In re: Childeric Maxy

In the
United States Court of Appeals
For the Seventh Circuit
No. 12-8003
IN RE:
CHILDERIC MAXY,
Petitioner.
On Petition for Permission to File.
SUBMITTED JANUARY 24, 2012—DECIDED MARCH 15, 2012
Before POSNER, ROVNER, and SYKES, Circuit Judges.
PER CURIAM. Childeric Maxy, a prisoner from
Wisconsin, is serving a 60-year sentence for attempted
murder, burglary-battery, and bail jumping. He received
a full round of collateral review by the federal courts,
Maxy v. Pollard, No. 05 C 479 (W.D. Wis. May 2, 2006)
(denying petition for a writ of habeas corpus), Maxy v.
Pollard, No. 06-2571 (7th Cir. Sept. 16, 2006) (denying a
certificate of appealability), and his first application
under 28 U.S.C. § 2244(b) for permission to mount a
second collateral attack was denied, Maxy v. Thurmer,
No. 09-1282 (7th Cir. Feb. 24, 2009).

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2 No. 12-8003
Now before the court are papers Maxy labels a
motion, in which he informs us that he intends to file
a second § 2244(b) application. Maxy explains that the
application will be untimely because the prison limits
his use of the copy machine, thereby delaying his ability
to comply with the rules of this circuit. Maxy asks us
to excuse the untimeliness of the forthcoming applica-
tion and to order the prison to allow him expanded use
of the copier. He does not, however, disclose the claims
he wishes to bring in a second petition for a writ of
habeas corpus or the documents he is unable to obtain.
When reviewing an application for authorization to
file a second or successive collateral attack, the timeli-
ness rules that govern the underlying collateral attack—
§ 2244(d) in the case of a petition for a writ of habeas
corpus and § 2255(e) for motions to vacate (the
corollary for federal prisoners)—generally apply. Johnson
v. Robert, 431 F.3d 992 (7th Cir. 2005). But Maxy’s
request to forgive the untimeliness of his forthcoming
application is premature. There is no possible way to
apply the timeliness rules when we don’t even know
that the papers will be late; Maxy may propose a claim
that relies on a new rule announced within one year of
the papers, see § 2244(d)(1)(C), or he may be able to
show a state-created impediment that was lifted within
one year of filing, see § 2244(d)(1)(B). If, on the other
hand, the papers are late and he requests equitable
tolling, we have no way of knowing if the as-yet undeter-
mined length of the delay will be reasonable given the
constraints he alleges. An analysis of timeliness must
wait for the papers to which the question applies.

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No. 12-8003 3
Maxy also requests an order directing prison officials
to allow him expanded use of a copy machine so that
he can file an application that complies with the rules of
this circuit court. Although the pleadings are vague
regarding the specific documents he is having trouble
producing, Circuit Rule 22.2(a) requires Maxy to
submit copies of numerous legal documents from his
prior cases, and Federal Rule of Appellate Procedure 21(d)
requires him to file an original and three copies of
the application. We understand this part of Maxy’s plead-
ings as a request for relief against the prison’s alleged
infringement of his right of access to the courts.
Prisoners have a fundamental right of access to the
courts that prisons must facilitate by providing legal
assistance. Bounds v. Smith, 430 U.S. 817 (1977). The right
of access, however, is not “an abstract freestanding right
to a law library or legal assistance.” Lewis v. Casey, 518
U.S. 343, 351 (1996). Instead, prisons are obligated to
assist or, put another way, may not impinge on a
prisoner’s efforts to pursue a legal claim attacking, as
relevant here, his criminal judgment. Casey, 518 U.S. at
355. Maxy’s papers adequately allege that the prison’s
limitation on his use of a copier is impeding his ability
to pursue a claim against his conviction.
But to satisfactorily state a claim for an infringement
of the right of access, prisoners must also allege an actual
injury. Casey, 518 U.S. at 353; Ortiz v. Downey, 561 F.3d
664, 671 (7th Cir. 2009) (“That right [to access courts] is
violated when a prisoner is deprived of such access
and suffers actual injury as a result.”). That is, they

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4 No. 12-8003
must allege that some action by the prison has frustrated
or is impeding an attempt to bring a nonfrivolous legal
claim. Christopher v. Harbury, 536 U.S. 403, 415 (2002)
(“[E]ven in forward-looking prisoner class actions to
remove roadblocks to future litigation, the named plain-
tiff must identify a ‘nonfrivolous,’ ‘arguable’ underlying
claim.”); Marshall v. Knight, 445 F.3d 965, 968 (7th Cir. 2006)
(“[T]he mere denial of access to a prison library or to
other legal materials is not itself a violation of a pris-
oner’s rights; his right is to access the courts, and only
if the defendants’ conduct prejudices a potentially merito-
rious challenge to the prisoner’s conviction [or] sen-
tence . . . has this right been denied.”); Oliver v. Fauver,
118 F.3d 175 (3d Cir. 1997) (assuming that delay caused
by the return to prisoner of his legal mail was an impedi-
ment to accessing the courts; no injury because papers
were in fact accepted and addressed by the court in
the underlying lawsuit). Relief for the denial of access
to the courts is intended to remedy rights denied in
a separate case due to the impediment: “[T]he very point
of recognizing any access claim is to provide effective
vindication for a separate and distinct right to seek
judicial relief for some wrong. . . . [T]he right is ancillary
to the underlying claim, without which a plaintiff
cannot have suffered injury by being shut out of court.”
Harbury, 536 U.S. at 414-15.
It is here that Maxy’s claim fails. Although he ade-
quately alleged that prison action is frustrating his
attempt to file an application, he does not inform us of
the underlying legal claims frustrated by the delay. And
it is the underlying claims he intends to propose in the

