Pratt v. United States

UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT

No. 97-1579

DAVID P. PRATT,

Petitioner, Appellant,

v.

UNITED STATES OF AMERICA,

Respondent, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Steven J. McAuliffe, U.S. District Judge]

Before

Selya, Boudin and Stahl,

Circuit Judges.

Leo T. Sorokin, Federal Defender Office, for appellant.

Peter E. Papps, First Assistant United States Attorney, with

whom Paul M. Gagnon, United States Attorney, was on brief, for

appellee.

November 6, 1997

SELYA, Circuit Judge. Petitioner-appellant David P.
SELYA, Circuit Judge.

Pratt, who is currently serving a federal sentence, filed a

second petition for post-conviction relief under 28 U.S.C. 2255

(1994 and Supp. 1996).1 Relying on the Antiterrorism and

Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132,

110 Stat. 1214 (1996) (codified in scattered sections of 28

U.S.C.), the district court dismissed the petition pro forma

because Pratt had not obtained clearance from the court of

appeals. AEDPA's novelty, together with the odd timing and

peculiar circumstances of the petitioner's case, take us down a

sometimes recondite legal trail. In the end, we conclude that

AEDPA applies here and that, properly construed, it bars Pratt's

attempt to prosecute a second habeas petition.

I. BACKGROUND
I. BACKGROUND

In April of 1994, a federal petit jury in the District

of New Hampshire heard testimony that, after a local police chief

confiscated several of Pratt's firearms, Pratt sent him a

mutilated pig carcass. Weighing this and other evidence, the

jury found Pratt guilty of mailing a threatening communication in

violation of 18 U.S.C. 876 (1994). The judge departed upward

and sentenced Pratt to a lengthy prison term. The appeal period

1In terms, 28 U.S.C. 2255 speaks of a "motion" rather than
a "petition," yet the latter word is more commonly used to
describe the vehicle by which a person held in custody seeks
post-conviction relief. Although there may be occasions on which
the terms have different meanings, this is not one of them; and,
therefore, we use the term "petition" throughout this opinion in
order to avoid confusion. By the same token, we use the terms
"section 2255 petition," "habeas petition," and "petition for
post-conviction relief" interchangeably.

2

expired and Pratt's conviction became final.

After unsuccessfully moving pro se to file a tardy

notice of appeal, Pratt obtained fresh counsel and filed his

first section 2255 petition on March 9, 1995. He alleged a

violation of his Sixth Amendment right to the effective

assistance of counsel premised on a claim that, despite repeated

requests, his trial attorney had failed to perfect a timeous

appeal of the conviction. Pratt did not aver, however, that his

attorney's performance at trial was constitutionally defective.

The district court granted the petition in an unpublished order,

vacated the judgment, and resentenced Pratt (thus triggering a

new appeal period). Pratt's new lawyer filed a timely appeal,

but to no avail; a panel of this court affirmed the conviction.

See Pratt v. United States, 73 F.3d 450, 454 (1st Cir. 1996).2

On January 17, 1997, Pratt filed his second section

2255 petition, this time seeking to set aside his conviction on

the ground that his original lawyer's lack of trial acumen

violated Pratt's Sixth Amendment right to the effective

assistance of counsel. On April 8, 1997, the district court

dismissed this petition without prejudice for failure to comport

with AEDPA's "prior approval" prerequisite for second or

successive habeas petitions. This appeal ensued.

2The panel did, however, remand, while retaining appellate
jurisdiction, to obtain a clear statement of the reasons
underlying the upward departure. See Pratt, 73 F.3d at 453-54.

After Judge McAuliffe released an explanatory statement, see

United States v. Pratt, 940 F. Supp. 424 (D.N.H. 1996), the panel

issued an unpublished order dated August 8, 1996, making the
affirmance unconditional.

3

II. ANALYSIS
II. ANALYSIS

AEDPA took effect on April 24, 1996, after the district

court resolved Pratt's initial habeas petition but before his

second petition eventuated. The new law imposes significant

restrictions on second or successive habeas petitions brought on

behalf of federal prisoners. These restrictions have both

procedural and substantive dimensions. Procedurally, AEDPA

incorporates by reference in section 2255 the same screen that

AEDPA makes applicable to second or successive habeas petitions

prosecuted on behalf of persons being held in state custody. The

statute thus requires a federal prisoner, before docketing a

second or successive habeas petition in the district court, to

obtain from "the appropriate court of appeals . . . an order

authorizing the district court to consider the application." 28

U.S.C. 2244(b)(3)(A) (as incorporated in 28 U.S.C. 2255); see

also Felker v. Turpin, 116 S. Ct. 2333, 2337 (1996).

