In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 16‐2177, 16‐3578, 16‐4207
QUAWNTAY ADAMS,
Petitioner‐Appellant,
v.
UNITED STATES OF AMERICA,
Respondent‐Appellee.
____________________
Appeals from the United States District Court for the
Southern District of Illinois.
No. 13‐cv‐170 — David R. Herndon, Judge.
____________________
ARGUED SEPTEMBER 25, 2018 — DECIDED DECEMBER 13, 2018
____________________
Before KANNE, ROVNER, and BARRETT, Circuit Judges.
ROVNER, Circuit Judge. After losing his motion for post‐
conviction relief under 28 U.S.C. §2255, Quawntay Adams
filed a motion to reopen the proceedings in the district court
under Federal Rule of Civil Procedure 60(b). Because we con‐
clude that the motion under Rule 60(b) was merely an appeal
of issues already addressed in the initial motion, it amounted
to an unauthorized, second motion under 28 U.S.C. §2255
2 Nos. 16‐2177, 16‐3578, 16‐4207
which the district court lacked jurisdiction to review. We af‐
firm.
I.
Quawntay Adams was convicted by a jury of possessing,
with intent to distribute, 100 kilograms or more of marijuana,
conspiracy to commit money laundering, attempting to es‐
cape, and escaping from federal custody. Before trial, the gov‐
ernment announced that it intended to use his prior Califor‐
nia state court conviction for a felony drug offense to increase
his potential sentence. This conviction elevated his statutory
maximum term of imprisonment from forty years to life. At
sentencing, the district court also used this prior conviction as
one of two predicate convictions under the career offender
guideline of the United States Sentencing Guidelines (U.S.S.G.
or Guidelines).1 As a career offender, Adams faced a Guide‐
lines sentencing range of 360 months to life. Adams’ counsel
did not object to the use of this 1997 California state court con‐
viction as a predicate offense. At sentencing, the district court
concluded that Adams qualified as a career offender and sen‐
tenced him to 420 months in prison.
On appeal, Adams’ counsel did not raise any sentencing
issues and alleged only a speedy trial violation and disputed
the sufficiency of the evidence on two counts of conviction. In
response to his insufficiency argument, this court vacated the
money laundering conviction, but otherwise affirmed the
judgment of conviction, and remanded to the district court for
resentencing. United States v. Adams, 625 F.3d 371 (7th Cir.
2010) (Adams’ first direct appeal).
1 The other predicate offense is not at issue.
Nos. 16‐2177, 16‐3578, 16‐4207 3
During his remand for re‐sentencing, Adams argued that
he was misclassified as a career offender because his
conviction for selling a controlled substance under California
law was not a controlled substance offense as defined under
the Sentencing Guidelines. The district court rejected this
argument for two reasons. First, the district court reasoned
that the argument had been waived as it had not been raised
during Adams’ initial sentencing and appeal. (Criminal R. 529
at 29). Second, the district court found that, on the merits,
Adams’ California controlled substance offense was indeed a
controlled substance offense under the Guidelines. Id. In so
deciding, the district court relied on the language of a
document in the California criminal court’s record entitled
“Complaint‐Felony” to determine the nature of Adams’ state
court crime. That complaint made clear that Adams had been
convicted of selling cocaine—an act which is indisputably a
controlled substance offense under the Guidelines.
Unbeknownst to the court, however, Adams was actually
convicted under a different California court filing called a
“Second Amended Information” and not the Complaint.
Consequently, the court should have relied on the former
document and not the latter. Nevertheless, as we will discuss
further, because the language of the charge in the two
documents was identical, and for other reasons, the error did
not have any effect. At re‐sentencing, the district court
imposed the same sentence—420 months. United States v.
Adams, No. 04‐CR‐30029 (S.D. Ill. May 12, 2011) (Criminal R.
No. 523). This court affirmed the district court with similar
reasoning. United States v. Adams, 451 F. App’x 576 (7th Cir.
2011) (second direct appeal).
Adams then filed a pro se motion to vacate his sentence
under 28 U.S.C. §2255. In this §2255 motion, Adams raised
4 Nos. 16‐2177, 16‐3578, 16‐4207
fourteen grounds that he alleged entitled him to post‐
conviction relief. Among these were claims that his previous
attorneys were ineffective for failing to object to the use of the
1997 conviction to classify him as a career offender—the only
claim at issue here. As foundation for this argument, Adams
argued that an offense under the California statute was not
categorically a controlled substance offense under the
Guidelines. He also argued that it was error for the court to
rely on the Complaint rather than the Second Amended
Information as the charging document, and therefore his
counsel was ineffective for failing to object on both grounds.
The district court denied the motion, reasoning that counsel
was not ineffective and his claims had no merit. On appeal of
the denial of the motion, Adams raised the same issues—that
the underlying offense was not a controlled substance offense,
that the court had considered the incorrect charging
documents, and his counsel was ineffective for not raising
these matters. This court denied Adams’ certificate of
appealability on June 12, 2014. Adams v. United States, No. 14‐
1010 (7th Cir. June 12, 2014) (Appellate R. 14).
