William P. Ellzey v. United States of America

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-3633
W ILLIAM P. E LLZEY ,
Petitioner-Appellant,
v.
U NITED S TATES OF A MERICA ,
Respondent-Appellee.
____________
Appeal from the United States District Court
for the Central District of Illinois.
No. 00-2124 (97-20034)—Michael P. McCuskey, Judge.
____________
S UBMITTED J ANUARY 31, 2003—D ECIDED M ARCH 31, 2003
____________
Before E ASTERBROOK , E VANS , and W ILLIAMS , Circuit
Judges.
E ASTERBROOK , Circuit Judge. To appeal from the rejec-
tion of his collateral attack under 28 U.S.C. §2255, William
Ellzey needs a certificate of appealability. One potential
problem is timeliness: we affirmed his conviction on May
10, 1999, in an unpublished order, and the petition Ellzey
filed on May 8, 2000, was a placeholder. It asserts that
his lawyer furnished ineffective assistance at sentencing
but supplies neither factual detail nor legal elaboration. In
the place provided for supporting facts and argument,
Ellzey wrote: “will be amended within thirty (30) days.”
Ellzey filed this skeletal document to satisfy the period
of limitations, with the plan of filing a real petition later—

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2 No. 02-3633
as he did on May 30, 2000. The prosecutor moved to
dismiss, but the district judge held that Ellzey’s original
document met the statutory time limit (see §2255 ¶6) and
could be amended afterward not only with details about
the sixth amendment theory but also to add new lines of
argument, such as a challenge based on Apprendi v. New
Jersey, 530 U.S. 466 (2000), which was not decided until
June 2000. Later the district judge denied the petition on
the merits. See 210 F. Supp. 2d 1046 (C.D. Ill. 2002). Be-
fore considering whether Ellzey is entitled to a certificate
of appealability, see 28 U.S.C. §2253(c), we must decide
which, if any, of his legal theories is timely.
One line from the motion to dismiss sums up the pros-
ecutor’s position: “Unfortunately for [Ellzey], there is no
provision under 28 U.S.C. §2255 for the filing of a ‘Notice
of Intent to File 2255 Petition’ ”. That’s right. Cases such
as Holman v. Gilmore, 126 F.3d 876, 879-80 (7th Cir.
1997), and Gosier v. Welborn, 175 F.3d 504, 506 (7th Cir.
1999), hold that only documents attacking the conviction
on the merits count as collateral attacks. Others—whether
motions for the appointment of counsel or requests to
save a place in line—do not suffice. The ninth circuit
handled this differently. See Calderon v. United States
District Court, 163 F.3d 530 (9th Cir. 1998) (en banc). The
technical question in Holman, Gosier, and Calderon was
whether an application for appointment of counsel should
be treated as a collateral attack for purposes of the rule
that proceedings commenced before April 24, 1996, are not
affected by amendments to §2254(d) made on that date. But
separating a collateral attack from other motions matters
to timeliness under the Antiterrorism and Effective Death
Penalty Act as well as to the question whether the AEDPA
governs. The Supreme Court now has sided with Holman
and Gosier, disapproving the resolution of Calderon. See
Woodford v. Garceau, No. 01-1862 (U.S. Mar. 25, 2003). A
“notice of intent to file” or its equivalent therefore is not a
collateral attack.

