United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Filed July 17, 2001
No. 00-3028
United States of America
v.
Jose Naranjo,
Appellant
Appeal from the United States District Court
for the District of Columbia
93cr00418-01
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On Appellant's Petition for Rehearing
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Before: Sentelle, Henderson, and Tatel, Circuit Judges.
Per Curiam: After this Court denied Jose Naranjo's ("the
Defendant") appeal from the district court's denial of his
collateral review motion, he moved for rehearing or alterna-
tively to amend his motion to include a new claim. In this
motion, for the first time the Defendant claims that his
sentence should be vacated following the Supreme Court's
decision in Apprendi v. New Jersey, 530 U.S. 466 (2000).
Because both the district court and this Court already have
denied the Defendant's collateral review motion based on the
claims he raised originally, and because he does not offer any
reason sufficient for us to reconsider our earlier denial, we
deny his motion for rehearing. In addition, we deny his
motion to add a new claim based on Apprendi.
I. BACKGROUND
In 1995, the Defendant was convicted for drug conspiracy
in violation of 21 U.S.C. ss 841(a)(1) and 846. He was
sentenced to life in prison after the district court judge found
that he was responsible for five or more kilograms of cocaine.
On direct appeal, we affirmed his conviction and sentence.
See United States v. Gaviria, 116 F.3d 1498, 1530-35 (D.C.
Cir.) (per curiam), cert. denied, 522 U.S. 1982 (1998).
In 1999, the Defendant filed a pro se motion for habeas
corpus relief under 28 U.S.C. s 2255, asserting five claims for
relief. The district court denied the Defendant's motion and
subsequently denied his request for a certificate of appealabil-
ity. The Defendant then petitioned this Court for a certifi-
cate of appealability. In August 2000, we denied his petition
and dismissed his appeal. The Defendant then filed a "Mo-
tion for Rehearing and Suggestion for Rehearing En Banc
and Motion for Leave to Supplement/Amend Motion to Va-
cate" in light of Apprendi. In this filing, the Defendant
argues for the first time that his sentence should be vacated
under Apprendi. We ordered the Government to respond to
this motion and appointed amicus curiae to file a reply brief
on behalf of the Defendant.
II. ANALYSIS
In his motion, the Defendant seeks to assert issues on
rehearing that were not raised before the district court
originally or before us initially on appeal. Amicus curiae
argues that the Defendant's motion to amend should be
granted (or at least remanded to the district court to consider
granting it) under the "long-odds exception" to the general
rule barring amendments to pleadings on appeal. See Dart-
mouth Review v. Dartmouth Coll., 889 F.2d 13, 23 (1st Cir.
1989). Under the long-odds exception recognized by the
First Circuit, a court will grant leave to amend if "justice ...
requires further proceedings." Id. (internal quotation omit-
ted). Amicus curiae claims that justice requires permitting
the amendment in this case because, among other reasons:
(1) the Defendant in no way acted in bad faith by not raising
the Apprendi issue earlier; (2) he would have been allowed to
amend his motion in district court under Federal Rule of
Procedure 15(a); and (3) "courts freely grant pro se litigants
leave to amend," Richardson v. United States, 193 F.3d 545,
548 (D.C. Cir. 1999). If the amendment is permitted, amicus
curiae avers that it will relate back to the time of the
Defendant's original s 2255 motion, see Fed. R. Civ. P.
15(c)(2), and therefore meet s 2255's statute of limitation
requirements, see s 2255 p 6(1).
By raising certain claims "before the court which imposed
the sentence," 28 U.S.C. s 2255 p 1, the Defendant has
waived his statutory right under s 2255 to assert other claims
on appeal as part of his initial motion for collateral review.
Cf. Abdullah v. United States, 240 F.3d 683, 685 (8th Cir.
2001) ("Generally, a habeas claim cannot be raised by a
petitioner for the first time on appeal."). We already have
denied the Defendant's s 2255 motion once, and he has not
articulated why the issues initially raised in that motion
justify rehearing by the panel or by the Court en banc. See
D.C. Cir. R. 35; Fed. R. App. P. 35, 40.
This Court has a well-established rule against allowing
parties to initiate new claims on appeal and has never
adopted the long-odds exception. See Shipbuilders Council
of Am. v. United States, 868 F.2d 452, 456 n.2 (D.C. Cir.
1989). We have, however, cited the First Circuit's decision in
Dartmouth Review to note that our approach to parties'
attempts to amend their pleadings on appeal "need not be
inflexible." Guam v. Am. President Lines, 28 F.3d 142, 151
& n.18 (D.C. Cir. 1994). Still, in that case, as in other cases,
we denied the party's attempt to add a new claim on appeal.
See id. at 151; see also Independent Petroleum Ass'n of Am.
v. Babbitt, 235 F.3d 588, 597 (D.C. Cir. 2001); Shipbuilders
Council, 868 F.2d at 456 n.2.
If we permit the Defendant to raise his Apprendi claim in
his motion for rehearing, we would be allowing him not only
to undermine this well-established rule, but also to end-run
the strict requirements for seeking collateral review under
s 2255. Congress specifically limited prisoners to one collat-
eral review motion as of right. See s 2255 p 8. For this
reason, prisoners are on notice to "choose their issues wisely."
Talbott v. Indiana, 226 F.3d 866, 869 (7th Cir. 2000). Indeed,
the Seventh Circuit has warned prisoners that "the itch to
invoke the latest decision of the Supreme Court can be costly,
because a loss will require [the appellate] court's approval to
launch a later collateral attack if better grounds for relief
become available." Id. The district court already "has de-
nied [the Defendant] relief" on the claims raised in his initial
motion for collateral review. See s 2255 p 5. Allowing him
(or similarly situated prisoners) to add new claims to a motion
that already has been dismissed by the district court (and
dismissed on appeal) would effectively give him two bites at
the same apple and would substantially erode the limits
Congress established on prisoners' ability to seek collateral
review. Accordingly, we deny the Defendant's request to
amend his motion for collateral review.
III. CONCLUSION
For the foregoing reasons, the Defendant's motion for
rehearing and motion to amend his s 2255 motion are denied.