Substantively, AEDPA directs the court of appeals to condition

its authorization of a second or successive petition on the

applicant's showing of either:

(1) newly discovered evidence that, if proven
and viewed in light of the evidence as a
whole, would be sufficient to establish by
clear and convincing evidence that no
reasonable factfinder would have found the
movant guilty of the offense; or

(2) a new rule of constitutional law, made
retroactive to cases on collateral review by
the Supreme Court, that was previously
unavailable.

28 U.S.C. 2255.

4

This appeal necessitates that we determine whether

Pratt's second section 2255 petition comes within AEDPA's reach,

and if so, whether the statute permits us to authorize further

proceedings in the district court. Before pursuing either of

these inquiries, however, we pause to address the government's

contention that this court lacks jurisdiction to hear the instant

appeal.

A.
A.

In the proceedings below, the district court dismissed

Pratt's second habeas petition without prejudice, noting that he

had failed to obtain clearance from the court of appeals as

required by AEDPA. The government contends that, inasmuch as the

order is not dispositive of any issue, it is not a "final order,"

28 U.S.C. 1291 (1994), and thus cannot support the weight of an

appeal. The government is wrong.

AEDPA's prior approval provision allocates subject-

matter jurisdiction to the court of appeals by stripping the

district court of jurisdiction over a second or successive habeas

petition unless and until the court of appeals has decreed that

it may go forward. See Nu ez v. United States, 96 F.3d 990, 991

(7th Cir. 1996). This statutory directive means that a district

court, faced with an unapproved second or successive habeas

petition, must either dismiss it, see id., or transfer it to the

appropriate court of appeals,3 see Benton v. Washington, 106 F.3d

3Transfers can be accomplished by resort to a statute that
provides in pertinent part:

5

162, 164 (7th Cir. 1996); Liriano v. United States, 95 F.3d 119,

122-23 (2d Cir. 1996). The court below chose the former course.

If Pratt had acknowledged that AEDPA governed his

latest petition, the district court's decision might not have

been appealable. Here, however, Pratt disputes AEDPA's

applicability. He can regain access to the district court (and

thereby vindicate his theory) only by an appeal and a subsequent

holding that the district court erred in applying AEDPA to his

latest petition. The district court's order is therefore final

in the relevant sense, see In re Nineteen Appeals Arising Out of

the San Juan DuPont Plaza Hotel Fire Litig., 982 F.2d 603, 608

(1st Cir. 1992) (explaining that section 1291's finality

requirement has a practical cast), and it is appealable. That

the district court's dismissal was without prejudice is of no

moment. Appellate courts routinely exercise jurisdiction over

claims dismissed without prejudice when the dismissal contains

sufficient indicia of finality. See, e.g., Presbytery of N.J. v.

Whenever a civil action is filed in a court .
. . or an appeal . . . is noticed for or
filed with such a court and that court finds
that there is a want of jurisdiction, the
court shall, if it is in the interest of
justice, transfer such action or appeal to
any other such court in which the action or
appeal could have been brought at the time it
was filed or noticed, and the action or
appeal shall proceed as if it had been filed
in or noticed for the court to which it is
transferred on the date upon which it was
actually filed in or noticed for the court
from which it is transferred.

28 U.S.C. 1631 (1994).

6

Florio, 40 F.3d 1454, 1461 (3d Cir. 1994); Kobleur v. Group

Hosp'n & Med. Servs., Inc., 954 F.2d 705, 708 (11th Cir. 1992);

Brady v. Sullivan, 893 F.2d 872, 876 n.8 (7th Cir. 1989); Local

No. 714 v. Greater Portland Transit Dist., 589 F.2d 1, 6 (1st

Cir. 1978).

