Habeas Procedure – Application for Successive Attack
Application to extend the deadline for permission to file a second collateral attack, § 28 U.s.C. 2244(b), is premature:
Now before the court are papers Maxy labels a motion, in which he informs us that he intends to file a second § 2244(b) application. Maxy explains that the application will be untimely because the prison limits his use of the copy machine, thereby delaying his ability to comply with the rules of this circuit. Maxy asks us to excuse the untimeliness of the forthcoming application and to order the prison to allow him expanded use of the copier. He does not, how ever, disclose the claim s he wishes to bring in a second petition for a writ of habeas corpus or the documents he is unable to obtain.
When reviewing an application for authorization to file a second or successive collateral attack, the timeliness rules that govern the underlying collateral attack— § 2244(d) in the case of a petition for a writ of habeas corpus and § 2255(e ) for motions to vacate (the corollary for federal prisoners)—generally apply. Johnson v. Robert, 431 F.3d 992 (7th Cir. 2005). But Maxy’s request to forgive the untimeliness of his forthcoming application is premature. There is no possible way to apply the timeliness rules when we don’t even know that the papers will be late; Maxy may propose a claim that relies on a new rule announced within one year of the papers, see § 2244(d)(1)(C), or he may be able to show a state-created impediment that was lifted within one year of filing, see § 2244(d)(1)(B). If, on the other hand, the papers are late and he requests equitable tolling, we have no way of knowing if the as-yet undetermined length of the delay will be reasonable given the constraints he alleges. An analysis of timeliness must wait for the papers to which the question applies.
The court goes on to discuss Maxy’s claim of fundamental right to access to the courts – cut off, he says, by restrictions on copying and thus inability to comply with Circuit Rule 22, which requires attachment to a 2244 motion of prior judicial opinions and petitions:
Since Rule 22.2 was adopted, technological advances have made accessing papers from earlier cases considerably easier. …
Technological advances also take care of the requirement that individuals filing original actions in this court, like a § 2244(b) application, must file an original and three copies of their pleadings. Fed. R. App. P. 21(d). Before electronic filing was possible, the expense of making sufficient copies to make the record and for review by a panel of three judges rightfully fell to the litigants. Now, however, a single paper copy submitted by a pro se prisoner may be scanned and distributed to1 the court at virtually no extra cost.
Under these circumstances, we are comfortable excusing Maxy from complying with Rule 22.2(a)(4) and (5) and Appellate Rule 21(d).
