledge’s final challenge is that his sec.
2255 counsel was ineffective for failing to
present an argument to the district court that
trial counsel was ineffective because he did not
interview the alibi witnesses mentioned in
Rutledge’s September 20, 1998 letter. We describe
above the basic legal standards for an
ineffective assistance of counsel claim; however,
a few additional points are relevant here.
Because this court does not take any new
evidence, the defendant’s attempt to show

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ineffective assistance of sec. 2255 counsel is
limited to the record developed below. See United
States v. Penass, 997 F.2d 1227, 1229 (7th Cir.
1993). Isolated errors do not constitute
ineffective assistance if the attorney’s work
product taken as a whole demonstrates competence.
See Dahler v. United States, 143 F.3d 1084, 1086
(7th Cir. 1998). "[T]he Constitution calls for a
professionally competent defense, not for the
best possible defense." Holman v. Gilmore, 126
F.3d 876, 883 (7th Cir. 1997).
Even if perhaps sec. 2255 counsel should have
attempted to bring additional claims of
ineffective assistance based on additional
potential alibi witnesses, we find that sec. 2255
counsel was not constitutionally ineffective. The
distribution charge was one of only six
convictions that Rutledge and his counsel
challenged. Section 2255 counsel filed a
comprehensive supplemental memorandum providing
legal support for all of the claims in Rutledge’s
petition. He competently briefed and orally
argued at hearings a number of open questions,
such as whether Rutledge’s CCE conviction and
felon in possession counts should be vacated. He
vigorously presented Rutledge’s claim that the
distribution count should be vacated because
trial counsel failed to interview Mummert.
Finally, sec. 2255 counsel achieved a significant
degree of success on behalf of Rutledge. Three of
Rutledge’s convictions were vacated, and his
sentence for another conviction was reduced.
We also note that sec. 2255 counsel’s possible
failure in not bringing the additional potential
alibi witnesses named in Rutledge’s September 20,
1998 letter to the attention of the district
court may primarily be the fault of Rutledge.
Rutledge’s original motion does not mention any
alibi witnesses besides Mummert and Wright, nor
did Rutledge ever attempt to amend his motion to
bolster his ineffective assistance claim by
adding such witnesses. Rutledge might not have
told his sec. 2255 counsel of these witnesses
until immediately before the district court’s
decision. Thus, not only was sec. 2255 counsel’s
overall performance competent for constitutional
purposes, he may not have known of these
additional witnesses until any attempt to amend
the motion would have been too late to aid
Rutledge.
III. Conclusion
Section 2255 provides the statutory jurisdiction
for the district court to reinstate Rutledge’s
previously vacated conspiracy conviction.
Rutledge’s various claims based on ineffective
assistance of counsel are without merit and do