To be sure, Pratt also contends that even if AEDPA

applies generally to cases in the same temporal posture its

provisions do not bar his pursuit of post-conviction relief. To

this extent, the government's jurisdictional jousting may hit

closer to home. Nevertheless, we need not spend much time on

this largely metaphysical debate. In very similar circumstances,

the Seventh Circuit has crafted a pragmatic approach to this sort

of problem. It has declared that it will treat a notice of

appeal as a request for an authorization to file a second section

2255 petition and thus preserve appellate jurisdiction if doing

so will save unnecessary paperwork without sacrificing any

party's substantial rights. See Nu ez, 96 F.3d at 991.

Pratt invites us to employ that approach here, the

appellate record is adequate to the task, and taking this avenue

expedites adjudication of the matters in issue. We therefore

hold that, when a district court dismisses a second or successive

petition without prejudice because the court of appeals has not

approved its prosecution, and the petitioner appeals, the court

of appeals may in its discretion treat the notice of appeal as a

request for authorization to file a second or successive

petition. We exercise that discretion here to the extent, if at

7

all, that it may be necessary to do so. Either way, we have

jurisdictionto hearand determinetheissues raisedin Pratt'sappeal.

B.
B.

The filing dates of Pratt's two section 2255 petitions

straddle AEDPA's effective date. On this basis, Pratt maintains

that the question whether the statute applies to his second

petition must be answered in the negative because doing so would

place an impermissible retroactive burden on his first petition.

We disagree.

We begin our analysis by remarking the obvious:

applying a statute to a pleading that was filed after the

statute's effective date is not really a "retroactive"

application in the classic sense. Here, moreover, we know on the

best of authority that Congress intended that AEDPA apply to all

section 2255 petitions filed after its effective date (April 24,

1996). See Lindh v. Murphy, 117 S. Ct. 2059, 2063 (1997).

We know, too, that the Supreme Court recently and

uncritically applied AEDPA to a prisoner's second habeas petition

even though the prisoner had filed his first petition prior to

AEDPA's enactment. See Felker, 116 S. Ct. at 2336-37. Several

courts of appeals have followed suit. See, e.g., In re Medina,

109 F.3d 1556, 1561-62 (11th Cir. 1997); Roldan v. United States,

96 F.3d 1013, 1014 (7th Cir. 1996); Hatch v. Oklahoma, 92 F.3d

1012, 1014 (10th Cir. 1996). This approach is sound not only

from a legal perspective but also from the standpoint of common

8

sense. After all, if pre-AEDPA jurisprudence somehow attached to

an entire course of post-conviction proceedings by virtue of a

prisoner's having filed a pre-enactment petition at some point

along the way, then the Court's opinion in Felker would be

drained of all meaning.

Faced with these formidable obstacles, Pratt attempts

to refocus the definition of retroactivity. He reminds us of the

Supreme Court's directive that a court which confronts a possible

retroactivity problem should ask whether a freshly minted statute

"attaches new legal consequences to events completed before its

enactment." Landgraf v. USI Film Prods., 511 U.S. 244, 270

(1994). Wielding this club, Pratt asserts that the application

of AEDPA to his second petition impermissibly alters the legal

consequences of his first petition (which was fully adjudicated

prior to AEDPA's passage). This argument, in turn, leads him to

embrace the "mousetrapping" doctrine. See Burris v. Parke, 95

F.3d 465, 468-69 (7th Cir. 1996). Based on this construct (which

to our knowledge has not been adopted outside the Seventh

Circuit), he argues that, even if AEDPA otherwise might control

his second habeas petition, it should not do so in the

circumstances of this case.4

4This extra step is a necessary element of Pratt's position
because an affirmative answer to the above-described Landgraf

inquiry does not automatically render a statute impermissibly
retroactive. To the contrary, the Landgraf Court warned that a

"statute does not operate [retroactively] merely because it . . .
upsets expectations based on prior law." 511 U.S. at 269. A
conclusion of retroactivity instead "comes at the end of a
process of judgment concerning the nature and extent of the
change in the law and the degree of connection between the

9

The particulars of Pratt's claim are fuzzy. He appears

to be saying, with minimal elaboration, that the district court

would have entertained his second section 2255 petition under the

prevailing pre-AEDPA standard, see McCleskey v. Zant, 499 U.S.