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No. 02-3633 3
Must a document containing neither facts nor reasons be
treated the same as a “notice of intent to file”? The prosecu-
tor assumes that the answer is yes but does not explain
why. We have held that any paper asking for the relief
provided by §2255 ¶1 is a motion under §2255, without
regard to its caption or other details. See, e.g., United States
v. Evans, 224 F.3d 670 (7th Cir. 2000); Romandine v.
United States, 206 F.3d 731 (7th Cir. 2000). These decisions
represent the flip side of Holman and Gosier, and their
approach too thus gains support from Woodford. Ellzey’s
filing was short on facts and argument, but it did assert
ineffective assistance of counsel at sentencing, a ground
within §2255 ¶1. It asked for relief, not just for more time
to file a petition (or for a lawyer to assist in preparing a
petition, the subject of Woodford).
True enough, Ellzey’s original filing did not comply with
Rule 2(b) of the Rules Governing Section 2255 Proceed-
ings for the United States District Courts:
The motion . . . shall specify all the grounds for
relief which are available to the movant and of
which he has or, by the exercise of reasonable
diligence, should have knowledge and shall set
forth in summary form the facts supporting each of
the grounds thus specified. It shall also state the
relief requested.
Rule 2(b) departs from Fed. R. Civ. P. 8 by requiring fact
pleading. Because Ellzey’s filing did not comply with Rule
2(b), it could have been returned by the district court
under Rule 2(d): “If a motion received by the clerk of a
district court does not substantially comply with the
requirements of rule 2 or rule 3, it may be returned to the
movant, if a judge of the court so directs, together with a
statement of the reason for its return.” A document re-
turned under Rule 2(d) would not satisfy the period of
limitations. Returned documents don’t count as petitions,

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4 No. 02-3633
which usually is good for prisoners because it means that
a new document that satisfies Rule 2(b) is not a second
or successive petition. See Benton v. Washington, 106 F.3d
162 (7th Cir. 1996). But by using the word “may” Rule 2(d)
gives district judges an option, not a duty. Ellzey’s docu-
ment was not returned. It stayed on the docket and was
amended. As amended, it satisfies Rule 2(b). An amended
petition is not treated as a new one; otherwise every
amendment would be a forbidden “second or successive”
petition, a position we have rejected. See Johnson v. United
States, 196 F.3d 802 (7th Cir. 1999). So the time require-
ment of §2255 ¶6 has been met. Still, a prisoner should
think twice before emulating Ellzey: if the district judge
returns the document under Rule 2(d), time may run out
before the prisoner can get a proper petition on file.
As it happens, Ellzey’s maneuver was unnecessary.
Ellzey, the prosecutor, and the district judge all thought
that, because Ellzey did not seek certiorari following the
affirmance of his conviction, he had exactly one year from
the date of our decision to commence collateral proceed-
ings. That is not correct. A prisoner has one year from “the
date on which the judgment of conviction becomes final”. 28
U.S.C. §2255 ¶6(1). We concluded in Gendron v. United
States, 154 F.3d 672 (7th Cir. 1998), that this means
one year from the date the appellate mandate issues. In
Clay v. United States, 123 S. Ct. 1072 (2003), the Supreme
Court held that finality occurs when the time to seek
certiorari expires (69 days after the mandate, for a litigant
who did not seek rehearing or an extension of time). Even
if the amendment of May 30 were treated as the “real”
collateral attack, that is timely under Gendron (our man-
date issued on June 1, 1999) and thus necessarily is timely
under Clay too (the time to seek certiorari expired on
August 8, 1999).
Still, this does not resolve the question whether all of
Ellzey’s legal theories are properly presented. The filing on

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No. 02-3633 5
May 8 said that counsel’s performance with respect to
sentencing was subpar; by May 30 the list of grievances had
expanded to the sufficiency of the indictment and the
wisdom of going to trial (both of which Ellzey wanted to
get at by complaining that his lawyer did not make the
right arguments and did not do more to induce him to
strike a plea bargain); by the time the district court de-
nied the petition, further amendments had elaborated on
these themes and added arguments based on Apprendi.
Although the district judge did not discuss the propriety
of these extensions, several courts of appeals have con-
cluded that a petition may not be amended, more than a
year after the conviction has been final, to add legal
theories unrelated to those placed at issue before the peri-
od of limitations expired. See United States v. Hicks, 283
F.3d 380, 388 (D.C. Cir. 2002); United States v. Thomas,
221 F.3d 430, 436 (3d Cir. 2000); United States v. Pittman,
209 F.3d 314 (4th Cir. 2000). If these decisions are right,
then the Apprendi-based arguments, at least, came too late.
Amendments to the pleadings are not covered by the
collateral-attack rules. Rule 12 of the collateral-attack
rules thus sends us to the Rules of Civil Procedure for
the closest match—to be precise, Fed. R. Civ. P. 15(c),
which speaks directly to the question whether an amend-
ment to the complaint relates back for the purpose of the
period of limitations. See Rodriguez v. United States, 286
F.3d 972, 981 (7th Cir. 2002). Elements of civil practice
sometimes must be modified to match special features of
collateral-attack practice, but statutes of limitations are
ubiquitous in ordinary civil litigation over torts and con-
tracts. Nothing in the nature of the limitations rules
enacted as part of the AEDPA requires courts to depart
from the way Rule 15(c) handles relation back for other
periods of limitations.
Rule 15(c) tells us that an amendment to the pleadings
relates back, for limitations purposes, when:

