Robin L. Peoples v. United States of America

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-2774
R OBIN L. P EOPLES ,
Petitioner-Appellant,
v.
U NITED S TATES OF A MERICA ,
Respondent-Appellee.
____________
Appeal from the United States District Court for the
Northern District of Indiana, South Bend Division.
No. 3:02-CV-0704 RM—Robert L. Miller, Jr., Chief Judge.
____________
A RGUED S EPTEMBER 21, 2004—D ECIDED A PRIL 6, 2005
____________
Before E ASTERBROOK , R IPPLE , and W ILLIAMS , Circuit
Judges.
E ASTERBROOK , Circuit Judge. Robin Peoples is here for
the third time contesting his convictions for bank robbery
and associated offenses. Each time he has argued that he
received ineffective assistance of counsel. Twice we resolved
this claim on the merits; that is enough (if not once more
than enough), and we decline to revisit the subject.
On his direct appeal Peoples’s appellate lawyer challenged
the competence and dedication of his trial lawyer. That was
a risky tactic, given the circuit’s rule, see United States v.

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2 No. 03-2774
Taglia, 922 F.2d 413, 418 (7th Cir. 1991), that such a
contention normally may be raised only once, and the fact
that an ineffective-assistance claim is unlikely to succeed
without additional evidence showing why trial counsel had
acted as he did, and what the adverse consequences of a
mistake would have been. But it may have been justified in
this case, because by the time of the appeal the district judge
had held a hearing on Peoples’s request for a new trial, and
evidence about his original attorney’s conduct had entered
the record. (He had a different attorney on appeal.) So we
addressed the subject on the merits, though the decision was
not to Peoples’s liking. United States v. Peoples, 2001
U.S. App. L EXIS 7625 (7th Cir. Apr. 11, 2001) (unpublished
order).
Meanwhile the new-trial request (Peoples had filed three
motions) was still brewing in the district court. The district
judge should have treated these as collateral attacks under
28 U.S.C. §2255 but did not warn Peoples that his motions
would use up the only collateral review allowed as of right,
and as a result they did not count as an initial round of col-
lateral review. See Castro v. United States, 540 U.S. 375
(2003). The district judge denied these motions on the merits,
and we affirmed, addressing the ineffective-assistance claim
again, and with the same outcome. United States v. Peoples,
2002 U.S. App. LEXIS 14401 (7th Cir. July 16, 2002) (unpub-
lished order).
His opportunities for direct review used up, Peoples filed
a motion that was acknowledged to be under §2255. Once
again he complained about the legal assistance he had re-
ceived. The district judge balked at evaluating the protest.
He pointed out that he had done so once already, and we had
done so twice. Circuit law is clear, the judge remarked, that
a “defendant who complains on direct appeal about the
quality of his lawyer can’t try again on collateral attack
unless there has been an intervening change of law.” Ryan
v. United States, 214 F.3d 877, 879 (7th Cir. 2000). Discov-

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No. 03-2774 3
ery of previously withheld evidence also might reopen the
subject, see Taglia, 922 F.2d at 418, but Peoples did not
contend either that hidden evidence had at last surfaced or
that the law governing his contentions had morphed since
our second decision. All he did was add to the list of failings
that he attributed to his former lawyers, but the district
judge held that this is exactly the sort of thing that the law
of the case cuts off: it blocks new theories as well as old
ones. See, e.g., Ryan, 214 F.3d at 878-79; People Who Care
v. Rockford Board of Education, 171 F.3d 1083, 1088 (7th
Cir. 1999); cf. Barrow v. Falck, 11 F.3d 729 (7th Cir. 1993).
The twin goals of this doctrine are to ensure that the parties
marshal all of their facts and arguments so that a dispute
may be resolved in one pass, and to conserve judicial re-
sources. Treating new arguments as grounds for a second
decision would contradict both rationales and in practical
effect abandon the doctrine.
On this third appeal, and with the assistance of a third
legal team, that is exactly what Peoples asks us to do. He
contends that we should abrogate the doctrine of law of the
case for all collateral proceedings and allow defendants freely
to raise the same issue twice, once on direct appeal and
again on collateral review, even if the law is unchanged and
no new facts have come to light. He relies principally on two
decisions: Massaro v. United States, 538 U.S. 500 (2003),
and United States v. Galloway, 56 F.3d 1239 (10th Cir. 1995)
(en banc). Galloway is incompatible with this circuit’s law
(and with the Supreme Court’s as well), and Massaro is
irrelevant. But we begin with first principles.
Taglia did not invent the rule that a person who has
raised an issue, and had it resolved by a federal court, can-
not start from scratch on collateral review and ask the ju-
diciary to proceed as if the first resolution had not occurred.
This is a longstanding rule of federal practice. See, e.g.,
Himely v. Ross, 9 U.S. (5 Cranch) 313 (1809); Roberts v.
Cooper, 61 U.S. (20 How.) 467, 481 (1858); Messenger v.