Without a certificate of appealability, Adams’ options for
further court review were limited. Consequently, he turned to
one of the few options that remain after a court has rendered
a final decision—Federal Rule of Civil Procedure 60(b). This
rule allows a court “to relieve a party … from a final judg‐
ment, order, or proceeding for” a number of exceptional rea‐
sons. Fed. R. Civ. P. 60(b). Adams filed such a motion to reo‐
pen the proceedings in the district court under Fed. R. Civ. P.
60(b)(6), which allows a court to relieve the party from a final
judgment for “any other reason that justifies relief,” arguing
the following: (1) the district court relied on the Complaint
instead of the Second Amended Information when
Nos. 16‐2177, 16‐3578, 16‐4207 5
considering his California conviction; (2) the Court of Ap‐
peals’ erroneous opinion in the second appeal was later con‐
strued as law of the case and caused the district court to dis‐
miss the ineffective assistance of counsel claim, thus denying
him fair review under §2255; (3) the Seventh Circuit failed to
notify him of the denial of his request for a certificate of ap‐
pealability; and (4) he was not represented by counsel during
his §2255 proceedings and therefore should not be procedur‐
ally barred as the result of any mistakes in that proceeding.
The district court denied this first Rule 60(b)(6) motion based
on the fact that the motion was simply a disguised successive
and unauthorized §2255 motion. The court concluded that it
had already considered his career offender status and the cor‐
responding enhanced sentence along with his ineffective as‐
sistance claim.
When the district court denied the motion, Adams asked
for reconsideration. The court denied that request and later
denied another Rule 60(b) motion to reopen. Adams v. United
States, No. 13‐cv‐170‐DRH, (Aug. 8, 2016) (§2255 R. 56); Adams
v. United States, No. 13‐cv‐170‐DRH, (Dec. 7, 2016) (§2255
R. 66). Adams appealed from each of the denials and the court
consolidated those appeals. This court granted a certificate of
appealability for the consolidated appeals asking the parties
to address whether Adams has a debatable claim that his sen‐
tence is illegal. Adams v. United States, No. 16‐2177 (7th Cir.
Jan. 13, 2017) (Appellate R. 12).
Because there are so many district court and appellate
court decisions, and because our opinion ultimately rests on
a procedural ground regarding the order and opportunities
presented through each appeal, we present them as follows in
a chart:
6 Nos. 16‐2177, 16‐3578, 16‐4207
Relevant holding or out‐
Court Date No. come
S.D.Ill. 12‐15‐08 04cr30029drh Conviction for posses‐
sion, distribution, money
laundering & escape
CTA7 10‐25‐10 08‐4205 Vacated money launder‐
ing and remanded for re‐
sentencing (first direct ap‐
peal)
S.D.Ill. 5‐12‐11 04cr30029drh Resentenced on remain‐
ing counts of conviction
CTA7 12‐8‐11 11‐2111 Affirmed sentences (sec‐
ond direct appeal)
S.D.Ill. 12‐3‐13 13cv170drh §2255 motion to vacate
sentence denied
CTA7 6‐12‐14 14‐1010 Request for certificate of
appealability denied
S.D.Ill. 4‐26‐16 13cv170drh Motion to reopen under
60(b) denied
S.D.Ill. 8‐8‐16 13cv170drh Motion to reconsider de‐
nial under 60(b)denied
S.D.Ill. 12‐7‐16 13cv170drh Second Motion to reopen
under 60(b) denied
CTA7 1‐13‐17 16‐2177, Granted certificate of ap‐
16‐3578 & pealability and & consoli‐
16‐4207 dated appeals in final 3
D.Ct. opinions.
Nos. 16‐2177, 16‐3578, 16‐4207 7
In this appeal, Adams presents only the denial of the first
60(b) motion (7th Cir. case No. 16‐2177, Appeal of
13cv170DRH, district court record No. 45, April 26, 2016). He
does not object to this court dismissing the appeal of the mo‐
tion to reconsider the denial of the motion under 60(b) (7th
Cir. case No. 16‐3578, Appeal of 13cv170DRH, District court
record No. 56, August 8, 2016), or the appeal of the second
motion to reopen under 60(b) (7th Cir. case No. 16‐4207, Ap‐
peal of 13cv170DRH, district court record No. 66, December
7, 2016).
We conclude that the district court was well within its dis‐
cretion to deny Adams’ Rule 60(b) motion to reopen his §2255
proceedings claiming ineffective assistance of counsel.
II.
A. Legitimate uses for Rule 60(b) and §2255 motions.
Not even an omniscient judge could anticipate the many
complexities that can come to pass in law and life. Rule 60,
therefore, “gives district courts the power and discretion to
modify their judgments when truly new facts come to light or
when the judge recognizes an error and believes it should be
corrected.” Kennedy v. Schneider Elec., 893 F.3d 414, 419 (7th
Cir. 2018). But as we have noted time and again, Rule 60(b)
provides relief only in the most “extraordinary situations
where a judgment is the inadvertent product of special cir‐
cumstances and not merely erroneous application of law.” Id.