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not make a substantial showing that he was denied
any constitutional rights. Therefore, the
judgment of the district court is
Affirmed.
/1 In the supplemental memorandum in support of the
sec. 2255 motion filed by his appointed attorney,
Rutledge stated that he was unable to locate any
statute authorizing the court to reinstate a
vacated conviction, but did not develop this
argument.
/2 Rutledge’s appeal of the denial of his sec. 2255
motion normally would be untimely. The district
court entered its judgment on October 16, 1998.
Rutledge’s counsel had already filed a motion to
alter or amend the judgment on October 5, which
we characterize as a Fed.R.Civ.P. 59(e) motion
because it was filed within ten days of the entry
of judgment. See United States v. 47 West 644
Route 38, Maple Park, Ill., 190 F.3d 781, 783
(7th Cir. 1999). The time for appeal is tolled
during the pendency of a Fed.R.Civ.P. 59(e)
motion. Fed.R.App.P. 4(a)(4)(A)(iv). However,
Rutledge withdrew this motion on November 25, at
which point the only outstanding motion was one
under Fed.R.Civ.P. 60(b) which was filed on
November 25. As the government pointed out to the
court, the time to file a notice of appeal is not
tolled during the consideration of a Fed.R.Civ.P.
60(b) motion. See Mares v. Busby, 34 F.3d 533,
535 (7th Cir. 1994). Rutledge should have filed
his notice of appeal with the district court no
more than sixty days after November 25.
Fed.R.App.P 4(a)(1)(B). Thus, his March 16, 1999
notice of appeal would be untimely under usual
circumstances and so we would consider only his
appeal from the denial of his Fed.R.Civ.P. 60(b)
motion and not from his sec. 2255 petition.
However, the district court explicitly assured
Rutledge that the court would first consider his
Fed.R.Civ.P. 60(b) motion and that after the
ruling on that motion Rutledge would have the
opportunity to appeal. Also, Rutledge had sent
the court a notice of appeal which was received
on or before November 23, which would have been
timely, but withdrew it after the court told him
that he could appeal after the court ruled on the
Fed.R.Civ.P. 60(b) motion. Because of the lower
court’s affirmative assurances that Rutledge
would be given an opportunity to appeal after the
court considered his Fed.R.Civ.P. 60(b) motion,
the doctrine of unique circumstances applies, and
Rutledge has not forfeited his sec. 2255 appeal.
See Hope v. United States, 43 F.3d 1140, 1143
(7th Cir. 1994). The date when the clock for the
notice of appeal began running was January 26,
1999, when the court denied Rutledge’s
Fed.R.Civ.P. 60(b) motion, and so his March 16

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notice will be considered timely and we will
address the issues he raises regarding his sec.
2255 motion. However, our consideration of
Rutledge’s sec. 2255 appeal is not an endorsement
of the district court’s extension of the time for
filing a notice of appeal.
/3 Rutledge does not raise any constitutional
challenge regarding this issue, presumably
because the Double Jeopardy Clause does not bar
reinstatement of a conviction on a charge for
which a jury returned a guilty verdict. See
United States v. Wilson, 420 U.S. 332, 344-45
(1975).
/4 Furthermore, habeas corpus is an equitable
remedy, and the Supreme Court has made certain
deviations from the language of sec. 2255 to
apply principles of equity to federal habeas
petitions. See Schlup v. Delo, 513 U.S. 298, 319-
20 (1995). However, we need not stray from the
language of the statute to resolve Rutledge’s
challenge to the district court’s jurisdiction.
/5 A defendant may have a legitimate expectation
that his or her total sentence will not be
increased after a successful habeas petition,
such that he or she probably cannot be
resentenced to a total term longer than the
original sentence. See United States v. Bentley,
850 F.2d 327, 328 (7th Cir. 1988). Because of the
distribution and armed drug trafficker
convictions, Rutledge’s total sentence prior to
his sec. 2255 motion was life imprisonment
without the possibility of parole plus fifteen
years. After his motion, his sentence was only
life imprisonment without the possibility of
parole based on his conspiracy conviction. Thus,
no legitimate expectation of Rutledge in the
finality of his sentence was disturbed when his
conspiracy conviction was reinstated.
/6 The government argues that the trial transcript
shows that Rutledge’s trial counsel did in fact
interview Mummert. The record shows that Mummert
met with Rutledge’s attorney to discuss paying
Rutledge’s legal bills. At trial, Rutledge’s
counsel asked Mummert whether she had told him
that two of Rutledge’s co-defendants were setting
up Rutledge, and she testified that she could not
recall any such statement. The district court
sustained the prosecution’s objection to any
further questioning about this conversation.
While the question of Rutledge’s counsel does
cast some doubt on whether he failed to interview
Mummert regarding the substance of Rutledge’s
case, the record does not provide any evidence
that he questioned Mummert regarding Rutledge’s
whereabouts on January 27, 1989. We give Rutledge
the benefit of the doubt and will assume that

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Rutledge’s counsel did not interview Mummert in
an attempt to get information that would
exculpate Rutledge on the distribution charge.
/7 Rutledge’s briefs to this court primarily provide
discussion relevant only to the prejudice prong
of the Strickland test. Since we find that trial
counsel’s representation of Rutledge satisfies an
objective standard of reasonableness, we do not
reach these arguments.

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