At page 770 Determining whether a petition constitutes a decision on the merits20 citing cases“the essential point is that a prisoner is entitled to one unencumbered opportunity to receive a decision on the merits.”
- Barnes v. Briley, 43 F. App'x 969 (7th Cir. 2002).unpublished (essential point is that a prisoner is entitled to one unencumbered opportunity to receive a decision on the merits)
- Warren v. State of Wisconsin, No. 2:24-cv-01349 (E.D. Wis. Oct. 23, 2024).Potts v. United States, 210 F.3d 770, 770 (7th Cir. 2000).
- Stefan Gauthier v. United States, 2024 DNH 038 (D.N.H. 2024).publishedSee, e.g., Williams, 91 F.4th at 1258 -59 (citing cases); United States v. Raymond, 815 F. App’x 144 , 147 (9th Cir. 2020); United States v. Rejda, 790 F. App’x 900 , 905 (10th Cir. 2019); In re Moore, 735 F. App’x 883 , 887 (6th Cir. 2018…
- Gauthier v. United States, No. 1:23-cv-00507 (D.N.H. May 9, 2024).See, e.g., Williams, 91 F.4th at 1258 -59 (citing cases); United States v. Raymond, 815 F. App’x 144 , 147 (9th Cir. 2020); United States v. Rejda, 790 F. App’x 900 , 905 (10th Cir. 2019); In re Moore, 735 F. App’x 883 , 887 (6th Cir. 2018…
- Antoine Williams v. United States, 91 F.4th 1256 (8th Cir. 2024).publishedSee Thai v. United States, 391 F.3d 491, 495 (2d Cir. 2004) (per curiam); Potts v. United States, 210 F.3d 770, 770 (7th Cir. 2000).
- Trujillo v. United States, No. 2:23-cv-00196 (D.N.M. July 11, 2023).A withdrawn § 2255 motion triggers the bar on successive claims if the petitioner had an “opportunity to receive a decision on the merits” but “flinched, seeing the handwriting on the wall.” Id. (quoting Potts v. United States, 210 F.3d 77…
- McPherson v. United States, No. 1:19-cv-08635 (S.D.N.Y. May 28, 2020).Here, the timing of McPherson’s withdrawal, “strongly suggest[s] that, after Beckles, Petitioner saw ‘the writing on the wall.’” Stevenson, 2017 WL 3699309 , at *2 (quoting Potts v. United States, 210 F.3d 770, 770-71 (7th Cir. 2000)).
- McPherson v. United States, No. 1:19-cv-11036 (S.D.N.Y. May 28, 2020).Here, the timing of McPherson’s withdrawal, “strongly suggest[s] that, after Beckles, Petitioner saw ‘the writing on the wall.’” Stevenson, 2017 WL 3699309 , at *2 (quoting Potts v. United States, 210 F.3d 770, 770-71 (7th Cir. 2000)).
- Rogers v. United States, No. 2:19-cv-02316 (C.D. Ill. Apr. 1, 2020).Potts v. United States, 210 F. 3d 770, 770 (7th Cir. 2000).
- Creighton v. Watson, No. 2:19-cv-00585 (S.D. Ind. Jan. 17, 2020).“The essential point is that a prisoner is entitled to one unencumbered opportunity to receive a decision on the merits.” Potts v. United States, 210 F.3d 770, 770 (7th Cir. 2000).
Show 10 more citing cases
- United States v. Rejda, 790 F. App'x 900 (10th Cir. 2019).unpublished Hence, although the final resolution of the matter was not set in concrete at the time the motion to withdraw was filed, there was nonetheless some rather 8 closest decision from another circuit is Potts v. United States, 210 F.3d 770, 770…
- United States v. Ramos, No. 18-1316 (10th Cir. Jan. 3, 2019).unpublishedFor example, in a trio of cases in the Seventh Circuit, that court twice concluded that the circumstances supported counting the voluntarily-withdrawn § 2255 motion as a first motion for second or successive purposes, see Potts v. United S…
- United States v. Jordan, No. 3:18-cv-50115 (N.D. Ill. Apr. 2, 2018).In addressing this issue, the Seventh Circuit has said: “The stringent limitations that the Antiterrorism and Effective Death Penalty Act places on the filing of a second or successive petition...under 28 U.S.C. § 2255 make it vital to det…
- Sweeney v. United States Parole Comm'n, 197 F. Supp. 3d 78 (D.D.C. 2016).publishedApr. 7, 2015) (quoting Potts v. United States, 210 F.3d 770, 770 (7th Cir.2000)), aff'd, No. 15-2089 (7th Cir. Dec. 15, 2015).
- David Thai v. United States, 391 F.3d 491 (2d Cir. 2004).publishedPotts v. United States, 210 F.3d 770, 770-71 (7th Cir.2000) (“[Petitioner] appears to have realized ... that in light of the government’s brief in opposition, the motion was doomed....
- United States ex rel. Rickard v. Sternes, 149 F. Supp. 2d 437 (N.D. Ill. 2001).published(noting that a prisoner is entitled to only one opportunity for collateral review on the merits)
- United States ex rel. Rickard v. Roth, 108 F. Supp. 2d 1017 (N.D. Ill. 2000).published See Potts v. United States, 210 F.3d 770, 770 (7th Cir.2000) (emphasis added).