(internal citations omitted). And a party invoking Rule 60(b)
must claim grounds for relief that could not have been used
to obtain a reversal by means of a direct appeal. Banks v. Chi‐
cago Bd. of Educ., 750 F.3d 663, 667 (7th Cir. 2014). Not only is
Rule 60(b) relief available only in extraordinary
8 Nos. 16‐2177, 16‐3578, 16‐4207
circumstances, but once a district court has denied that relief,
those “proceedings are subject to only limited and deferential
appellate review.” Gonzalez v. Crosby, 545 U.S. 524, 535 (2005).
We review a court’s decision to deny Rule 60(b) for an abuse
of discretion only. Pearson v. Target Corp., 893 F.3d 980, 984
(7th Cir. 2018). In short, Adams is swimming upstream.
Rule 60(b) relief is thus different than post‐conviction
relief under 28 U.S.C. §2255 which is meant to challenge a
sentence “upon the ground that the sentence was imposed in
violation of the Constitution, or laws of the United States, or
that the court was without jurisdiction to impose such
sentence, or that the sentence was in excess of the maximum
authorized by law, or is otherwise subject to collateral attack
… .” 28 U.S.C. §2255(a). Ordinarily a defendant has but one
chance at post‐conviction relief under 28 U.S.C. §2255 to set
aside or correct his sentence, except in the case of newly
discovered evidence or a new rule of retroactively applied
constitutional law—neither of which is at issue here. See 28
U.S.C. §2255(h). The Antiterrorism and Effective Death
Penalty Act requires a prisoner to receive the prior approval
of the Court of Appeals before filing a second or successive
motion under §2255. See 28 U.S.C. §2255 (h); Nunez v. United
States, 96 F.3d 990, 991 (7th Cir. 1996). “No matter how
powerful a petitioner’s showing, only this [appellate] court
may authorize the commencement of a second or successive
petition. … From the district court’s perspective, it is an
allocation of subject‐matter jurisdiction to the court of
appeals. A district court must dismiss a second or successive
petition, without awaiting any response from the
government, unless the court of appeals has given approval
for its filing.” Nunez, 96 F.3d at 991 (emphasis in original).
Nos. 16‐2177, 16‐3578, 16‐4207 9
Therefore, if a Rule 60(b) motion is, in its essence, merely
asking for relief that one would ask for in a motion under
§2255, such a motion would be subject to the same restrictions
or requirements for successive habeas petitions. Gonzalez, 545
U.S. at 529–30. According to the Supreme Court, therefore, a
prisoner may not use a Rule 60(b) motion to “attack[] the fed‐
eral court’s previous resolution of a [habeas or §2255] claim
on the merits.” Id. at 532 (emphasis in original). Such an attack,
the court reasoned, is essentially just another claim for post‐
conviction relief. Id. As the Supreme Court explained in Gon‐
zalez:
First, any claim that has already been
adjudicated in a previous petition must be
dismissed. § 2244(b)(1). Second, any claim that
has not already been adjudicated must be
dismissed unless it relies on either a new and
retroactive rule of constitutional law or new
facts showing a high probability of actual
innocence. § 2244(b)(2). Third, before the
district court may accept a successive petition
for filing, the court of appeals must determine
that it presents a claim not previously raised
that is sufficient to meet § 2244(b)(2)’s new‐rule
or actual‐innocence provisions.
Gonzalez, 545 U.S. at 529–30 (emphasis in original). A prisoner
could, however, file a viable 60(b) motion after a failed §2255
attempt, if his claim is that a procedural error precluded him
from receiving a determination on the merits—for example, a
claim that the federal court misapplied a statute of limitations,
errantly determined that a party had failed to exhaust, or a
claim of fraud on the court. Id. at 532 & n.4, 5. See also, Bradley
10 Nos. 16‐2177, 16‐3578, 16‐4207
v. Lockett, 549 F. Appx. 545, 550–52 (7th Cir. 2013).2 In short,
no matter what label a litigant gives to the motion, any post‐
judgment motion in a criminal proceeding that falls within
the scope of §2255 is considered a motion under §2255. See
Melton v. United States, 359 F.3d 855, 857 (7th Cir. 2004). In
other words, if it looks like a successive §2255 motion, it is a
successive §2255 motion even if it is dressed in Rule 60(b)
clothing. Thus when a petitioner has already been heard in
post‐conviction proceedings and then attempts to reopen
those proceedings by moving under Rule 60(b), the district
court’s first task is to determine whether the petitioner “has
in reality filed an unauthorized second or successive peti‐
tion.” Ramirez v. United States, 799 F.3d 845, 850 (7th Cir. 2015).
Otherwise Rule 60 could be used to circumvent the statutory
limitation on successive motions under §2255. See Gonzalez,
545 U.S. at 531–32.
B. The legal and procedural significance of Adams’ §2255
motion and subsequent 60(b) motion.
Because the resolution of this case hinges on the determi‐
nation of whether Adams filed a legitimate Rule 60(b) motion
or an unauthorized second motion under §2255, we must look
to see what exactly Adams argued and the district court de‐
cided in the decision denying Adams’ §2255 motion. Adams v.
