Blitch v. United States

39 F.4th 827

Christopher BLITCH, Petitioner-Appellant,

v.UNITED STATES of America, Respondent-Appellee.

No. 20-3082

United States Court of Appeals, Seventh Circuit.

Argued February 9, 2022

Decided July 12, 2022

Erica Kristine Zunkel, Attorney, Federal Criminal Justice Clinic, Chicago, IL, Judith Pola Miller, Attorney, Mandel Legal Aid Clinic, Chicago, IL, for Petitioner-Appellant.

Debra Riggs Bonamici, Attorney, Office of the United States Attorney, Chicago, IL, for Respondent-Appellee.

Before Flaum, Brennan, and St. Eve, Circuit Judges.

Flaum, Circuit Judge.

This appeal centers on the role of Rule 60(b) motions in habeas proceedings. Petitioner Christopher Blitch's case began with a scheme to rob a fictional drug stash house. Blitch was arrested, along with three others, through a Bureau of Alcohol, Tobacco, Firearms, and Explosives ("ATF") operation. They were charged with conspiring and attempting to possess with the intent to distribute more than five kilograms of cocaine—their sentences corresponding to imaginary drug amounts at an imaginary stash house, as conjured up by the government. The broader ATF "stash house" sting operation has been the subject of extensive litigation and critique. After a years-long legal battle in his case, Blitch now appeals the denial of his motion pursuant to Federal Rule of Civil Procedure 60(b) seeking to reopen the judgment on his previous habeas petition. Because his 60(b) motion was untimely, we affirm the district court's judgment.

I. Background

In 2006, a Special Agent with the ATF posed as a drug courier and recruited Blitch, Michael Carwell, Devarl Washington, and Michael Harris to steal cocaine from a fictional drug cartel stash house. On the night the robbery was planned to take place, an ATF special response team arrested them. At the time of their arrest, the men were prepared for a violent robbery; they were carrying guns, ammunition, twine, duct tape, a black ski mask, and batting gloves. In reality, there were no drugs, and there was no stash house. We have previously detailed the facts leading to Blitch's arrest and conviction, see United States v. Blitch , 773 F.3d 837, 840–43 (7th Cir. 2014), as amended on denial of reh'g and reh'g en banc (Jan. 27, 2015), but the specifics are not relevant to the post-conviction relief issue now before us.

Instead, the focus of this appeal—Blitch's third before this Court—is its complex procedural history. On August 3, 2007, a jury found Blitch, Carwell, Washington, and Harris guilty of (1) conspiracy to possess with intent to distribute cocaine in excess of five kilograms, in violation of 21 U.S.C. § 846 ; (2) attempt to possess with intent to distribute cocaine, in violation of 21 U.S.C. § 846 ; (3) possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A) ; and (4) being felons in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). On Blitch's first appeal, we reversed and remanded for a new trial due to problems with jury selection and deliberation. United States v. Blitch , 622 F.3d 658, 660 (7th Cir. 2010). On re-trial, the defendants were acquitted on the attempt charge but convicted on all other counts. On October 31, 2011, Blitch was sentenced to the statutory minimum of twenty-five years in prison. On December 2, 2014, we affirmed the defendants' convictions and sentences on appeal. 773 F.3d at 848.

On August 2, 2016, Blitch filed his first § 2255 petition—a pro se motion to vacate his sentence under 28 U.S.C. § 2255. He cited to United States v. Johnson , 576 U.S. 591, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), but he made no reference to the recently decided Mathis v. United States , 579 U.S. 500, 136 S.Ct. 2243, 195 L.Ed.2d 604 (2016). In his initial petition, Blitch noted the detrimental impact of "24/7 lock-downs" on his attempts to advocate for himself pro se. Several months later, on December 2, 2016, Blitch filed a pro se motion to amend his § 2255 petition. In relevant part, this motion to amend stated that his

Kane County "simple cocaine possession conviction" does not fall under a "violent offense /aggravate [sic ] felony" based on two reason(s):

(1) pursuant to Mathis ... analysis/ruling that intertwines with the Johnson [sic ]. And,

(2) state of Illinois, [K]ane County "simple cocaine possession" would have been punishable only as a misdemeanor by federal law, and not prosecuted under the Controlled Substances Act as defined in 21 U.S.C.[ ] § 802(13).