467, 493 (1991) (discussing the parameters of the "abuse of the

writ" principle), and so, application of AEDPA's more stringent

standard to his second section 2255 petition will attach new and

unforeseen legal consequences to the filing of his first petition

(in effect penalizing him retroactively for having failed to

include all possible constitutional claims in his first

petition). In Pratt's view, this adverse effect on his post-

conviction litigation strategy "mousetraps" him.

Even were we to address the mousetrapping doctrine a

matter that we leave for another day Pratt could not take

advantage of it. The doctrine requires a habeas petitioner to

show that he consciously chose to withhold a potential ground for

relief from his first petition because he detrimentally relied

upon pre-AEDPA law. See, e.g., Alexander v. United States, 121

F.3d 312, 314 (7th Cir. 1997); Roldan, 96 F.3d at 1014; see also

In re Magwood, 113 F.3d 1544, 1552-53 (11th Cir. 1997). Pratt

cannot carry this burden. Although he states perfunctorily that

he "relied upon the abuse of the writ law as it existed when he

filed his [original] 2255" petition, he offers no legal or

factual support for this conclusory statement. More is needed.

operation of the new rule and a relevant past event." Id. at

270.

10

See In re Medina, 109 F.3d at 1562 n.1 (holding that a

petitioner's "one-sentence conclusory statement" did not

establish detrimental reliance).

More important than Pratt's subjective understanding is

the utter lack of any facts remotely suggesting detrimental

reliance. "In assessing detrimental reliance vel non, the test

is one of objective reasonableness under the circumstances."

Henry v. Connolly, 910 F.2d 1000, 1003 (1st Cir. 1990).

Accordingly, the question here is not whether Pratt actually

believed, when he filed his first habeas petition, that then-

prevailing law would allow him to file a second petition on the

withheld ground of ineffective assistance of trial counsel so

long as he could pass muster under McCleskey; the question,

rather, is whether such a subjective belief, even if it existed,

is objectively reasonable.

As a general matter, reliance upon pre-AEDPA law as a

basis for permitting a second petition rarely will clear this

hurdle. The "cause and prejudice" test that McCleskey imposed to

screen out abusive deployments of the writ is notoriously

difficult to pass. See, e.g., McCleskey, 499 U.S. at 500; Murray

v. Carrier, 477 U.S. 478, 495-96 (1986); United States v. Shaid,

937 F.2d 228, 236 (5th Cir. 1991); see generally Erwin

Chemerinsky, Federal Jurisdiction 15.4.3, at 809-11 (2d ed.

1994).5 Pratt cannot satisfy its rigors.

5Of course, the Seventh Circuit did make such a
determination in Burris, 95 F.3d at 469-70. But there the court

predicated its finding of detrimental reliance on the notion that

11

The only reason that Pratt advances for exhuming his

second habeas petition from the abuse of the writ graveyard is

our statement in Bonneau v. United States, 961 F.2d 17, 23 (1st

Cir. 1992), to the effect that a prisoner who files a section

2255 petition in which he alleges that his attorney failed to

perfect a direct appeal "must be treated like any other appellant

appealing for the first time." But this statement has absolutely

nothing to do with abuses of the writ; as Bonneau itself makes

clear in the immediately succeeding sentence, the language on

which Pratt relies only "means that [the section 2255 petitioner]

does not have to show that there are meritorious issues to be

appealed." Id. Because Bonneau merely restates the

uncontroversial rule that a federal habeas petitioner who alleges

a Sixth Amendment deprivation grounded in his attorney's failure

to perfect a direct appeal need not prove actual prejudice, see

Penson v. Ohio, 488 U.S. 75, 88 (1988), the single sentence that

Pratt wrests out of context fails to serve his ends.

With Bonneau out of the picture, Pratt's cupboard is

bare; he has not proffered any other basis for a finding of

detrimental reliance. Consequently, we have no occasion to

consider the merits of the mousetrapping doctrine because Pratt's

case does not come within its ambit. Accord In re Magwood, 113

the government had waived any abuse of the writ defense to a
second habeas petition during proceedings directed at the
resolution of the first petition. See id. In contrast, Pratt

does not allege that any statement or conduct on the government's
part lulled him into believing that it would condone a second
section 2255 petition.

12

F.2d at 1552-53 (distinguishing, but not endorsing, Burris); In

re Medina, 109 F.3d at 1562-63 (same).