U.S., No. 13‐cv‐170‐DRH, (Dec. 3, 2013) (§2255 R. at 20)
(“§2255 Decision”). In that motion, Adams argued, among
other things, that his counsel was ineffective for failing to
2 Abandonment by counsel might qualify as a procedural defect. See
Ramirez v. United States, 799 F.3d 845, 854 (7th Cir. 2015). Adams did not
make this claim below and specifically concedes that he is not bringing the
claim here. See (Adams’ Reply Brief at 17). He claims that it is merely an
“equity favoring his Rule 60(b) motion.” Id. at 17–19.
Nos. 16‐2177, 16‐3578, 16‐4207 11
challenge the district court’s finding that his prior California
drug offense qualified as a controlled substance offense pur‐
suant to U.S.S.G. §4B1.2(b), and that the court had relied on
the incorrect charging document in determining that he was
a career offender. (§2255 R. 1 at 30‐35).
In order to understand Adams’ claim of ineffectiveness of
counsel, we need to take even one step further back and note
that under U.S.S.G. §4B1.1, a defendant is considered to be a
career offender if he “has at least two prior felony convictions
of either a crime of violence or a controlled substance.”
U.S.S.G. §4B1.1(b).
The term “controlled substance offense” means
an offense under federal or state law, punisha‐
ble by imprisonment for a term exceeding one
year, that prohibits the manufacture, import, ex‐
port, distribution, or dispensing of a controlled
substance (or a counterfeit substance) or the
possession of a controlled substance (or a coun‐
terfeit substance) with intent to manufacture,
import, export, distribute, or dispense.
U.S.S.G. §4B1.2(b).3 When looking to see whether a prior
crime meets the Guidelines’ definition, we look at the crime
categorically. That is, we look only at the elements of the of‐
fense and not the facts underlying the conviction. Descamps v.
United States, 570 U.S. 254, 261 (2013); United States v. Mancil‐
las, 880 F.3d 297, 303 (7th Cir. 2018) (applying the categorical
approach to prior offenses for Guidelines calculations). Alt‐
hough if a statute is divisible—that is, it contains alternative
3 Because Adams was sentenced in 2008, we refer to the Guidelines
from that year, which, it turns out, are identical to the current Guidelines.
12 Nos. 16‐2177, 16‐3578, 16‐4207
elements of the crime—a court may review certain limited
record materials, such as charging papers and plea agree‐
ments, to discover which of the enumerated alternatives
played a part in the defendant’s prior conviction. United States
v. Enoch, 865 F.3d 575, 579–80 (7th Cir. 2017), cert. denied, 138
S. Ct. 1015 (2018), citing Shepard v. United States, 544 U.S. 13,
16 (2005). The permissible documents are sometimes referred
to as “Shepard documents,” after this latter Supreme Court
case which elucidated them. Shepard, 544 U.S. at 16; see also
Enoch, 865 F.3d at 580. For purposes of this review, Adams
concedes that the sentencing court was entitled to rely on
Shepard documents to determine whether his crime qualified
as a controlled substance offense under the Guidelines. See
(Adams’ Brief at 26‐27). 4
Adams argues, however, that the district court in both his
initial sentencing and then again on remand for re‐sentencing,
did not rely on a proper Shepard document, and that, his coun‐
sel was ineffective for not objecting to the error. Adams points
out that the sentencing judge looked at the California “Com‐
plaint” rather than the California “Second Amended Infor‐
mation.” As a technical matter, Adams is correct. The court
looked at the wrong document and Adams’ counsel failed to
object to this error. It turns out, however, that the charges in
the two documents were identical. Both state:
On or about January 24, 1996, QUAWNTAY
ADAMS did unlawfully sell, furnish,
4 Adams argues that the California crime was not a divisible one, but
that even if it was, the district court referred to the incorrect Shepard doc‐
uments. He concedes, for purposes of this appeal, that counsel was not
ineffective for failing to make that argument and thus it need not be de‐
cided here.
Nos. 16‐2177, 16‐3578, 16‐4207 13
administer, and give away, and offered to sell,
furnish, administer, and give away controlled
substances, to wit: cocaine base, in violation of
HEALTH AND SAFETY CODE SECTION
11352(a).
See (§2255 R. 78; R. 78‐1).5 Had Adams’ counsel objected to
the reference to the Complaint, the court merely would have
turned to the identically worded Second Amended Infor‐
mation and the result would have been the same. This is pre‐
cisely what the §2255 court concluded—that Adams did “not
provide an argument as to how [the Second Amended Infor‐
mation] would demonstrate that his conviction does not qual‐
ify as a controlled substance offense.” (§2255 R. 20 at 25, n.6).
And Adams’ counsel could not have been ineffective for fail‐
ing to raise an argument that would have had no impact on
the result whatsoever.
Adams’ second argument in his §2255 motion alleged that
his counsel was ineffective for failing to argue that his prior
conviction fell outside of the definition of a “controlled sub‐
stance offense” as described in the Guidelines. As we noted
earlier, in order to count as a controlled substance offense un‐
der the Guidelines, the state crime must align with the defini‐
tion of a controlled substance offense under the federal
Guidelines. Adams argued in his §2255 motion that the Cali‐
fornia statute under which he was convicted did not so align.