Expanding on his newly-raised Mathis argument, Blitch argued that "[p]rior to the U.S. Supreme Court's recent decision in Mathis , the Circuit Courts[ ] permitted the district courts[ ] to consider convictions related documents under the so-called ‘modified categorical approach’ when determining ... whether the elements of a prior conviction categorically qualify as a ‘controlled substance offense' under the Sentencing Guidelines career offender or, any other enhancement provisions.’ " In a letter filed June 29, 2017, Blitch again wrote to the court emphasizing the challenges of "constant flux of lock-downs prohibiting [his] access to necessary legal materials and the needed law library references." On October 31, 2018, the district court denied Blitch's § 2255 petition, but did not rule on his motion to amend or the arguments contained within it. Blitch did not appeal this denial.

Blitch, still proceeding pro se, sought a ruling and final order from the district court. Well over a year after the denial of his § 2255 petition, Blitch filed a handwritten motion to reopen judgment pursuant to Federal Rule of Civil Procedure 60(b)(6) on May 29, 2020. In this motion to reopen, he stated, "[a]lthough extremely convoluted, liberal review [of his § 2255 petition] arguably reveals that the movant, among other claims, sought to ... challenge the sentencing enhancement applied pursuant to 21 U.S.C. § 851 based on his prior conviction for possession of a controlled substance ... under Illinois statute 720 ILCS 570/402" and "claimed a right to the retroactivity of Mathis v. United States , , 136 S.Ct. 2243, 195 L.Ed.2d 604 (2016) to the review of his claims by explicit citation to and reliance upon Holt v. United States , [843 F.3d 720 (7th Cir. 2016) ]." On June 8, 2020, the district court denied this motion, finding it to be in substance an unauthorized second or successive § 2255 petition—a second § 2255 petition "in disguise"—which could only be brought if the Court of Appeals certified that it rested on newly discovered evidence or a new rule of constitutional law made retroactive to cases on collateral review by the Supreme Court.

Several days later, on June 23, 2020, Blitch filed a pro se motion for reconsideration. The district court denied this motion on August 26, 2020. On October 23, 2020, Blitch filed a pro se motion for a certificate of appealability and notice of appeal with the district court. He requested a certificate of appealability to address: (1) whether his claim that the district court ignored or failed to adjudicate his claims made in his motion to amend his § 2255 petition was properly presented in a Rule 60(b)(6) motion and (2) whether the district court's failure to apply Mathis , 579 U.S. 500, 136 S.Ct. 2243, 195 L.Ed.2d 604, to his § 851 enhancement challenge amounted to extraordinary circumstances justifying Rule 60(b)(6) relief.

On November 2, 2020, the district court issued a certificate of appealability on the question of whether Blitch's § 841(b) sentencing enhancement can stand under Mathis , 579 U.S. 500, 136 S.Ct. 2243, 195 L.Ed.2d 604, and United States v. De La Torre , 940 F.3d 938 (7th Cir. 2019). In greenlighting this appeal, the district court noted that, despite any merit of Blitch's enhancement claim, the procedural posture of an untimely Rule 60(b) motion bars relief.

II. Analysis

"When reviewing the denial of a federal prisoner's § 2255 petition, we review the district court's legal conclusions de novo" and "its factual findings for clear error."¹ Bridges v. United States , 991 F.3d 793, 799 (7th Cir. 2021). By contrast, "[w]e review a court's decision to deny Rule 60(b) [relief] for an abuse of discretion only." Adams v. United States , 911 F.3d 397, 403 (7th Cir. 2018).

Rule 60(b) of the Federal Rules of Civil Procedure allows "a party to seek relief from a final judgment, and request reopening of his case, under a limited set of circumstances." Gonzalez v. Crosby , 545 U.S. 524, 528, 125 S.Ct. 2641, 162 L.Ed.2d 480 (2005). A Rule 60(b) motion should be treated as a successive habeas petition if it "seeks to add a new ground for relief" or "attacks the federal court's previous resolution of a claim on the merits. " Id. at 532, 125 S.Ct. 2641. If the Rule 60(b) motion instead challenges "some defect in the integrity of the federal habeas proceedings," and not a merits issue, it is not an impermissible successive motion. Id.

Given the constraints of collateral review, this appeal raises two issues. First, we review whether Blitch's Rule 60(b) motion should be treated as an impermissible successive habeas petition signaling jurisdictional deficiencies. Second, if it is not an impermissible successive habeas petition, we review whether the motion Blitch fashioned as a Rule 60(b)(6) motion was instead a Rule 60(b)(1) motion subject to the one-year filing constraint outlined in Rule 60(c)(1).

A. Successive Habeas Petition

The first question on appeal is whether, in a habeas case, a motion for relief pursuant to Federal Rule of Civil Procedure 60(b) is subject to the additional restrictions that apply to "second or successive" habeas corpus petitions under the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). See 28 U.S.C. § 2244(b).

A prisoner "claiming the right to be released 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...