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6 No. 02-3633
(1) relation back is permitted by the law that
provides the statute of limitations applicable to
the action, or
(2) the claim or defense asserted in the amended
pleading arose out of the conduct, transaction, or
occurrence set forth or attempted to be set forth
in the original pleading, or
(3) the amendment changes the party or the nam-
ing of the party against whom a claim is asserted
if the foregoing provision (2) is satisfied and, with-
in the period provided by Rule 4(m) for service
of the summons and complaint, the party to be
brought in by amendment (A) has received such
notice of the institution of the action that the par-
ty will not be prejudiced in maintaining a defense
on the merits, and (B) knew or should have known
that, but for a mistake concerning the identity
of the proper party, the action would have been
brought against the party.
Subsections (1) and (3) are inapplicable, but subsection (2)
speaks to the issue. A new theory in a collateral attack
relates back when it “arose out of the conduct, transaction,
or occurrence set forth or attempted to be set forth in
the original pleading”. See Charles Alan Wright, Arthur
R. Miller & Mary Kay Kane, 6A Federal Practice &
Procedure §1497 (2d ed. 1990).
Courts that have declined to allow new theories to be
added by amendment effectively read “conduct, transac-
tion, or occurrence” to refer to single events in a criminal
proceeding—an objection to particular evidence, each
aspect of a calculation under the Sentencing Guidelines,
and so on. Each step of the trial, and each legal argument,
becomes a separate transaction or occurrence. Yet this
is not how the phrase “conduct, transaction, or occurrence”
is used in civil practice. That phrase sums up the “same

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No. 02-3633 7
transaction” approach to the law of preclusion (and thus
to compulsory joinder): all legal issues and claims for re-
lief arising out of a single transaction may (and often
must) be raised together, and Rule 15(c) specifies that
anything that would be barred, if not brought now, may
be added and litigated. Cf. Herrmann v. Cencom Cable
Associates, Inc., 999 F.2d 223 (7th Cir. 1993). We observed
in Brannigan v. United States, 249 F.3d 584, 587 (7th Cir.
2001), that some statutes governing collateral attacks
use the word “claim” in a way that departs from its usage
in the law of preclusion (res judicata), so that civil norms
cannot be transferred wholesale. Even so, we concluded
in Brannigan, all avenues of challenging a single sen-
tence are one “claim” for purposes of the AEDPA —that
facts rather than legal arguments define the “claim”. This
meant in Brannigan that the prisoner lost, because hav-
ing trotted out one legal theory to attack his sentence, he
could not try another given 28 U.S.C. §2244(b)(1): “A claim
presented in a second or successive habeas corpus ap-
plication . . . that was presented in a prior application
shall be dismissed.”
Here a broad definition of “claim” would help the pris-
oner by permitting ready amendment. But Rule 15(c) does
not refer to a “claim”; it uses the broader phrase “conduct,
transaction, or occurrence”—which is to say, the events
under analysis, not the legal themes deployed in the
analysis. A prisoner who comes up with ten different
ways to contest his sentence still is litigating about a
single transaction or occurrence (the supposedly unlawful
sentence), so an amendment necessarily relates back
under Rule 15(c)(2). This is pretty much the conclusion
we reached in Johnson, although that case concerned the
question whether an amendment (before decision in the
district court) kicks off a new collateral attack that re-
quires appellate approval. An amendment that is not
treated as a new challenge when counting multiple collat-