Specifically, Adams argued that the California statute also
criminalized mere “transportation” of controlled substances
5 The only difference between the two documents is that the Second
Amended Information contained a comma after “1996,” and the Com‐
plaint did not.
14 Nos. 16‐2177, 16‐3578, 16‐4207
as well as possession and distribution of them, while the
Guidelines do not count “transportation” as a controlled sub‐
stance offense.6 And because, under a categorical approach, a
court cannot know in which conduct Adams participated un‐
der the California statute, the district court could not be sure
that he had met the definition of a controlled substance of‐
fense as described in the Guidelines. In other words, he ar‐
gued, we cannot look behind the face of the offense to see
whether he merely transported cocaine as opposed to selling
it. See Descamps, 133 S. Ct. at 2283. Therefore, Adams argued,
the government failed to carry its burden and prove that he
had pled guilty to selling cocaine or any of the other require‐
ments in U.S.S.G. §4B1.2, and his counsel was therefore inef‐
fective for failing to make this argument.
In his Rule 60(b) motion and now on appeal, Adams
makes the same argument about “offers to sell” drugs that he
made about transporting them—that is, that his lawyers were
ineffective for failing to argue that his California conviction
could have been merely for “offering to sell” cocaine, which
6 The California statute under which Adams was convicted states, “(a)
Except as otherwise provided in this division, every person who trans‐
ports, imports into this state, sells, furnishes, administers, or gives away,
or offers to transport, import into this state, sell, furnish, administer, or
give away, or attempts to import into this state or transport (1) any con‐
trolled substance specified in subdivision (b), (c), or (e), or paragraph (1)
of subdivision (f) of Section 11054, specified in paragraph (14), (15), or (20)
of subdivision (d) of Section 11054, or specified in subdivision (b) or (c) of
Section 11055, or specified in subdivision (h) of Section 11056, or (2) any
controlled substance classified in Schedule III, IV, or V which is a narcotic
drug, unless upon the written prescription of a physician, dentist, podia‐
trist, or veterinarian licensed to practice in this state, shall be punished by
imprisonment pursuant to subdivision (h) of Section 1170 of the Penal
Code for three, four, or five years. Cal. Health & Safety Code § 11352.
Nos. 16‐2177, 16‐3578, 16‐4207 15
would not have qualified as a controlled substance offense
under the Guidelines. But Adams concedes for purposes of
this argument that the sentencing court was entitled to look
beyond the face of the conviction, and both the Complaint and
the Second Amended Information made it clear that Adams
“did unlawfully sell … and offered to sell … cocaine base.”
(§2255 R. 78 & 78‐1). Therefore, a court need not determine
whether mere “offers to sell” qualify as controlled substance
offenses under the Guidelines because the sentencing court
correctly determined that Adams was also convicted of selling
cocaine which is indisputably a controlled substance offense
under the Guidelines.
But even if we were required to delve into this topic, we
would note that the Ninth Circuit has held that “offering to
sell” a controlled substance under the California statute is a
controlled substance offense for purposes of the Guidelines.
United States v. Wade, 717 F. Appʹx 656, 658 (9th Cir. 2017) (not‐
ing that the defendant “was convicted of selling and offering
to sell cocaine base” and that “[b]oth of those offenses are con‐
trolled substance offenses”); United States v. Lee, 704 F.3d 785,
790 n.3 (9th Cir. 2012) (noting that under the law of that circuit
solicitation or “offering to sell” qualifies as a controlled sub‐
stance offense.); United States v. Shumate, 329 F.3d 1026, 1032
(9th Cir.), amended on denial of rehʹg, 341 F.3d 852 (9th Cir.
2003) (“solicitation is also enough to dub his conviction a
predicate offense for the purposes of USSG § 4B1.1.”).7
7 Adams argues that there are conflicting cases in the Ninth Circuit on
the issue of whether “offering to sell” is a controlled substance offense un‐
der the Guidelines, citing United States v. Martinez‐Lopez, 864 F.3d 1034,
1038 (9th Cir.), cert. denied, 138 S. Ct. 523 (2017). In another case however,
the Ninth Circuit explained that cases involving the aggravated felony
16 Nos. 16‐2177, 16‐3578, 16‐4207
In denying Adams’ §2255 motion, the district court re‐
jected Adams’ claim on the merits, noting that both the dis‐
trict court at sentencing and this court on direct appeal con‐
sidered the language of the Complaint (which is identical to
that in the Second Amended Information) itself and deter‐
mined that Adams did “sell, furnish, administer, and give
away … cocaine base.” §2255 decision at 25; Adams, 451 F. Ap‐
pʹx at 579. Thus both the district court and the Seventh Circuit
reasonably concluded that Adams was charged with “the dis‐
tribution and attempted distribution of a narcotic,” and there‐
fore he had committed a crime under “state law … that pro‐
hibits the … distribution … of a controlled substance” as de‐
scribed in U.S.S.G. §4B1.2(b). Adams, 451 F. App’x at 579. And
because the court complied with its obligation to ascertain the
nature of the prior offense, the district court, considering the
motion for relief under §2255, concluded that Adams’ counsel
could not have been ineffective for failing to raise this argu‐
ment.
