USCA1 Opinion

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

appellee.

_________________________

brief, for

November 6, 1997
_________________________

SELYA,
SELYA,

Circuit Judge.
Circuit Judge.
_____________

Petitioner-appellant

David P.

Pratt,

who is

currently

serving a

federal

sentence, filed

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

(1994

and

Supp.

1996).1

Relying

on the

2255

Antiterrorism

and

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

110

Stat.

U.S.C.),

because

appeals.

1214 (1996)

the district

Pratt

(codified

court dismissed

had not

obtained

AEDPA's novelty,

peculiar circumstances of

sometimes recondite

AEDPA applies here

in scattered

the

clearance

together

BACKGROUND
BACKGROUND

of 28

petition pro
___

forma
_____

from the

with the

odd

the petitioner's case, take

legal trail.

In the end, we

court

of

timing and

us down a

conclude that

and that, properly construed, it bars Pratt's

attempt to prosecute a second habeas petition.

I.
I.

sections

In April of 1994, a

federal petit jury in the District

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

confiscated

mutilated

several

of

Pratt's

pig carcass.

firearms,

Weighing this

Pratt

and other

sent

him

evidence, the

jury found Pratt guilty of mailing a threatening communication in

violation of 18 U.S.C.

876 (1994).

and sentenced Pratt to a lengthy

The

judge departed upward

prison term.

The appeal period

____________________

1In terms, 28 U.S.C.

a

"petition," yet

describe

the

the vehicle

2255 speaks of a "motion" rather than

latter

word is

by which

post-conviction relief.

a person

more

held in

to

custody seeks

Although there may be occasions on which

the terms have different meanings, this is not

therefore,

commonly used

one of them; and,

we use the term "petition" throughout this opinion in

order to avoid
"section 2255

confusion.
petition,"

By the

same token, we use

"habeas petition,"

post-conviction relief" interchangeably.

the terms

and "petition

for

expired and Pratt's conviction became final.

After

notice

unsuccessfully moving

of appeal,

Pratt obtained

first section

2255 petition

violation

his

of

Sixth

requests,

his trial

Amendment

attorney had

to

fresh counsel

on March

assistance of counsel premised on a

pro se

9, 1995.

right

to

file a

and

tardy

filed his

He alleged

the

effective

claim that, despite repeated

failed

to perfect

a timeous

appeal of the conviction.

Pratt did not

attorney's performance at

trial was constitutionally

The district court granted the

vacated

the judgment, and

new appeal

period).

but to no

aver, however, that his

defective.

petition in an unpublished order,

resentenced Pratt (thus

Pratt's

new lawyer filed a

avail; a panel of this court

triggering a

timely appeal,

affirmed the conviction.

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

On January

2255 petition, this

the

ground

violated

assistance

dismissed

with

17, 1997,

his second

time seeking to set aside

that his

Pratt's

Pratt filed

original

Sixth

of counsel.

lawyer's

Amendment

On

April 8,

right

section

his conviction on

lack of

to

1997, the

trial

the

acumen

effective

district court

this petition without prejudice for failure to comport

AEDPA's

"prior

approval"

prerequisite

for

second

or

successive habeas petitions.

This appeal ensued.

____________________

2The panel
jurisdiction,

did, however, remand,

to

obtain

underlying the upward

After

Judge

clear

departure.

McAuliffe released

while retaining appellate

statement

of

See Pratt, 73
___ _____
an

the

reasons

F.3d at 453-54.

explanatory

statement, see
___

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

an unpublished

order dated

affirmance unconditional.

August 8,

1996, making

the

II.
II.

ANALYSIS
ANALYSIS

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

court resolved

second

petition eventuated.

restrictions

behalf

Pratt's initial

The

new

but before

law imposes

his

significant

on second or successive habeas petitions brought on

of federal

procedural

habeas petition

and

incorporates by

prisoners.

substantive

These

dimensions.

reference in section

AEDPA makes applicable

restrictions

have

Procedurally,

2255 the same

to second or successive

both

AEDPA

screen that

habeas petitions

prosecuted on behalf of persons being held in state custody.

statute

thus requires

second or successive

obtain from

a federal

prisoner,

habeas petition in

"the appropriate

court of

before docketing

the district court,

appeals .

. .

The

to

an order

authorizing the

U.S.C.

also
____

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

Felker
______

v.

Substantively,

its

district court to consider the application."

Turpin,
______

116

S.

AEDPA directs the

authorization

of a

Ct.