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8 No. 02-3633
eral attacks also is not a new challenge that must inde-
pendently satisfy the statute of limitations.
Decisions such as Hicks, Thomas, and Pittman do not
explain why Rule 15(c)(2) has one meaning for most
civil litigation, and a different meaning for a collateral
attack. They stress that the AEDPA is designed to expedite
resolution of collateral attacks, but this concern should
influence the exercise of discretion under Rule 15(a)—
which gives the district judge the right to disapprove
proposed amendments that would unduly prolong or
complicate the case—rather than lead to a special reading
of Rule 15(c)(2). We do not see how it would be possible
to follow Hicks, Thomas, and Pittman, or similar cases
elsewhere, without overruling our opinion in Johnson,
which held that amendments to the pleadings in col-
lateral attacks should be treated like amendments to
the pleadings in other civil suits, and that the articula-
tion of a new legal theory therefore is not a new claim.
Otherwise each amendment (even one within the one-
year period of limitations) would initiate a new collateral
attack—which is to say that the pleadings could not be
amended at all, for a successive collateral attack re-
quires prior appellate approval. Hicks, Thomas, and
Pittman do not attempt to harmonize their treatment
of Rule 15 with the need to avoid an approach that de-
fines all amendments as second or successive collateral
attacks. Indeed, the other circuits do not evince aware-
ness of the link between relation back and the definition
of a new collateral attack; none cites Johnson. So al-
though our opinion leaves in its wake a conflict among
the circuits about the application of Rule 15(c)(2) to col-
lateral attacks, this conflict was created by other
circuits’ inattention to Johnson rather than by our decision
today. (The decisions from other circuits, which read “claim”
to mean “legal theory,” also are hard to reconcile with
our decision in Brannigan.)

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No. 02-3633 9
Our understanding of Rule 15(c)(2) just permits and
does not compel a district judge to accept the amended
complaint; amendment still must be appropriate under
the criteria of Rule 15(a), which permit the district judge
to consider the goals of the AEDPA . Thus in Rodriguez
we held that a district judge did not abuse his discretion
in refusing to allow an amendment to the pleadings to
add a contention based on Apprendi. The amendment
was not proposed in Rodriguez until a few days after final
decision had been entered, and rejection of a post-deci-
sion amendment almost never can be an abuse of discre-
tion. (Indeed, once the time for appeal has run, any post-
decision amendment would be a second or successive
collateral attack that no district judge may authorize.
That’s the line drawn in Johnson.) In Ellzey’s case, by con-
trast, the proposed amendment came before final decision,
and the district judge exercised in Ellzey’s favor the
discretion granted by Rule 15(a). That, too, was not an
abuse of discretion, and as a result every legal theory in
Ellzey’s collateral attack satisfies §2255 ¶6.
Nonetheless, Ellzey is entitled to a certificate of ap-
pealability “only if [he] has made a substantial show-
ing of the denial of a constitutional right.” 28 U.S.C.
§2253(c)(2). See Miller-El v. Cockrell, 123 S. Ct. 1029
(2003). The lead argument in Ellzey’s application for a
certificate of appealability is that the district court erred
by failing to rule on the question whether Apprendi is
retroactive. Yet the judge did address this issue and,
following Curtis v. United States, 294 F.3d 841 (7th Cir.
2002), held that Apprendi is not retroactive. No court of
appeals has held otherwise, so this is not a substantial
constitutional issue (even though Ellzey’s sentence of
life imprisonment, which depends on increasing the stat-
utory maximum under 21 U.S.C. §841(b)(1)(A)(ii), other-
wise would be open to challenge). His remaining argu-
ments, all dealt with carefully by the district judge, are
insubstantial individually and collectively. The applica-

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10 No. 02-3633
tion for a certificate of appealability therefore is denied,
and the appeal is dismissed.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—3-31-03

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