This was a long explanation of an order that is not techni‐
cally before us today—the denial of Adams’ motion under 28
U.S.C. §2255. But we must consider it in order to decide
whether Adams’ Rule 60(b) motion was merely attacking the
merits of the §2255 decision or raised a defect in the proceed‐
ings that is properly cognizable under Rule 60(b). See Gonza‐
lez, 545 U.S. at 532. Adams, after all, has already appealed the
denial of the §2255 motion to this court and lost. United States
provisions of the immigration‐related Guidelines, such as those at issue in
Martinez‐Lopez, are not equivalent to cases involving the career offender
provision of the Guidelines, as the former are constrained by other statutes
addressing immigration, while the latter is not. See Shumate, 329 F.3d at
1030 n.5.
Nos. 16‐2177, 16‐3578, 16‐4207 17
v. Adams, No. 14‐1010 (7th Cir. June 12, 2014) (Appellate R.
14). It was at that point that Adams moved the district court,
under Federal Rule of 60(b) to reopen the matter. And thus
we are back to where we began—reminding Adams that Rule
60(b) can only be used in extraordinary circumstances and
that we defer to the district court’s discretion in granting or
denying such a motion. And a litigant’s failure to raise an is‐
sue on appeal is not an “extraordinary” event that justifies re‐
lief under Rule 60(b). Hill v. Rios, 722 F.3d 937, 938–39 (7th Cir.
2013).
C. The district court correctly determined that the 60(b)
motion was, in actuality, an attack on the merits.
The district court, ruling on the Rule 60(b) motion, found
that Adams’ motion to reopen under Rule 60(b) in reality was
simply “another attack on his sentence and the approach
taken in factoring in his prior convictions,” and yet another
duplicative claim of ineffective assistance of counsel. (§2255
R. 45 at 3). Consequently, the district court concluded that Ad‐
ams had not alleged a defect in the proceedings but rather his
“pleadings clearly represent a successive and unauthorized
§2255 petition.” Id. We see no reason to disrupt the district
court’s reasonable conclusion.
In the Rule 60(b) motion that we review here, Adams chal‐
lenged his career offender status and made additional claims
of ineffective assistance of counsel. He argued first that his
counsel was ineffective for failing to object to the fact that the
district court consulted the wrong California documents to
determine if he was a career offender. Second, he argued that
his counsel was ineffective for failing to argue to the district
court and the court of appeals that his prior offense under Cal‐
ifornia law for selling cocaine fell outside of the definition of
18 Nos. 16‐2177, 16‐3578, 16‐4207
a “controlled substance offense” under the Guidelines. But
the district court considered and rejected both of these argu‐
ment in the §2255 proceeding, concluding that his attorneys
were not ineffective and that any error about which of the two
identically worded charging documents to consult would be
harmless. (§2255 R. 20 at 25 & n.6).
1. The §2255 court addressed the issue regarding the Shepard
documents error.
We can address the issue of the charging documents with
some haste. Adams makes much ado about the fact that the
district court used the California Complaint rather than the
Second Amended Information as the Shepard document to de‐
termine that Adams was convicted of a crime—selling co‐
caine—that qualified as a controlled substance offense under
the Guidelines. He claims that his counsel was ineffective for
failing to raise the issue. However, the district court already
considered and rejected this claim in its §2255 decision. The
§2255 district court concluded that:
Adams argues the Court should have instead
looked to a “second amended information.” No‐
tably, it does not appear that Adams has pro‐
vided the Court with the alleged second
amended information and regardless he does
not provide an argument as to how it would
demonstrate that his conviction does not qualify
as a controlled substance offense.
(§2255 R. 20 at 25, n.6). We need not determine whether the
district court improperly placed the burden on Adams to pro‐
duce the document. The court properly concluded that Ad‐
ams did not point to any reason why the document would be
Nos. 16‐2177, 16‐3578, 16‐4207 19
relevant, and indeed, it turns out that it would not have
been—the Second Amended Information was identical in
wording to the Complaint upon which the court did rely. See
(§2255 R. 78; R. 78‐1). It is abundantly clear that it would not
have helped Adams in the slightest. Had counsel recognized
the issue at trial, and the court turned to the Second Amended
Information, it would have inevitably come to the same con‐
clusion—Adams had a prior state court conviction for selling
cocaine. Adams’ counsel cannot have been ineffective for fail‐
ing to raise an argument that would have had no effect what‐
soever on the outcome. Thus Adams’ reliance on United States
v. Hicks, 122 F.3d 12 (7th Cir. 1997), is inapt. Although the
court in Hicks reversed where the district court relied on the
incorrect charging document, in that case the two documents
were significantly different and reliance on the incorrect one
made a difference as to whether the defendant could be found
to have been convicted previously of a violent crime. Id. at 12–
13. In this case it undoubtedly does not. Most importantly, the
district court on §2255 review already considered this argu‐
ment and rejected it. Adams cannot resurrect it in a Rule 60(b)
motion.
2. The §2255 decision addressed the arguments regarding
Adams’ prior offense as a controlled substance offense.