2333,

second

or successive

2255); see
___

2337

court of appeals

petition

(1) newly discovered evidence that, if proven

viewed in

whole, would
clear

and

reasonable

light of

the

be sufficient
convincing

evidence as
to establish

evidence

factfinder would

a
by

that

no

have found

the

movant guilty of the offense; or

(2) a

new rule of

constitutional law,

retroactive to cases on
the

Supreme

unavailable.

28 U.S.C.

2255.

Court,

made

collateral review by
that

was

(1996).

to condition

applicant's showing of either:

and

28

previously

on the

This

Pratt's

and if

necessitates

that we

determine

whether

second section 2255 petition comes within AEDPA's reach,

so, whether the

proceedings

these

appeal

statute permits us to

in the district

inquiries, however, we

court.

authorize further

Before pursuing

pause to address

either of

the government's

contention that this court lacks jurisdiction to hear the instant

appeal.

A.
A.

In the proceedings below,

Pratt's

had

the district court dismissed

second habeas petition without prejudice, noting that he

failed to

obtain clearance

required by AEDPA.

from

the court

of appeals

as

The government contends that, inasmuch as the

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

28 U.S.C.

appeal.

1291 (1994), and thus cannot support the weight of an

The government is wrong.

AEDPA's

matter

prior

jurisdiction to

approval provision

the court

allocates

of appeals

subject-

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.

(7th Cir. 1996).

court,

faced

petition, must

See Nu ez v. United States, 96 F.3d

___ _____
_____________

This

with

990, 991

statutory directive means that a district

an unapproved

second

or

successive habeas

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

provides in pertinent part:

resort to a statute that

162, 164

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

_______
_____________

122-23 (2d Cir. 1996).

If

Pratt

latest petition,

been

had

acknowledged that

the district

appealable.

applicability.

The court below chose the former course.

He

Here,

court's decision

however,

the district court

latest petition.

Pratt

can regain access to the

thereby vindicate his theory) only

holding that

AEDPA

governed

might not

disputes

his

have

AEDPA's

district court (and

by an appeal and a subsequent

erred in applying AEDPA

The district court's order

to his

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)

requirement has

the

(explaining

a practical cast),

district court's

moment.

that

claims dismissed

1291's

That

without prejudice is

of no

routinely exercise jurisdiction

without prejudice

sufficient indicia of finality.

when the

See, e.g., Presbytery of N.J. v.

___ ____ __________________

Whenever a civil action is filed in a court .

. or

filed

an appeal .

. .

is noticed

for or

with such a court and that court finds

that

there is

court

a want

shall, if

it is

justice, transfer
any other such

of jurisdiction,
in

the interest

such action

or appeal

court in which the

the
of
to

action or

appeal could have been brought at the time it

was

filed

appeal

or

noticed, and

the

action

or

shall proceed as if it had been filed

in or noticed

over

dismissal contains

____________________

finality

and it is appealable.

dismissal was

Appellate courts

section

for the court

to which it

is

transferred on

the date

actually filed in

upon

or noticed

which it
for the

was
court

from which it is transferred.

28 U.S.C.

1631 (1994).

Florio,
______

40 F.3d

1454, 1461

(3d

Cir. 1994);

Hosp'n & Med. Servs., Inc., 954 F.2d 705, 708

___________________________

Brady v.
_____

Sullivan, 893 F.2d 872, 876

________

Kobleur v.
_______

Group
_____

(11th Cir. 1992);

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

applies generally

to

cases in

provisions do not bar his

this

extent, the

closer to

home.

also contends

the

that even

same temporal

if AEDPA

posture

pursuit of post-conviction relief.

government's jurisdictional

Nevertheless,

we need

this largely metaphysical debate.

jousting may

not spend much

its

To

hit

time on

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

so

will

save

thus preserve appellate jurisdiction

unnecessary

paperwork

without

if doing

sacrificing

any

party's substantial rights.

Pratt

See Nu ez, 96 F.3d at 991.

___ _____

invites us

to employ

appellate record is adequate to

expedites adjudication

that

approach here,

the

the task, and taking this avenue

of the matters

in issue.

We

therefore

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

petition without prejudice because the

approved its prosecution,

court of appeals has

and the petitioner appeals,

not

the court

of appeals may in its discretion treat

the notice of appeal as a

request

petition.

for

We

authorization

to

file

second

or

successive

exercise that discretion here to the extent, if at

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.

that the

question

whether the

petition must be answered in

place

On

this basis, Pratt maintains

statute

applies to

his

second

the negative because doing so would

an impermissible retroactive burden on his first petition.

