Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 94 CR 408 George W. Lindberg, Judge.
Before Lay, *fn* Easterbrook, and Kanne, Circuit Judges.
Easterbrook, Circuit Judge.
On Petition for Leave to Commence a Successive Collateral Attack.
For the third time since Congress enacted the Antiterrorism and Effective Death Penalty Act, Anthony Alexander has sought to commence a successive collateral attack on his criminal conviction. Before the AEDPA took effect, Alexander's conviction was affirmed on direct appeal, No. 93-3465 (7th Cir. Oct. 7, 1994) (unpublished order), and he filed a collateral attack, which we rejected, No. 95-2910 (7th Cir. Feb. 27, 1996) (unpublished order). So the current application is his fourth effort to wage a collateral challenge. Each of the four has had the same theme: that his attorneys rendered ineffective assistance. We have addressed and resolved this contention twice before. When rejecting the first collateral attack we wrote:
Alexander did not argue on direct appeal that his lawyer was ineffective for failure to procure suppression of adverse evidence. But he did argue that his lawyer was ineffective. He contended that the district judge's decision to admit certain telephone records nullified his lawyer's trial strategy and deprived him of the effective assistance of counsel. We considered and rejected this argument on the merits. A petition under sec.2255 is not an appropriate way to add a new wrinkle to a theme advanced, and resolved, on direct appeal. United States v. Taglia, 922 F.2d 413 (7th Cir. 1991).
Each of Alexander's three later efforts to commence a collateral attack depends on the proposition, which he candidly articulates in his current application, that "the United States Court of Appeals for the Seventh Circuit misconstrued the defendant's arguments on direct appeal". Alexander tells us that he hadn't really raised an ineffective-assistance claim on direct appeal (at least, his lawyer didn't do so effectively), which in his view led the district judge and us to slight the arguments in his first sec.2255 petition--although both courts addressed them on the merits. See also Holman v. Page, 95 F.3d 481 (7th Cir. 1996), which holds that an ineffective-assistance claim may not be based on a lawyer's failure to invoke the exclusionary rule, because the introduction of probative evidence is not the sort of prejudice that is required for such a claim. Nonetheless, Alexander believes that we made a mistake and should correct it by looking at the subject afresh and ordering his release from prison.
Section 2255, as amended by the AEDPA, provides:
A second or successive motion must be certified as provided in section 2244 by a panel of the appropriate court of appeals to contain--
(1) newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense; or
(2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.
The reference to sec.2244 also activates an additional limit in that section: "A claim presented in a second or successive . . . application . . . that was presented in a prior application shall be dismissed." 28 U.S.C. sec.2244(b)(1). See Bennett v. United States, No. 97-9071 (7th Cir. July 8, 1997), slip op. 2. When rejecting Alexander's three prior applications for leave to file new sec.2255 petitions, we concluded that the statutory standard had not been met. Alexander made his ineffective-assistance claim before, so the application "shall be dismissed." Even if his contentions were novel, they would fail because he does not point to any new rule made retroactive by the Supreme Court and does not have new evidence showing his innocence.
What Alexander does say is that the AEDPA does not apply to him, despite the fact that his motions were filed after April 24, 1996. Alexander made that contention in his last application, too, and we rejected it. Alexander v. United ...