To recapitulate, since Pratt has not shown that

application of AEDPA to his second section 2255 petition works an

impermissible retroactive effect, his second petition is, as a

temporal matter, within AEDPA's jurisprudential reach. See

Lindh, 117 S. Ct. at 2063.

C.
C.

Pratt has another string to his bow. He maintains that

the instant petition is not "second or successive" within AEDPA's

contemplation and, hence, is not subject to the new statutory

restrictions.

Like prior habeas statutes, AEDPA does not define the

mantra "second or successive." Courts that have interpreted the

same phrase in relation to the pre-AEDPA version of 28 U.S.C.

2244(b) have determined that a numerically second petition is not

"second or successive" if it attacks a different criminal

judgment or if the earlier petition terminated without a judgment

on the merits. See 2 James S. Liebman & Randy Hertz, Federal

Habeas Corpus Practice and Procedure 28.3a, at 916-20 (2d ed.

1994). We agree that AEDPA does not blunt the force of these

interpretations, but we are not persuaded that the emergent rule

pertains in the circumstances presented here.

1.
1.

Decisions that construe the meaning of "second or

13

successive" most frequently concern a court's dismissal of a

prisoner's first habeas petition for failure to exhaust state

remedies. See, e.g., Howard v. Lewis, 905 F.2d 1318, 1322-23

(9th Cir. 1990); Hill v. Lockhart, 894 F.2d 1009, 1010 (8th Cir.

1990) (en banc). Recent post-AEDPA cases have hewed to the line

exemplified by Howard and Hill and have preserved the rule that

if the original petition did not produce an adjudication on the

merits a prisoner's later petition will not be deemed "second or

successive." See, e.g., In re Gasery, 116 F.3d 1051, 1052 (5th

Cir. 1997); Christy v. Horn, 115 F.3d 201, 208 (3d Cir. 1997);

Dickinson v. Maine, 101 F.3d 791, 791 (1st Cir. 1996); Camarano

v. Irvin, 98 F.3d 44, 46 (2d Cir. 1996).

In a federal forum, habeas petitions that involve

federal prisoners, 28 U.S.C. 2255, differ from those that

involve state prisoners, 28 U.S.C. 2241-2254, in that the

former are not constrained by an exhaustion requirement. See 2

Liebman & Hertz, supra, 41.4a, at 1196. In particular, claims

of ineffective assistance of counsel embodied in a section 2255

petition generally are not deemed procedurally defaulted simply

because they were not raised on direct appeal. See, e.g., United

States v. Soldevila-Lopez, 17 F.3d 480, 485 (1st Cir. 1994);

United States v. Daniels, 3 F.3d 25, 26-27 (1st Cir. 1993). The

absence of a procedural bar opens an opportunity for overlap: a

federal prisoner bent on asserting an ineffective assistance

claim can simultaneously file a direct appeal of his conviction

and a section 2255 petition, resulting in two federal courts

14

concurrently reviewing the same judgment. To prevent such

redundancy, we have ruled that except in extraordinary

circumstances we will dismiss a section 2255 petition claiming

ineffective assistance of counsel as premature until the

prisoner's direct appeal concludes. See United States v. Diaz-

Martinez, 71 F.3d 946, 953 (1st Cir. 1995); United States v.

Gordon, 634 F.2d 638, 638-39 (1st Cir. 1980).

Pratt seizes upon this body of authority and argues

that, under it, the district court probably would have dismissed

as premature his ineffective assistance of trial counsel claim

had he asserted it in his original petition. Thus, Pratt

theorizes, failure to raise the claim in the initial petition is

no different, practically speaking, than if the court had

dismissed it without deciding the merits. Based on that analogy,

he posits that applying AEDPA's restrictions to pretermit his

later petition produces a fundamentally unfair whipsaw effect.

We find Pratt's suppositional ex post justification for

his failure to include the claim of ineffective assistance of

trial counsel in his initial habeas petition unconvincing for two

reasons. First, and most obviously, we have classified section

2255 petitions as premature only when the petitioner's direct

appeal was still pending. See, e.g., Diaz-Martinez, 71 F.3d at

953; Gordon, 634 F.2d at 638-39. Because no appeal was pending

in Pratt's case when he began his quest for collateral relief,

the claim of ineffective assistance of trial counsel would not

have been subject to dismissal as premature under our precedents.