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4 No. 03-2774
Anderson, 225 U.S. 436, 444 (1912). True enough, issue pre-
clusion and claim preclusion (collateral estoppel and
res judicata) do not apply on collateral review; if they did,
there would be no collateral review. See Salinger v. Loisel,
265 U.S. 224 (1924); Wong Doo v. United States, 265 U.S. 239
(1924). But federal courts employ the more flexible doctrine
of law of the case even when rules of preclusion do not gov-
ern. See Christianson v. Colt Industries Operating Corp., 486
U.S. 800, 815-18 (1988). This is true in collateral proceed-
ings as well as in normal civil litigation.
Sanders v. United States, 373 U.S. 1 (1963), restated
these common-law norms, which have been modified by the
Antiterrorism and Effective Death Penalty Act for succes-
sive collateral reviews but left in place for the initial round.
(Although Sanders dealt with successive rounds of collateral
proceedings, the Court has held that its approach applies
equally when the same issue is raised on direct appeal and
again on an initial round of collateral review. See Davis v.
United States, 417 U.S. 333, 342 (1974).) The Court held
in Sanders that an initial federal determination controls
in subsequent rounds of review if “(1) the same ground
presented in the subsequent application was determined
adversely to the applicant on the prior application, (2) the
prior determination was on the merits, and (3) the ends of
justice would not be served by reaching the merits of the
subsequent application.” 373 U.S. at 15. What Davis, Taglia
and other decisions, such as Ryan and United States v.
Mazak, 789 F.2d 580 (7th Cir. 1986), add to Sanders is that
the “ends of justice” do support relitigation when the sub-
stantive law has changed or when evidence that could not
have been discovered earlier despite diligent inquiries at
last comes to light. (The AEDPA codifies a similar standard
for relitigation. See 28 U.S.C. §2244(b)(2).) See also Dobbs
v. Zant, 506 U.S. 357 (1993) (suggesting that the undevel-
oped-record exception to the common-law doctrine may be
limited to capital cases).

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No. 03-2774 5
Peoples presented ineffective-assistance arguments in his
two prior appeals. That ground was resolved adversely to
him on the merits, twice. Although Peoples now wants to
present new instances of supposed shortcomings, ineffective
assistance of counsel is a single ground for relief no matter
how many failings the lawyer may have displayed. Coun-
sel’s work must be assessed as a whole; it is the overall
deficient performance, rather than a specific failing, that
constitutes the ground of relief. See Bell v. Cone, 535 U.S.
685, 697 (2002); Strickland v. Washington, 466 U.S. 668,
690 (1984); Holman v. Gilmore, 126 F.3d 876, 881-84 (7th
Cir. 1997).
That point was made with more generality in Sanders:
“By ‘ground’ we mean simply a sufficient legal basis for
granting the relief sought by the applicant. For example,
the contention that an involuntary confession was admitted
in evidence against him is a distinct ground for federal
collateral relief. But a claim of involuntary confession pre-
dicated on alleged psychological coercion does not raise a
different ‘ground’ than does one predicated on alleged phy-
sical coercion. In other words, identical grounds may often
be proved by different factual allegations.” 373 U.S. at 16.
See also Brannigan v. United States, 249 F.3d 584, 587 (7th
Cir. 2001), for a similar definition of a “claim” in the law of
collateral review. Just as one who makes and loses a con-
tention that a confession is involuntary because of physical
coercion cannot start over by adding an allegation of
psychological coercion, one who makes and loses a conten-
tion that counsel was ineffective for four reasons cannot
start over by choosing four different (or four additional)
failings to emphasize.
Let us turn, then, to the question whether Massaro sup-
ports a different understanding. The Court held in Massaro
that a defendant never forfeits a claim of ineffective as-
sistance by waiting until collateral attack. It disapproved
our contrary decision in Guinan v. United States, 6 F.3d 468