We disagree.

We

applying

statute's

begin

our

statute to

effective

analysis

pleading

date

is

best of authority that Congress

1996).

remarking

that

not

application in the classic sense.

section

by

the

was filed

really

obvious:

after

the

"retroactive"

Here, moreover, we know on the

intended that AEDPA apply to all

2255 petitions filed after its effective date (April 24,

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

AEDPA's enactment.

courts

filed his first petition

See Felker, 116 S. Ct. at

___ ______

of appeals have followed suit.

2336-37.

prior to

Several

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.

1012, 1014 (10th

from a legal

Cir. 1996).

1996); Hatch v. Oklahoma,

_____
________

This approach is

perspective but also from the

92 F.3d

sound not

only

standpoint of common

sense.

After all, if pre-AEDPA jurisprudence somehow attached to

an entire

course of post-conviction

proceedings by virtue

of a

prisoner's

along

having filed a

the way,

then

the

pre-enactment petition at

Court's opinion

in

some point

Felker would
______

be

drained of all meaning.

Faced with these

formidable obstacles, Pratt

to refocus the definition of retroactivity.

attempts

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

enactment."

(1994).

of

consequences to events completed

Landgraf
________

v. USI Film Prods., 511

_________________

Wielding this club,

AEDPA to his

prior to AEDPA's

first petition (which was

passage).

U.S. 244,

270

Pratt asserts that the application

second petition impermissibly

consequences of his

before its

alters the legal

fully adjudicated

This argument, in turn, leads him to

embrace

the "mousetrapping" doctrine.

F.3d 465, 468-69 (7th Cir. 1996).

to

our

knowledge

has

not

See Burris
___ ______

Based on this construct (which

been

adopted

Circuit), he argues

that, even if AEDPA

his

petition,

second

habeas

v. Parke, 95
_____

it

outside

the Seventh

otherwise might control

should

not

do

so

in

the

circumstances of this case.4

____________________

4This extra step is a necessary element of Pratt's

because

an affirmative

inquiry

does not

retroactive.

To

answer to

automatically

position

the above-described
render a

Landgraf
________

statute impermissibly

the contrary, the Landgraf Court

________

warned that a

"statute does not operate [retroactively] merely because it . . .

upsets

expectations based on

conclusion of
process
change

retroactivity

of judgment
in the

law

prior law."
instead

concerning
and

511 U.S. at

"comes at

the nature

the degree

of

and

the

269.

of

end

extent of

the

connection between

the

The particulars of Pratt's claim are fuzzy.

to

be saying, with minimal elaboration,

He appears

that the district court

would have entertained his second section 2255 petition under the

prevailing

pre-AEDPA standard, see

___

467, 493 (1991)

McCleskey v. Zant,
_________
____

(discussing the parameters of the

writ" principle), and

so, application of AEDPA's

standard to his second section

499 U.S.

"abuse of the

more stringent

2255 petition will attach new and

unforeseen legal consequences to the filing of his first petition

(in

effect penalizing

include

all

petition).

possible

In Pratt's

him retroactively

for

constitutional

claims

view, this adverse

having failed

in

his

effect on

to

first

his post-

conviction litigation strategy "mousetraps" him.

Even were we to address the mousetrapping

matter that

advantage of

we leave

it.

for

The

another day

Pratt

doctrine requires a habeas

doctrine

could not

take

petitioner to

show that he consciously chose to withhold a potential ground for

relief

from his first

upon pre-AEDPA law.

petition because he

See, e.g., Alexander v.

___ ____ _________

detrimentally relied

United States, 121

_____________

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

______

In re Magwood, 113 F.3d

______________

1544, 1552-53 (11th

see also
___ ____

Cir. 1997).

Pratt

cannot carry this

burden.

he "relied upon the

filed

Although he states perfunctorily that

abuse of the writ law as

his [original]

2255"

factual support for this

petition, he

it existed when he

offers no

conclusory statement.

More

legal or

is needed.

____________________

operation of

the new rule

and a relevant

270.

10

past event."

Id. at
___

See
___

In re Medina,
______________

petitioner's

109

F.3d

"one-sentence

at

1562

conclusory

n.1

(holding

statement"

that

did

not

establish detrimental reliance).

More important than Pratt's subjective understanding is

the

utter

reliance.

is

one

Henry
_____

lack

of any

"In assessing

of objective

v.