15

Second, even if an included ineffective assistance of trial

counsel claim might have been sidetracked once the district court

cleared the way for a direct appeal, cf. United States v.

DeFalco, 644 F.2d 132, 137 (3d Cir. 1979) (en banc), Pratt still

had ample incentive to include the claim in his first petition.

After all, he could not predict whether the district court would

grant his original petition on the single ground that he actually

asserted ineffective assistance anent counsel's failure to file

a timely appeal and, had the district court denied relief,

Pratt could not have asserted an unpreserved claim either on

appeal or in a second petition.6

We discern no unfairness in holding Pratt to this

regimen. The requirement that all available claims be presented

in a prisoner's first habeas petition is consistent not only with

the spirit of AEDPA's restrictions on second and successive

habeas petitions, but also with the preexisting abuse of the writ

principle. The requirement serves the singularly salutary

purpose of forcing federal habeas petitioners to think through

all potential post-conviction claims and to consolidate them for

6Although the existence of an incentive may affect the
equitable balance, we note that, even in the absence of any
incentive, the reported cases refuse to accept the position that
Pratt espouses. For example, in Martinez-Villareal v. Stewart,

118 F.3d 628 (9th Cir. 1997) (per curiam), cert. granted, 66

U.S.L.W. 3157 (U.S. Oct. 14, 1997) (No. 97-300), a case in which
the habeas petitioner had absolutely no incentive to include a
claim of incompetency to be executed in his first petition in
all events, that claim automatically would have been deemed
premature the Ninth Circuit stated that "a competency claim
must be raised in the first petition." Id. at 634; accord In re

Davis, 121 F.3d 952, 955 (5th Cir. 1997).

16

a unitary presentation to the district court. This exercise

advances the cause of judicial efficiency and further justifies

barring Pratt's second petition. See Richmond v. Ricketts, 774

F.2d 957, 960 (9th Cir. 1985).

2.
2.

Pratt mounts yet another argument in support of his

plea that we not treat his numerically second petition as "second

or successive." This argument derives from the Rules Governing

Section 2255 Proceedings a set of rules that the Supreme Court

has promulgated pursuant to congressionally delegated authority.

See 28 U.S.C. 2072 (1994). Like all similar federal rules,

these rules carry the force and effect of positive law. See

Swazo v. Wyoming Dep't of Corrections State Penitentiary Warden,

23 F.3d 332, 333 (10th Cir. 1994); see also McCoy v.

Massachusetts Inst. of Tech., 950 F.2d 13, 21 (1st Cir. 1991).

Rule 2(c) provides in relevant part that a habeas petition "shall

be limited to the assertion of a claim for relief against one

judgment only of the district court."

AEDPA did not alter Rule 2(c), and the rule is

potentially significant here because, after the district court

granted Pratt's first section 2255 petition, it vacated Pratt's

sentence and resentenced him in order to trigger a new appeal

period. On this basis, Pratt asserts that the second petition

challenges a different judgment and is therefore not "second or

successive." This argument is attractive at first blush, but

blemishes emerge upon closer study.

17

In the first place, although Pratt grasped avidly for

this apparent lifeline when it surfaced at oral argument in this

court, the appearance marked its debut in the case. It is firmly

settled in this circuit that arguments not advanced and developed

in an appellant's brief are deemed waived. See Sandstrom v.

ChemLawn Corp., 904 F.2d 83, 87 (1st Cir. 1990).

In the second place, this laglast argument is more a

makeweight than a lifeline. The district court's method of

restoring Pratt's right to an appeal vacating the sentence and

then reimposing it is standard practice among federal courts.

See, e.g., United States v. Pearce, 992 F.2d 1021, 1023 (10th

Cir. 1993); Page v. United States, 884 F.2d 300, 302 (7th Cir.

1989). Although a reentered judgment of conviction, identical in

all material respects to the judgment that it supplanted,

technically may be "new," the vital question for present purposes

is whether it is a type of new judgment that is subject to

challenge in a second habeas petition without regard to earlier

petitions addressed to the original judgment. We hold that it is

not.