Adams’ second complaint about a “defect in the proceed‐
ings” was that his counsel was ineffective for failing to argue
that “offering to sell” cocaine was not a controlled substance
offense under the Guidelines. But the district court, consider‐
ing the §2255 motion, clearly held, on the merits, after consid‐
ering the facts, that Adams’ attorneys “were not ineffective”
and thus his claim had no merit. (§2255 R. 20 at 25). In his brief
before this court, Adams admits that this was the court’s
20 Nos. 16‐2177, 16‐3578, 16‐4207
holding (Adams’ Brief at 35), but states that he “never had the
merits of the issue addressed properly.” Id. at 36. In essence
he argues, not that the district court failed to reach the merits,
but rather that it did so improperly. This is an “attack[] [on]
the federal court’s previous resolution of a claim on the mer‐
its,” and thus prohibited territory for a Rule 60 motion. Gon‐
zalez, 545 U.S. at 532. Adams may have titled his motion one
made pursuant to Rule 60(b), but that did not alter the fact it
was, in fact, a motion attacking the prior judgment on the
merits. And, as we just noted, no matter how it is titled, a dis‐
trict court lacks jurisdiction to hear a §2255 motion unless the
circuit court has issued a certificate of appealability. United
States v. Scott, 414 F.3d 815, 817 (7th Cir.2005).
a. The argument was indeed the same as the one in the
§2255 proceedings.
Adams claims that this was not an attack of the §2255 de‐
cision on the merits because “[h]is lawyer made one argument
on appeal and lost. Mr. Adams made a different argument as
part of an ineffective‐assistance‐of‐counsel claim in the §2255
proceeding.” (Adams’ Reply Brief at 15). This argument is a
bit muddled, but we take it to mean that he claims that the
argument about whether “transporting” cocaine is not a con‐
trolled substance offense under the Guidelines (which his
lawyer raised in his second direct appeal and lost) is different
from the argument that “offering to sell” cocaine is not a con‐
trolled substance offense (which, he argues, his lawyer should
have brought but ineffectively failed to do so). He is not re‐
litigating a claim he lost on the merits, he argues, but rather,
he is making a different ineffective assistance of counsel
claim. See (Adams’ Reply Brief at 15).
Nos. 16‐2177, 16‐3578, 16‐4207 21
These are not, however, different claims. And even if we
misunderstand the exact nature of Adams’ somewhat confus‐
ing argument, the barrier to all of Adams’ claims about the
nature of the underlying California offense is that the §2255
court looked at the language of the charge of conviction
(which Adams concedes it was entitled to do) and determined
that Adams had been convicted of selling cocaine. The under‐
lying conviction stated: “Quawntay Adams did unlawfully
sell, furnish, administer, and give away, and offered to sell,
furnish, administer, and give away controlled substances, to
wit: cocaine base.” (§2255 R. 78‐1) (emphasis ours).8 Based on
this language, the court found that there was no open ques‐
tion as to whether Adams may have been merely “transport‐
ing” cocaine. This also means, of course, that there was no
open question as to whether Adams may have been merely
“offering to sell” cocaine. The §2255 court determined that
Adams had been charged with and found guilty of selling co‐
caine in California, a controlled substance offense. Both argu‐
ments were actually subsumed in the district court’s ruling on
the §2255 motion that his prior conviction for selling cocaine
fell within the “controlled substance offense” definition in the
Guidelines. Therefore any attack using either of those argu‐
ments or any other argument about what Adams might have
been doing in California is merely a second attack on the mer‐
its.
8 Once again, we note that the court looked at the incorrect Shepard
document (the Complaint), but had it looked at the correct one (the Second
Amended Information), it would have seen the identical charging lan‐
guage.
22 Nos. 16‐2177, 16‐3578, 16‐4207
b. There was no procedural defect in the §2255 proceedings.
Adams attempts to paint his Rule 60(b) claim as one re‐
garding the court’s defective procedure, as opposed to a claim
that the court erred in its determination on the merits. Adams
argues that the district court “used law of the case doctrine”
to determine that any claim of ineffective assistance would
necessarily fail. Adams objects to the fact that the district
court, in considering the §2255 motion, relied upon the lan‐
guage in our prior decision affirming his re‐sentencing on re‐
mand, to determine that Adams’ underlying claim had no
merit and that his lawyers therefore could not have been in‐
effective for failing to raise it. And, on top of that, Adams ar‐
gues, that the conclusion by this court in the appeal from the
remand was mere dicta and thus was never really considered
by this court or therefore the district court in the §2255 matter.
In short, Adams appears to be arguing that the fact that the
district court in the §2255 motion adopted the reasoning of a
prior Seventh Circuit decision in his case, meant that it “used
the law of the case doctrine to determine that any claim of in‐
effective assistance would necessarily fail.” (Adams’ Brief at
34).
The fact that a district court relies on the reasoning of a
court of appeals or vice versa does not mean that the court
considers itself locked into the other opinion by “law of the
case.” In the interest of efficiency and for the sake of not rein‐
venting the wheel, courts often quote language from other
courts and adopt the reasoning therein. See, e.g., In re Taylor,
793 F.3d 814, 818 (7th Cir. 2015) (adopting “the sound reason‐
ing of the district court.”); Natʹl Athletic Sportswear, Inc. v.