Connolly,
________

Accordingly,

prevailing

remotely

910

he filed

F.2d

here is

his first

of ineffective

under the

1000,

law would allow him to

withheld ground

suggesting detrimental

detrimental reliance vel non,

___ ___

reasonableness

the question

believed, when

facts

not

1003

the test

circumstances."

(1st

Cir.

whether Pratt

habeas petition,

1990).

actually

that then-

file a second petition on the

assistance of

trial counsel

so

long as

he

could pass

muster

rather, is whether such a

under McCleskey;
_________

the

question,

subjective belief, even if it existed,

is objectively reasonable.

As a general

basis for

hurdle.

screen

matter, reliance upon pre-AEDPA law

permitting a

second petition

out

abusive

deployments

F.2d

228,

236

of

the

writ

is

notoriously

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

___ ____ _________
______

v. Carrier, 477 U.S. 478,

_______

(5th

495-96 (1986); United States v. Shaid,

_____________
_____

Cir.

Chemerinsky, Federal Jurisdiction

_____________________

1994).5

clear this

The "cause and prejudice" test that McCleskey imposed to

_________

difficult to pass.

937

rarely will

as a

1991);

see
___

15.4.3, at

Pratt cannot satisfy its rigors.

generally
_________

809-11 (2d

Erwin

ed.

____________________

5Of

course,

the

determination in Burris,
______

Seventh

Circuit

95 F.3d at 469-70.

did

make

such

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),

2255 petition

to the

effect that a

in which

prisoner who files

he alleges that

his attorney

a section

failed to

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

appealing for the first time."

nothing

to do with

clear in

But this statement has absolutely

abuses of the writ;

the immediately

as Bonneau itself makes

_______

succeeding sentence,

the language

on

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

does not

have to show

appealed."

Id.
___

that there are

Because

meritorious issues

Bonneau
_______

merely

restates

to be

the

uncontroversial rule that a federal habeas petitioner who alleges

Sixth Amendment deprivation grounded in his attorney's failure

to perfect a

direct appeal need not prove

Penson v. Ohio, 488 U.S. 75, 88

______
____

actual prejudice, see

___

(1988), the single sentence that

Pratt wrests out of context fails to serve his ends.

With

bare; he

has

detrimental

Bonneau out of
_______

not proffered

reliance.

the picture, Pratt's

any other

basis for

Consequently, we

have

cupboard is

a finding

no

of

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
second

had waived

habeas

resolution of the

petition

any abuse
during

first petition.

of the

writ defense

proceedings
See id.
___ ___

directed
In

at

to a

the

contrast, Pratt

does not allege that any statement or conduct on the government's

part lulled

him into

believing that it

section 2255 petition.

12

would condone

a second

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

temporal

retroactive effect, his

matter,

within

Lindh, 117 S. Ct. at 2063.

_____

AEDPA's

second petition is,

jurisprudential

reach.

as a

See
___

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

mantra "second or successive."

same phrase in relation

Courts

define the

that have interpreted the

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

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

_____________________________________

1994).

We agree

that AEDPA does

interpretations, but

28.3a, at

916-20 (2d ed.

not blunt the

force of these

we are not persuaded that the emergent rule

pertains in the circumstances presented here.

1.
1.

Decisions

that

construe

13

the

meaning

of "second

or

successive"

most frequently

prisoner's first

remedies.

concern a

habeas petition

See, e.g.,
___ ____

court's

for failure

Howard v. Lewis,
______
_____

dismissal of

to exhaust

905 F.2d

state

1318, 1322-23

(9th Cir. 1990);

Hill v. Lockhart, 894 F.2d 1009, 1010 (8th Cir.

____
________

1990) (en banc).

Recent post-AEDPA cases

exemplified by Howard
______

if the original

and Hill and have preserved

____

petition did not produce an

merits a prisoner's later petition

successive."

Cir. 1997);

have hewed to the line

See, e.g.,
___ ____

Dickinson v. Maine,
_________
_____

adjudication on the

will not be deemed "second or

In re Gasery, 116 F.3d

____________

Christy v. Horn, 115

_______
____

the rule that

1051, 1052 (5th

F.3d 201, 208 (3d

101 F.3d 791, 791 (1st

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

Cir. 1997);

Cir. 1996); Camarano

________

_____

In

federal

federal

prisoners, 28

involve

state

former are not

forum,

U.S.C.

prisoners, 28

petition

2255,

petitions

differ

U.S.C.

that involve

from those

2241-2254, in

41.4a, at 1196.

