In the
United States Court of Appeals
For the Seventh Circuit
No. 10-2357
T HOMAS P. V ITRANO,
Petitioner-Appellant,
v.
U NITED S TATES OF A MERICA,
Respondent-Appellee.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 08-cv-257—Rudolph T. Randa, Judge.
A RGUED JANUARY 12, 2011—D ECIDED JUNE 21, 2011
Before
K ANNE and T INDER, Circuit Judges, and
H ERNDON, District Judge.
T INDER, Circuit Judge. The appellant, Thomas P. Vitrano,
is no stranger to this court. In fact, this is his third
stop here (so far) as a result of a single but admittedly
illegal possession of a shotgun. Several compounding
The Honorable David R. Herndon, Chief Judge of the United
States District Court for the Southern District of Illinois, sitting
by designation.
2 No. 10-2357
events have occurred since Vitrano was last before us
in 2007. He found (or fabricated) a document with the
potential to upend his armed career criminal status
and passed it along to his attorney, who died before
authentication of the document was completed. Vitrano
then found (or fabricated) another such document, which
he used as the primary basis for a pro se 28 U.S.C. § 2255
motion. The government examined both documents
and not only opposed his § 2255 motion but also filed
new criminal charges against him relating to the
allegedly fraudulent nature of the documents. In the
meantime, the Supreme Court clarified the landscape
of the armed career criminal statute, see Chambers v. United
States, 555 U.S. 122, 129 S. Ct. 687 (2009), and Vitrano
moved to amend his § 2255 motion to take advantage
of the new ruling. The government decried Vitrano’s
motion to amend as an impermissible “second or succes-
sive” § 2255 motion. The district court agreed and dis-
missed Vitrano’s case. Though we are not without res-
ervations about the premises of Vitrano’s § 2255
motion, we conclude that the district court erred by
not allowing the proceedings to run their course before
deeming a subsequent filing “second or successive.”
We therefore vacate and remand.
Following his plea of guilty to possessing a firearm as
a felon, 18 U.S.C. § 922(g)(1), while subject to a domestic
abuse injunction to boot, id. § 922(g)(8)(B), Vitrano
was sentenced to 120 months’ imprisonment, the statu-
tory maximum, see 18 U.S.C. § 924(a)(2). The govern-
ment challenged Vitrano’s sentence, arguing that he
should have instead faced a statutory minimum of at
No. 10-2357 3
least 180 months’ imprisonment because he had three
prior “violent felony” convictions that rendered him
subject to the Armed Career Criminal Act (“ACCA”), 18
U.S.C. § 924(e)(1). (The relevant prior convictions were
for escape and reckless endangerment.) We agreed, see
United States v. Vitrano, 405 F.3d 506, 510 (7th Cir.
2005), and remanded the case so the district court could
resentence Vitrano pursuant to the ACCA. Vitrano’s
Guidelines range under the ACCA was 235-293 months,
but the district court imposed an above-Guidelines sen-
tence of 360 months’ imprisonment after hearing
evidence that Vitrano sent an ex-girlfriend live pipe
bombs as a “birthday present” and brutally abused
other women. Vitrano appealed, and we affirmed. See
United States v. Vitrano, 495 F.3d 387 (7th Cir. 2007).
Dissatisfied with the threefold increase in his sen-
tence, Vitrano moved to vacate it pursuant to 28 U.S.C.
§ 2255. In his pro se filing, Vitrano asserted that his
Fifth Amendment rights had been violated and that he
had received ineffective assistance of counsel at various
stages of his criminal proceeding. He also contended
that the district court erred in sentencing him as an
armed career criminal. Vitrano claimed that he had re-
cently located a discharge certificate fully restoring
the civil rights he lost in connection with a 1977 convic-
tion for reckless endangerment; if valid, such a certifi-
cate would render the conviction uncountable for
ACCA purposes regardless of whether it constituted
a “violent felony.” See 18 U.S.C. § 921(a)(20); Buchmeier v.
United States, 581 F.3d 561, 563-64 (7th Cir. 2009) (en banc).