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No. 12-8003 5
application that will demonstrate whether he has a
nonfrivolous, arguable claim for authorization. Compare
McCree v. Grissom, 657 F.3d 623, 624 (7th Cir. 2011)
(“McCree pursued his appeal [in an underlying § 1983
case]; we concluded, however, that his complaint did not
state a claim. Without a tenable argument to pursue in
that suit, McCree cannot show prejudice resulting from
the denial of his access to the [prison] law library.”)
(citation to underlying decision omitted). Maxy’s omission
means that he has not alleged an actual injury from
the prison rules limiting his use of the copy machine.
Therefore, he does not state a claim for the denial of his
right to access the courts and we deny his motion for
an order instructing the prison to allow him greater
access to a copier.
That Maxy fails to state an access claim does not close
the door on his petition. We can grant discretionary
relief from the requirements of circuit rules in appro-
priate cases. See McNeil v. United States, 508 U.S. 106,
113 (1993) (“Our rules of procedure are based on the
assumption that litigation is normally conducted by
lawyers. . . . [And we] have held that some procedural
rules must give way because of the unique circumstances
of incarceration.”) (citing Houston v. Lack, 487 U.S. 266
(1988)); GCIU Emp’r Ret. Fund v. Chicago Trib. Co., 66 F.3d
862, 864 (7th Cir. 1995) (“[B]ecause of the importance
of questions raised on appeal, the court [may] overlook
alleged inadequacies in an appellant’s appendix and
consider the merits of an appeal.”). See also Cir. R. 2 (“In
the interest of expediting decision or for other good
cause, the court may suspend the requirements of these

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6 No. 12-8003
Circuit Rules.”). We discuss what constitutes an appro-
priate case for the exercise of discretion first in the
context of Circuit Rule 22.2 and then Appellate Rule 21(d).
Circuit Rule 22.2 states,
(a) A request under 28 U.S.C. §2244(b) or the final
paragraph of 28 U.S.C. §2255 . . . must include the
following information and attachments, in this order:
. . .
(4) Copies of all opinions rendered by any state or
federal court previously rendered in the criminal
prosecution, any appeal, and any collateral attack.
(5) Copies of all prior petitions or motions for
collateral review.
Rule 22.2(e) concludes that “[a]n applicant’s failure to
supply the information and documents required by this
rule will lead the court to dismiss the application, but
without prejudice to its renewal in proper form.” The
document requirement covers the spectrum and, as
demonstrated by this case, compliance is especially
difficult for incarcerated applicants who are proceeding
pro se. See Casey, 518 U.S. at 355 (acknowledging limita-
tions incident to incarceration making litigation more
difficult); McNeil, 508 U.S. at 113.
In 1996, when Circuit Rule 22.2 was written, legal
documents from closed cases were not readily available
to the courts. Once the decision in a case became final,
the record was sent to an archive and not easily retrieved.
One of the original purposes of subsections (a)(4) and (5)

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No. 12-8003 7
was to force applicants, who presumably had readier
access to the papers from their earlier cases, to provide
the court with the information necessary to apply
§ 2244(b)(1), which prohibits the authorization of pro-
posed claims that have previously been presented to
a court.
Another goal of subsection (a)(5) is to assist in the
determination of whether an applicant actually requires
authorization to proceed on the action proposed by the
application. The rules governing who must obtain pre-
approval to proceed are intricate and confusing even
for lawyers. And prisoners proceeding pro se and
without any legal training may not understand the
legal repercussion of an earlier decision. It is not
unusual for a prisoner to believe he needs authorization
when he does not. See, e.g., Pavlovsky v. VanNatta, 431
F.3d 1063 (7th Cir. 2005) (earlier collateral attack
explicitly dismissed without prejudice despite its
decision on the merits); Shepeck v. United States, 150
F.3d 800 (7th Cir. 1998) (earlier collateral attack was
successful); Valona v. United States, 138 F.3d 693 (7th
Cir. 1998) (prior collateral attack challenged a different
source of custody); O’Connor v. United States, 133 F.3d
548 (7th Cir. 1998) (earlier collateral attack was dis-
missed because the criminal case was still pending).
Since Rule 22.2 was adopted, technological advances
have made accessing papers from earlier cases consider-
ably easier. Electronic filing and storage of legal papers
filed in the federal courts is now the norm and, thus,
those papers are readily available to successor courts.

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8 No. 12-8003
Circuit Rule 25(b) excuses unrepresented litigants from the 1
electronic filing requirement.
3-15-12
Thus, for example, we have independently obtained and
reviewed the papers from Maxy’s initial collateral attack
and his first application. Therefore, we can say with
certainty that he requires authorization to proceed on a
habeas corpus petition attacking his 60-year sentence for
attempted murder, burglary-battery, and bail jumping.
Likewise, when we receive the forthcoming applica-
tion, we will be able to compare it and his earlier
pleadings to determine whether § 2244(b)(1) prohibits
authorization.
Technological advances also take care of the require-
ment that individuals filing original actions in this
court, like a § 2244(b) application, must file an original
and three copies of their pleadings. Fed. R. App. P. 21(d).
Before electronic filing was possible, the expense of
making sufficient copies to make the record and for
review by a panel of three judges rightfully fell to the
litigants. Now, however, a single paper copy submitted
by a pro se prisoner may be scanned and distributed to1
the court at virtually no extra cost.
Under these circumstances, we are comfortable ex-
cusing Maxy from complying with Rule 22.2(a)(4) and (5)
and Appellate Rule 21(d).
IT IS SO ORDERED.

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