In particular,

assistance of counsel embodied in

generally are not

that

that the

constrained by an exhaustion requirement.

Liebman & Hertz, supra,

_____

of ineffective

habeas

See 2
___

claims

a section 2255

deemed procedurally defaulted simply

because they were not raised on direct appeal.

See, e.g., United

___ ____ ______

States
______

(1st

v. Soldevila-Lopez,
_______________

17 F.3d

480, 485

Cir. 1994);

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

_____________
_______

absence of

federal

a procedural bar opens an opportunity for overlap:

prisoner bent

on

asserting

an ineffective

The

assistance

claim can simultaneously

and

a section

file a direct appeal of

2255 petition,

resulting in

his conviction

two federal

courts

14

concurrently

reviewing the

redundancy,

we

circumstances

ineffective

have

same

ruled

we will dismiss

assistance

of

judgment.

that

except

a section 2255

counsel

as

To

in

prevent

such

extraordinary

petition claiming

premature

until

the

prisoner's direct appeal concludes.

Martinez,
________

71 F.3d

946, 953

See United States v.

___ _____________

(1st Cir.

Diaz_____

1995); United States v.

______________

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

______

Pratt seizes

upon this

body of

authority and

that, under it, the district court probably would have

as

had

premature his ineffective

he

asserted it

in

assistance of trial

his

original

theorizes, failure to raise the

no

different,

practically

that applying

dismissed

counsel claim

petition.

Thus,

Pratt

claim in the initial petition is

speaking,

than

dismissed it without deciding the merits.

he posits

argues

if

the

court

had

Based on that analogy,

AEDPA's restrictions

to pretermit

later petition produces a fundamentally unfair whipsaw effect.

his

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,

2255 petitions

appeal was still

as premature

pending.

only when

we have classified section

the petitioner's

See, e.g., Diaz-Martinez,

___ ____ _____________

953; Gordon, 634 F.2d at

______

638-39.

in Pratt's

began his quest for

the

case when he

claim of ineffective

Because no appeal

assistance of trial

direct

71 F.3d at

was pending

collateral relief,

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

DeFalco, 644 F.2d

_______

had ample incentive

direct

appeal,

cf. United States

___ ______________

v.

132, 137 (3d Cir. 1979) (en banc), Pratt still

to include the claim in

After all, he could not

his first petition.

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

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

regimen.

discern

no

unfairness in

holding

The requirement that all available

Pratt

to this

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.

purpose

all

The

requirement

of forcing federal

serves

the

singularly

habeas petitioners to

salutary

think through

potential post-conviction claims and to consolidate them for

____________________

6Although
equitable

the

existence

balance, we

of an

note that,

incentive

even

in the

incentive, the reported cases refuse to accept

may

affect the

absence of

any

the position that

Pratt espouses.
118

F.3d 628

For example, in Martinez-Villareal

__________________
(9th Cir.

U.S.L.W. 3157 (U.S. Oct.

the habeas petitioner

1997) (per

events,

premature

that

had absolutely no

incentive to include

executed in his first petition

claim automatically

the Ninth

granted, 66
_______

14, 1997) (No. 97-300), a case in which

claim of incompetency to be
all

curiam), cert.
_____

v. Stewart,
_______

Circuit stated

would

have

in

been deemed

that "a competency

must be raised in the first petition."

claim

Id. at 634; accord In re

___
______ _____

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

_____

16

unitary presentation

to the

district court.

This

exercise

advances the cause

barring

of judicial efficiency and

Pratt's second petition.

further justifies

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."

Section

This argument derives from

2255 Proceedings

has promulgated pursuant

See 28
___

U.S.C.

these rules

Swazo
_____

2072

carry the

the Rules Governing

a set of rules that the Supreme Court

to congressionally delegated authority.

(1994).

Like

force and

all similar

federal rules,

effect of positive

law.

See
___

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

______________________________________________________

23

F.3d

332,

333

(10th

Cir.

1994);

Massachusetts Inst. of Tech., 950

_____________________________

see
___

also
____

F.2d 13, 21 (1st

McCoy
_____

v.

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

potentially significant

granted Pratt's first

sentence and

period.

alter

2(c),

here because, after

and

resentenced him

in order to

This argument

is attractive at

is

court

new appeal

second petition

and is therefore not

blemishes emerge upon closer study.

rule

vacated Pratt's

trigger a

Pratt asserts that the

challenges a different judgment

the

the district

section 2255 petition, it

On this basis,

successive."