Westfield Ins. Co., 528 F.3d 508, 510 (7th Cir. 2008) (“Because
the district court issued a thorough and well‐reasoned
Nos. 16‐2177, 16‐3578, 16‐4207 23
opinion and order that does not contain any error, we adopt
the district court’s opinion and order dated November 5,
2007, as our own”). Decisions in which one court adopts the
reasoning of another are too common to cite. The district court
did not state that was it was locked into this court’s earlier
finding that his counsel had not been ineffective. The district
court merely agreed with our earlier finding and cited our
language as reasoning.
And although this court found that Adams had waived
the argument and considered this argument in the alternative,
we cannot say that it was mere “dicta” written without “full
and careful consideration” as Adams argues. (Adams’ Brief at
29). We addressed Adams’ argument about the nature of the
offense, considered it fully and then rejected it on the merits.
Adams, 451 App’x at 579. The district court adopted its con‐
clusion. (§2255 R. 20 at 25). Adams’ arguments in his Rule
60(b) motion, therefore, constitute an impermissible attack on
the merits of a decision in the §2255 order.
In sum, the district court, when considering the §2255 mo‐
tion, concluded that Adams’ California conviction for selling
cocaine was an act clearly covered under the Guidelines’ def‐
inition of a controlled substance offense in §4B1.2(b). It also
considered what would have happened had the sentencing
court referred to the Second Amended Information rather
than Felony Complaint in making that determination. These
matters were considered by the court in the §2255 decision.
The district court determined that any attempt to re‐argue
them constituted an unauthorized successive §2255 motion
which the district court did not have the jurisdiction to hear.
Adams is not, of course, the first to attempt to portray an
attack on the merits as one of defective procedure to skirt the
24 Nos. 16‐2177, 16‐3578, 16‐4207
restrictions on successive attempts at post‐conviction relief.
We considered just this issue in Bradley, where a habeas peti‐
tioner sought relief under 60(b) for what he claimed to be a
procedural error. Bradley v. Lockett, 549 F. App’x 545 (7th Cir.
2013). In his habeas petition, Bradley, like Adams, claimed he
was misclassified as a career offender. In dismissing his claim,
the district court held that his claim was not cognizable be‐
cause it was below the statutory maximum. Id. at 548. It turns
out, however, that the court was wrong. Id. Nevertheless, this
court determined that Rule 60(b) could not be used to correct
the legal error. Id. at 549. Quoting the Supreme Court in Gon‐
zalez, the Bradley court concluded:
“alleging that the court erred in denying habeas
relief on the merits is effectively indistinguisha‐
ble from alleging that the movant is, under the
substantive provisions of the statutes, entitled
to habeas relief.” … In short, the prior panel’s
decision with respect to Mr. Bradley’s § 2241
motion was a “determination that there ... do
not exist grounds entitling [Mr. Bradley] to ha‐
beas corpus relief.”
Id. at 551–52 (quoting Gonzalez, 545 U.S. at 532 & n.4). And for
a similar reason, Adams’ reliance on Ramirez, 799 F.3d 845,
does not support his cause. In that case, this court allowed
Ramirez’s 60(b) claim to move forward because he alleged a
procedural error that precluded a ruling on the merits—his
attorney abandoned him after the §2255 proceedings, thus
preventing him from pressing his ineffective assistance argu‐
ment on appeal. Id. at 854. In short, when a district court re‐
solves a claim on the merits, even if it does so errantly, a
Nos. 16‐2177, 16‐3578, 16‐4207 25
petitioner cannot use Rule 60(b) to attack the resolution on the
merits, only to rectify procedural defects.
D. Any potential error about the right to counsel was harm‐
less.
This leaves us with one final loose end to tie. As part of its
ruling denying the first motion under Rule 60(b), the district
court rejected Adams’ claim that his lack of counsel during
the §2255 proceedings gave him grounds to reopen under
Rule 60(b). The district court erred by relying on a rigid rule
that because §2255 proceedings are civil, there is no
constitutional right to counsel and thus no ability to challenge
the effectiveness of one’s §2255 counsel. (§2255 R. 45 at 5). As
we noted in Ramirez, 799 F.3d at 848, this would have been
correct before the Supreme Court’s decisions in Trevino v.
Thaler, 569 U.S. 413, 429 (2013); and Martinez v. Ryan, 566 U.S.
1, 9 (2012). Those two decisions, however, have changed how
courts should view claims of ineffective assistance of counsel
at initial‐review collateral proceedings. Ramirez, 799 F.3d at
848. The error is inconsequential, however, because the
district court found that Adams adequately presented his
arguments in his initial §2255 motion and the court addressed
each of those arguments, making the Rule 60(b) motion
duplicative of the §2255 proceeding and leaving the district
court without jurisdiction to hear it.
III.
In conclusion, the district court properly concluded that
Adams’ Rule 60(b) motion was merely an unauthorized suc‐
cessive §2255 motion. The district court therefore had no ju‐
risdiction to consider any of Adams’ claims further. The deci‐
sion of the district court is AFFIRMED.