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6 No. 03-2774
(7th Cir. 1993), which had held that a defendant who has
new counsel on appeal, and who does not contend that any
material outside the trial record is essential to evaluating
the claim, must raise it at once or forever lose the op-
portunity to do so. But Massaro does not hold that the same
ground of relief may be raised twice, once on direct appeal
and again on collateral review. The question was left open.
538 U.S. at 508-09. Since Massaro we have reiterated that
a defendant who chooses to make an ineffective-assistance
argument on direct appeal cannot present it again on col-
lateral review. See, e.g., Fuller v. United States, 398 F.3d
644, 649 (7th Cir. 2005); Harris v. United States, 366 F.3d
593, 595 (7th Cir. 2004). Cf. White v. United States, 371 F.3d
900 (7th Cir. 2004) (defendant who presents an argument
on direct appeal, and therefore cannot present it in an initial
collateral proceeding, cannot present the same ground on
second or successive collateral proceeding either).
Now if the reason why Peoples made an ineffective-
assistance claim on direct appeal was that our decision in
Guinan compelled him to do so before essential support
could be assembled and placed in the record, then Massaro
would be a good reason to allow him to press the argument
now. Peoples does not make such a contention, however.
Guinan itself, and successors such as Duarte v. United States,
81 F.3d 75 (7th Cir. 1996), allowed ineffective-assistance
claims to be postponed when delay was needed to assemble
evidence. Peoples does not contend that Guinan compelled
him to present the argument prematurely; instead he was
chomping at the bit to get this issue before us, which is why
he made three motions for a new trial and filed a second
appeal. Nothing in Guinan required that procedure. The
earlier presentations were by choice rather than under
compulsion, so Massaro does not open a third window of
opportunity.
Galloway shows that the tenth circuit sees this issue
differently. It did so because the judges thought it too

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No. 03-2774 7
labor-intensive to determine whether the initial decision is
conclusive, when the defendant always can come up with
reasons—newly discovered evidence, supposed changes of
law, protests about the wisdom of appellate counsel’s selec-
tion of issues—to avoid the effect of the initial decision.
Instead of stewing about procedural doctrines, the tenth
circuit concluded, judges should tackle the merits directly.
Galloway did not attempt to reconcile this approach with
Davis and Sanders, which the decision does not cite, and
did not consider how permitting relitigation affects incen-
tives in the initial appeal. When a court decides not to
enforce rules that limit relitigation, it not only reduces the
litigants’ incentives to get things right the first time but
ensures that judges will encounter the same claim repeat-
edly. Although it may be extra work to enforce rules against
relitigation in a given case, doing so has valuable effects for
many future cases in which litigation will be conducted
more expeditiously and with better information. Galloway
therefore does not persuade us to abandon the doctrine of
law of the case in federal collateral review under §2255. The
tenth circuit stands alone on this subject.
This is not to say that Galloway misunderstood the extent
of legal ingenuity. In the district court Peoples insisted that
his prior appellate lawyer had furnished ineffective assis-
tance by contending that his trial lawyer furnished ineffec-
tive assistance. The idea is that, if representation on direct
appeal was indeed constitutionally deficient, then Peoples
would be entitled to present his claims anew with the
assistance of competent lawyers. This line of argument
overlooks the fact that on his second direct appeal Peoples
dismissed his lawyers and chose to represent himself. One
who exercises the right of self-representation cannot con-
tend that he received ineffective assistance of counsel.
Faretta v. California, 422 U.S. 806, 834 n.46 (1975). On that
second appeal Peoples presented, and we resolved on the
merits, an ineffective-assistance claim. On this third appeal

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8 No. 03-2774
Peoples has another team of lawyers, and they have
dropped any challenge to the adequacy of prior appellate
counsel. The only argument is that Peoples received inef-
fective assistance at trial. That argument has been consid-
ered and rejected before; it is no longer open.
A FFIRMED
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—4-6-05

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