- Geasland v. United States, No. 3:19-cv-00018 (W.D. Wis. Dec. 13, 2019).(section 2255 petitioner cannot avoid second-or-successive-petition bar by withdrawing first petition after he becomes aware that petition will be denied on the merits)
- In re Willie Moore, No. 17-4001 (6th Cir. May 30, 2018).unpublished(holding that a petitioner’s voluntary withdrawal of a prior petition after receiving a strongly-argued government response brief, conferring with his attorney, and apparently realizing the petition was “doomed” rendered…)
- Vitrano v. United States, 643 F.3d 229 (7th Cir. 2011).published([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.)
At page 771 Voluntary dismissal after realizing motion will fail8 citing casesholding that the first motion counted because the movant withdrew it after “seeing the handwriting on the wall” that his motion would fail on the merits
- Lyle v. United States Do not docket in this case. File only in 4:02-cr-616., 506 F. Supp. 3d 496 (S.D. Tex. 2020).published(holding that the first motion counted because the movant withdrew it after “seeing the handwriting on the wall” that his motion would fail on the merits)
- Kyles v. Buesgen, No. 2:20-cv-00077 (E.D. Wis. Nov. 5, 2020).In contrast, the Seventh Circuit listed examples of petitions that would count for purposes of §2244(b), such as a petition denied on its merits, citing In re Page, 179 F.3d 1024, 1025 (7th Cir. 1999); a petition voluntarily dismissed in t…
- United States v. Rejda, 790 F. App'x 900 (10th Cir. 2019).unpublished Hence, although the final resolution of the matter was not set in concrete at the time the motion to withdraw was filed, there was nonetheless some rather 8 closest decision from another circuit is Potts v. United States, 210 F.3d 770, 770…
- Washington v. United States, 834 A.2d 899 (D.C. 2003).published See id. at 488-489 , 106 S.Ct. 2639 ; see also McCleskey, 499 U.S. at 494 , 111 S.Ct. 1454 . [11] See, e.g., Thomas, 772 A.2d at 824 ; Matos, 631 A.2d at 30 ; Vaughn, 600 A.2d at 97 . [12] See, e.g., Potts v. United States, 210 F.3d 770, 7…
- Lewis Altman, Jr., Applicant v. Daniel J. Benik, 337 F.3d 764 (7th Cir. 2003).published So, petitions that have been denied on the merits, see, e.g., In re Page, 179 F.3d 1024, 1025 (7th Cir. 1999), that the petitioner voluntarily dismisses in the face of an imminent loss, Potts v. United States, 210 F.3d 770, 771 (7th Cir. 2…
v.
UNITED STATES of America, Respondent-Appellee
The stringent limitations that the Anti-terrorism and Effective Death Penalty Act places on the filing of a second or successive petition for habeas corpus (or its federal prisoner’s counterpart, a motion under 28 U.S.C. § 2255) make it vital to determine whether a previous petition (or motion) was “the real thing” that ought to subject the petitioner or movant to those limitations. The essential point is that a prisoner is entitled to one unencumbered opportunity to receive a decision on the merits. The polar cases that elucidate this principle are easy: where the petition was not accepted for filing, e.g., Stewart v. Martinez-Villareal, 523 U.S. 637, 643-45, 118 S.Ct. 1618, 140 L.Ed.2d 849 (1998); O’Connor v. United States, 133 F.3d 548 (7th Cir.1998); Benton v. Washington, 106 F.3d 162 (7th Cir.1996); In re Moore, 196 F.3d 252, 255 (D.C.Cir.1999), and where the petition was rejected on the merits. E.g., In re Page, 179 F.3d 1024, 1025 (7th Cir.1999); Bennett v. United States, 119 F.3d 470 (7th Cir.1997); Pratt v. United States, 129 F.3d 54, 60 (1st Cir.1997). Nesting within these extremes is a further division between cases in which the petitioner withdraws his petition before he has any reason to think it is going to be denied (maybe he realizes that because of lack of legal assistance he cannot articulate his legal claim) and cases in which he withdraws it when it becomes clear to him that it is indeed about to be denied. The first type of case is illustrated by Garrett v. United States, 178 F.3d 940 (7th Cir.1999) (per curiam), and Haro-Arteaga v. United States, 199 F.3d 1195 (10th Cir.1999) (per curiam), and the second by Felder v. McVicar, 113 F.3d 696 (7th Cir.1997). We must decide which of the two types the present case is closer to.
Potts’s first section 2255 motion was met by a brief in opposition arguing in detail that the motion lacked merit. Potts and his lawyer, after conferring about the merits, decided to withdraw the motion; a motion to dismiss was made and granted. We do not see how Potts’s 2255 motion could be thought an abortive filing, akin to Garrett, the case in which the movant[*771] withdrew his motion because he realized that, lacking as he did legal assistance, his motion failed to present his case. Potts was assisted by counsel, filed a competent motion, and then appears to have realized (though unlike Felder he did not acknowledge) that in light of the government’s brief in opposition, the motion was doomed. In these circumstances, it would be unrealistic to treat the dismissal as tantamount to a refusal to accept a filing because of formal deficiencies. He had his opportunity to receive a decision on the merits; he flinched, seeing the handwriting on the wall.
The district court, while noting that Potts had filed a previous 2255 motion, dismissed his present motion as untimely. The court should not have entertained the motion at all, because Potts had failed to demonstrate compliance with the conditions on the filing of a second or successive such motion. The motion was properly dismissed, but for the "wrong reason.
Affirmed.