Rule

"second or

first blush,

but

17

In the first

place, although Pratt grasped

this apparent lifeline when it

avidly for

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.

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

______________

See
___

Sandstrom v.
_________

In

makeweight

the second place,

than a

lifeline.

restoring Pratt's right to an

then reimposing it

See, e.g.,
___ ____

1989).

all

The

district

appeal

v. Pearce, 992
______

Page v. United States,

____
_____________

is more a

court's method

of

vacating the sentence and

is standard practice

United States
_____________

Cir. 1993);

this laglast argument

among federal courts.

F.2d 1021,

884 F.2d 300,

1023 (10th

302 (7th Cir.

Although a reentered judgment of conviction, identical in

material

respects

to

the

judgment

that

it

supplanted,

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

is

whether it

challenge in a

is a

type

of new

judgment that

second habeas petition without

petitions addressed to the original judgment.

not.

is

subject to

regard to earlier

We hold that it is

Under

successfully

reconvicted,

ordinary

brings

and

circumstances,

habeas

resentenced

petition

and

may collaterally

prisoner

who

is

retried,

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.

opportunity to petition

Nevertheless, this

18

freely for

post-conviction relief after a new

unfettered.

incentive

As

and the

a general

judgment of conviction is not

rule, a

ability to

prisoner who

raise a

had both

particular claim

the

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

alleged

errors

re-petition after

affecting

Richmond, 774
________

F.2d at 960.

clear:

prisoner

the

had

the

resentencing

underlying

The rationale

ample

based on

conviction.

See
___

for such a holding is

incentive

to challenge

the

underlying

conviction in his

relief since success

first request

for post-conviction

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

principled reason

in

why the

his

first

petition,

there

restrictions designed

successive petitions should not apply.

to assert

section 2255

lawyer's trial

his claim

petition.

of

no

for second

or

See id.
___ ___

This rationale applies squarely to Pratt.

incentive

is

trial error

If the district

He had every

in his

court agreed

performance was constitutionally

initial

that his

defective, then

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

objective that

Congress had in

mind when

it placed curbs

The

on a

prisoner's freedom

frustrated if

to file

multiple habeas

a prisoner could

petitions would

negate the legal effect

be

of this

19

kind

of

omission by

the

simple

expedient of

filing

another

petition.

There

does not

is a related

transform the

reason why the

legal landscape.

reentered judgment

It is

an abecedarian

rule that, in a

second petition for post-conviction relief,

prisoner must be able to point to a new claim of error

the

that is,

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

it could not

diligence

have been discovered in the

or

petition).

28.1, at

retrial that

it

arose

after

the

exercise of reasonable

resolution

of

the initial

See 2 Liebman & Hertz, supra,

___
_____

26.3b, at 854-56; id.

___

896.

petition results in a

For example, if a habeas

yields a

new conviction, the

prisoner is

free to

seek further habeas relief based on errors that transpired in the

course

of

the new

Similarly, if a

prisoner is free

trial.

See
___

Palmer,
______

habeas petition results

961

F.2d at

774-75.

in a resentencing,

to petition for further relief

that transpired in the course of the resentencing.

the

based on errors

See Richmond,
___ ________

774 F.2d at 960.

for

In both

errors that he

conviction

cases, the prisoner is seeking redress

could not have

proceeding unless

errors arising out

he

challenged in

were clairvoyant.

of events that occurred before

the initial habeas petition, and

a prior post-

Unpursued

the filing of

which could have been, but were

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

Those

errors

normally

are

subsequent habeas petition.

Measured

against

not

eligible for

inclusion

in

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

___ ______

the

rule,

20

as

explicated by

these

examples,

Pratt's asseveration falls short.

2255 petition seeks

to set aside the underlying

ground that he could have raised, but

first petition.

His current section

Pratt does not assert

conviction on a

did not, when he filed his

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

brief

that he

is unable

near.

Pratt

to satisfy

concedes in his

appellate

AEDPA's preconditions

for

filing

a second

section

concession is compelled

2255

petition.

by the record:

In

Pratt

possess newly discovered evidence in support of

invokes a

neoteric rule of constitutional law.

any event,

this

neither claims to

the petition nor

See 28 U.S.C.
___

2255.

We need go no further.

claims of error

in his first section 2255

now pay the piper.

case,

Pratt failed to marshal all his

petition, and he must

AEDPA governs here, and, on the facts of this

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.
is affirmed.
___________

The petitioner's appeal is treated concurrently as

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.
___________________________________

21