Under ordinary circumstances, a prisoner who

successfully brings a habeas petition and is retried,

reconvicted, and resentenced may collaterally attack the new

judgment without fear of hindrance by the legal restrictions that

encumber second or successive habeas petitions. See Palmer v.

Clarke, 961 F.2d 771, 774-75 (8th Cir. 1992); Richmond, 774 F.2d

at 960. Nevertheless, this opportunity to petition freely for

18

post-conviction relief after a new judgment of conviction is not

unfettered. As a general rule, a prisoner who had both the

incentive and the ability to raise a particular claim in his

first petition for post-conviction relief, but declined to assert

it, cannot raise it the second time around.

To illustrate, if the relief granted in response to an

initial habeas petition addresses only the petitioner's sentence,

he customarily cannot re-petition after resentencing based on

alleged errors affecting the underlying conviction. See

Richmond, 774 F.2d at 960. The rationale for such a holding is

clear: the prisoner had ample incentive to challenge the

underlying conviction in his first request for post-conviction

relief since success on a claim of trial error would have wiped

out the sentence and obviated the need to address any sentencing

bevues; and, assuming that the prisoner had the ability to raise

the trial-error claim in his first petition, there is no

principled reason why the restrictions designed for second or

successive petitions should not apply. See id.

This rationale applies squarely to Pratt. He had every

incentive to assert his claim of trial error in his initial

section 2255 petition. If the district court agreed that his

lawyer's trial performance was constitutionally defective, then

there would have been no need to appeal a faulty conviction. The

objective that Congress had in mind when it placed curbs on a

prisoner's freedom to file multiple habeas petitions would be

frustrated if a prisoner could negate the legal effect of this

19

kind of omission by the simple expedient of filing another

petition.

There is a related reason why the reentered judgment

does not transform the legal landscape. It is an abecedarian

rule that, in a second petition for post-conviction relief, the

prisoner must be able to point to a new claim of error that is,

a claim of error unavailable the first time around (because, say,

it could not have been discovered in the exercise of reasonable

diligence or it arose after the resolution of the initial

petition). See 2 Liebman & Hertz, supra, 26.3b, at 854-56; id.

28.1, at 896. For example, if a habeas petition results in a

retrial that yields a new conviction, the prisoner is free to

seek further habeas relief based on errors that transpired in the

course of the new trial. See Palmer, 961 F.2d at 774-75.

Similarly, if a habeas petition results in a resentencing, the

prisoner is free to petition for further relief based on errors

that transpired in the course of the resentencing. See Richmond,

774 F.2d at 960. In both cases, the prisoner is seeking redress

for errors that he could not have challenged in a prior post-

conviction proceeding unless he were clairvoyant. Unpursued

errors arising out of events that occurred before the filing of

the initial habeas petition, and which could have been, but were

not, challenged in that petition, fall into a different category.

Those errors normally are not eligible for inclusion in a

subsequent habeas petition. See Palmer, 961 F.2d at 774-75.

Measured against the rule, as explicated by these

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examples, Pratt's asseveration falls short. His current section

2255 petition seeks to set aside the underlying conviction on a

ground that he could have raised, but did not, when he filed his

first petition. Pratt does not assert any claim of error that

became available only after, or as a result of, the court's entry

of a new judgment of conviction. Thus, his numerically second

petition is in fact a second petition as AEDPA uses that term.

D.
D.

The end draws near. Pratt concedes in his appellate

brief that he is unable to satisfy AEDPA's preconditions for

filing a second section 2255 petition. In any event, this

concession is compelled by the record: Pratt neither claims to

possess newly discovered evidence in support of the petition nor

invokes a neoteric rule of constitutional law. See 28 U.S.C.

2255.

We need go no further. Pratt failed to marshal all his

claims of error in his first section 2255 petition, and he must

now pay the piper. AEDPA governs here, and, on the facts of this

case, AEDPA's clear language prohibits Pratt from rectifying his

omission by means of a second petition.

The district court's dismissal of the habeas petition
The district court's dismissal of the habeas petition

is affirmed. The petitioner's appeal is treated concurrently as
is affirmed. The petitioner's appeal is treated concurrently as

a request for leave to file a second or successive habeas
a request for leave to file a second or successive habeas

petition and, as such, it is denied.
petition and, as such, it is denied.

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