Vitrano explained that his friend and former business
4 No. 10-2357
associate, Scott Valona, discovered Vitrano’s original
discharge certificate among some business records
around the time Vitrano’s second appeal was coming to
a close. According to an attached affidavit from Valona,
Valona found the certificate and, at Vitrano’s request, sent
a copy to Vitrano and the original to Vitrano’s attorney.1
Vitrano’s attorney sent the alleged original to the Bureau
of Alcohol, Tobacco, Firearms and Explosives (“ATF”)
for authentication and testing, and it remained there at
the time Vitrano filed his § 2255 motion.
The district court ordered the government to respond
to Vitrano’s ineffective assistance and ACCA claims. See
R. Governing § 2255 Proceedings for the U.S. Dist. Cts.
4(b). The government encountered some difficulty in
doing so because Vitrano refused to turn over the
pertinent portions of Attorney Barrett’s files. There was
also another wrinkle: Vitrano now claimed that he, not
the ATF, had possession of the original discharge certifi-
cate, which he had personally “laminated” with scotch
tape. The government moved for discovery of these
items and for permission to conduct forensic testing
on both alleged discharge certificates. Because of the
complexity of the ensuing discovery dispute, the district
court appointed counsel for Vitrano. See id. 6(a). Vitrano
continued his opposition to the government’s requests
1
Attorney Paul Barrett represented Vitrano in the district
court (including at both sentencings) and in both of his direct
appeals in this court. Barrett died in mid-2007, several months
before Vitrano initiated the instant § 2255 proceeding.
No. 10-2357 5
through his counsel, but was ultimately unsuccessful in
preventing their discovery.
The government thereafter subjected both alleged
discharge certificates—the one held by the ATF and the
one Vitrano laminated with clear tape—to a battery of
tests. It also interviewed Attorney Barrett’s former
paralegal, Vitrano’s friend Scott Valona, and several long-
time employees of the Wisconsin Department of Cor-
rections, the purported issuer of the certificates. The
government’s forensic tests, coupled with Valona’s re-
cantation of his earlier affidavit and testimony from
the other witnesses, led it to conclude that both dis-
charge certificates were “provably fake”—“inconsistent
with the standard forms submitted in: format, printing
method, form designation, font size, and paper type.”
(The record includes many more colorful details about
the certificates that emerged from the government’s
investigation, but we need not delve into them for the
purposes of this appeal.) Not surprisingly, the govern-
ment filed an explicit opposition response to Vitrano’s
§ 2255 motion, and shortly thereafter obtained an indict-
ment charging Vitrano with perjury, 18 U.S.C. § 1623(a),
and two counts of corrupt influence, 18 U.S.C. § 1512(b)(1)
& (c)(2), in connection with the allegedly forged dis-
charge certificates.
Upon learning of these new criminal charges, the
district court sua sponte ordered the proceedings held
in abeyance until the criminal case was resolved. After
about six months, the district judge, at the request of
another district judge who was presiding over the forged
6 No. 10-2357
certificate criminal case, 2 lifted the stay and “invite[d]”
Vitrano to file a reply brief in support of his § 2255 mo-
tion. (The stay had been entered before the time al-
lowed for filing a reply had expired.)
Vitrano instead sought leave to amend his § 2255
motion pursuant to Federal Rule of Civil Procedure 15(a).
In his motion to amend and accompanying brief in sup-
port, Vitrano invoked Chambers v. United States, 555 U.S.
122, 129 S. Ct. 687 (2009), and contended that his escape
conviction should not have been considered a “violent
felony” for ACCA purposes. Vitrano also challenged
the propriety of treating his reckless endangerment
convictions as violent felonies. He included a proposed
amended § 2255 motion with these filings; it made no
mention of ineffective assistance of counsel or the alleged
discharge certificates.
The government opposed Vitrano’s motion to amend,
contending that it was in substance a second or suc-
cessive § 2255 motion over which the district court lacked
jurisdiction absent certification from this court. See 28
U.S.C. § 2255(h); id. § 2244(b)(3). The government argued
that by not filing a reply to its scathing response to his
initial § 2255 filing, Vitrano had abandoned the motion
“in the face of looming defeat,” Johnson v. United States,
196 F.3d 802, 804 (7th Cir. 1999) (citing Felder v. McVicar,
2
A jury convicted Vitrano on all three counts. As of the
argument in this appeal, he had not yet been sentenced, though
his counsel informed us at oral argument that Vitrano plans
to challenge the convictions in this court.
No. 10-2357 7
113 F.3d 696 (7th Cir. 1997)), and was therefore barred
from filing what was effectively a second § 2255 motion
without first obtaining our permission, see 28 U.S.C.
§ 2255(h); R. Governing § 2255 Proceedings for the U.S.
Dist. Cts. 9.
The district court agreed with the government and
simultaneously dismissed Vitrano’s original § 2255
motion as abandoned and denied his motion to amend
as an unauthorized second or successive collateral at-
tack. The district court also denied Vitrano’s request
for a certificate of appealability, reasoning that no certifi-
cate could issue with respect to Vitrano’s attempted
amendment because it was an unauthorized successive
collateral attack. See Sveum v. Smith, 403 F.3d 447, 448
(7th Cir. 2005) (per curiam). Vitrano then sought a certifi-
cate of appealability from this court. We granted his
request and invited the parties to brief both the substan-
tive Chambers issue and the issue of whether Vitrano’s
motion to amend was in fact a successive petition over
which the district court lacked jurisdiction. We need
only concern ourselves with the latter here.
Under the Anti-Terrorism and Effective Death Penalty
Act (“AEDPA”), prisoners are entitled to a single unen-
cumbered opportunity to pursue collateral review. The
AEDPA prohibits prisoners from filing a second or suc-
cessive § 2255 motion unless they obtain certification to
do so from the court of appeals. See 28 U.S.C. § 2255(h).
The problem is that the AEDPA does not define “second
or successive.” And counting from one to two in
this context is not quite as elementary as it may seem;
8 No. 10-2357
numerically second filings only trigger the second or
successive prohibition if they follow a filing that
“counts” as the prisoner’s first (and only) opportunity
for collateral review. See Johnson, 196 F.3d at 805; see also
Potts v. United States, 210 F.3d 770, 770 (7th Cir. 2000) (“[I]t
[is] vital to determine whether a previous petition (or
motion) was ‘the real thing’ that ought to subject the
petitioner or movant to” AEDPA’s limitations.); O’Connor
v. United States, 133 F.3d 548, 550 (7th Cir. 1998) (“[I]t
is essential to know what happened to the initial petition
in the district court.”). A § 2255 motion need not be
adjudicated on the merits to “count” as a prisoner’s first
motion for AEDPA purposes. Felder, 113 F.3d at 697. A
prisoner who voluntarily dismisses a § 2255 motion, for
instance, may find himself out of luck when he tries to
file a second. Compare Felder, 113 F.3d at 698 (voluntarily
dismissed motion “counts” when dismissed in the face
of impending defeat), with Garrett v. United States, 178
F.3d 940, 942-43 (7th Cir. 1999) (voluntarily dismissed
motions do not “count” when withdrawn for further
development before government files response).
“Drawing these lines can be difficult.” Johnson, 196
F.3d at 804. Indeed, more complexities arise where, as
here, the numerically second filing is not on its face a
§ 2255 motion. Then we must also examine the substance
of the filing to determine whether it is in fact a § 2255
motion that might be second or successive. See Melton
v. United States, 359 F.3d 855, 857 (7th Cir. 2004)
(“Prisoners cannot avoid the AEDPA’s rules by inven-
tive captioning. Any motion filed in the district court
that imposed sentence, and substantively within the
No. 10-2357 9
scope of § 2255 ¶ 1, is a motion under § 2255, no matter
what title the prisoner plasters on the cover. Call it a
motion for a new trial, arrest of judgment, mandamus,
prohibition, coram nobis, coram vobis, audita querela,
certiorari, capias, habeas corpus, ejectment, quare impedit,
bill of review, writ of error, or an application for a Get-Out-
of-Jail Card; the name makes no difference. It is sub-
stance that controls.” (citations omitted)).
The district court determined that Vitrano’s motion
to amend was really just a cleverly captioned second
motion. This conclusion rested on the district court’s
concurrent conclusion that Vitrano had abandoned his
initial motion, thereby rendering his first motion one
countable for AEDPA purposes. Cf. Fed. R. Civ. P. 41(b).
While this outcome is more than understandable in light
of what appears to be the patently frivolous and
fraudulent nature of the bulk of Vitrano’s initial § 2255
filing, the motion to amend could only have been a
second or successive petition if the first petition “counted”
at the time it was filed. But the proceedings concerning
the initial motion had not yet reached such a point.
As we explained in Johnson, “a proposal to amend
one’s first motion is not a ‘second’ motion,” Johnson, 196
F.3d at 804, at least when the first has not yet reached
a final decision, see id. at 805; see also Rutledge v. United
States, 230 F.3d 1041, 1051 (7th Cir. 2000) (“Until a final
ruling has been issued, a district court must consider a
petitioner’s request to amend his § 2255 motion, though
the court need not grant the requested amendments.”).
Restrictive as it is, “the AEDPA allows every prisoner
10 No. 10-2357
one full opportunity to seek collateral review. Part of
that opportunity—part of every civil case—is an entitle-
ment to add or drop issues while the litigation pro-
ceeds.” Johnson, 196 F.3d at 805. Of course, that entitle-
ment is far from boundless. It is circumscribed by
Federal Rule of Civil Procedure 15(a), see R. Governing
§ 2255 Proceedings for the U.S. Dist. Cts. 12; Johnson,
196 F.3d at 805, which provides that courts should grant
leave to amend freely only “when justice so requires,”
Fed. R. Civ. P. 15(a)(2). We reiterated in Rutledge, 230
F.3d at 1051, and Johnson, 196 F.3d at 805, as we do here,
that district courts have wide discretion in deciding
whether to grant leave to amend. Justice generally
does not require such leave if a movant demonstrates
“undue delay, bad faith, or dilatory motive,” or if undue
prejudice to the opposing party would result. Airborne
Beepers & Video, Inc. v. AT&T Mobility LLC, 499 F.3d 663,
666 (7th Cir. 2007). Several of those factors are arguably
present here, though we leave it to the district court
to make that determination in the first instance.
The above discussion only applies if Vitrano’s motion
was in fact a motion to amend and not something else.
See Rutledge, 230 F.3d at 1052 (“Rutledge’s claim also
fails for an independent reason: the letter in question is
only a letter, and not a motion to amend.”). The district
court thought it was something else, largely because it
bore little resemblance to the claims Vitrano initially
raised. Therefore, the district court concluded, Vitrano
plainly abandoned his original claims, which it simulta-
neously dismissed. That seems to us to put the cart a bit
before the horse. Had Vitrano wanted to completely
No. 10-2357 11
abandon his original claims, he could have moved to
dismiss them, see Potts, 210 F.3d at 771; Felder, 113 F.3d at
698, or simply stopped pursuing his case altogether.
(Declining an opportunity to file a reply brief, which
was required neither by the applicable rules or the
district court in this case, may be foolish but does not
constitute abandonment of one’s claims.) Instead, he
took an intermediate route; only if the district court
granted his motion to amend would his original claims
have been supplanted. See Flannery v. Recording Indus.
Ass’n of Am., 354 F.3d 632, 638 n.1 (7th Cir. 2004) (“It is
axiomatic that an amended complaint supersedes an
original complaint and renders the original complaint
void.”). Otherwise, he would be stuck with his feeble
(and perhaps, at least in part, fraudulent) original
claims. Taking the motion to amend path is in this sense
a gamble; some might even call it game play. Cf. Garrett,
178 F.3d at 943 (distinguishing the situation in Garrett
from that in Felder by noting that there was no indica-
tion that Garrett was attempting to “obtain a tactical
advantage in the face of impending defeat”). But that
is why district courts are vested with such wide
discretion when it comes to evaluating the merits of
Rule 15(a)(2) motions to amend; if a motion doesn’t
pass the sniff test, i.e., reeks of bad faith or dilatory
motive, the district court is permitted to deny it and
hold the plaintiff to his original complaint. The district
court did not give Vitrano’s motion to amend that con-
sideration. Instead, it assumed that Vitrano was aban-
doning his initial claims altogether merely by filing the
motion. Maybe that was his ultimate intent, but until the
12 No. 10-2357
district court rules on the motion to amend, and Vitrano
makes his next move, we cannot know for sure.
The judgment of the district court is V ACATED . This case
is R EMANDED for consideration of Vitrano’s motion to
amend and any further proceedings required as a con-
sequence of that decision, such as adjudication of the
merits of his original or amended § 2255 motion.
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