In the

United States Court of Appeals

For the Seventh Circuit

No. 98-1803

Eugene A. Fischer,

Petitioner-Appellant,

v.

United States of America,

Respondent-Appellee.

Appeal from the United States District Court

for the Southern District of Illinois.

No. 97 C 4116--James L. Foreman, Judge.

Argued October 23, 2001--Decided April 4, 2002

 Before Harlington Wood, Jr., Cudahy, and

Kanne, Circuit Judges.

 Kanne, Circuit Judge. Eugene Fischer

seeks habeas relief from his conviction

of being the principal administrator of a

continuing criminal enterprise (CCE),

alleging that his conviction was obtained

in violation of Richardson v. United

States, 526 U.S. 813, 119 S. Ct. 1707,

143 L. Ed. 2d 985 (1999). The district

court denied habeas relief, and we

affirm.

I. History

 Over thirteen years ago, Fischer was

convicted of violating 21 U.S.C. sec.sec.

841(a)(1) and 846 by conspiring to

distribute more than 300 tons of

marijuana. The jury also found that

Fischer had participated as a principal

administrator, organizer, or leader of a

CCE in violation of 21 U.S.C. sec. 848

(the "drug kingpin" statute), and

assessed $30 million in criminal

forfeitures against him. As required by

the drug kingpin statute, the district

court sentenced Fischer to life

imprisonment. Fischer was also given a

35-year sentence, to run concurrently, on

the conspiracy conviction. In United

States v. Kramer, 955 F.2d 479, 492 (7th

Cir. 1992), we affirmed Fischer’s

convictions and sentences in all
respects.

A. Habeas Proceedings before the

District Court

 On April 21, 1997, Fischer filed a

petition for writ of habeas corpus under

28 U.S.C. sec. 2255, raising the

following claims: (1) the prosecutor

lacked authority to bring the case; (2)

the grand jury concurrence form was

improper; (3) the amendments to the

indictment were improper; (4) the trial

judge had an actual conflict and should

have recused himself; (5) his trial

counsel was ineffective; and (6) the

trial judge improperly admitted certain

prejudicial evidence./1 Although he had

challenged the lack of jury unanimity

with respect to his CCE conviction on

direct appeal, he did not do so in his

habeas petition. On March 12, 1998, the

district court denied Fischer’s habeas

petition.

 

B. Fischer’s Rule 35 Motion

 On March 30, 1993, Fischer filed a Fed.

R. Crim. P. 35 motion seeking to correct

or reduce his sentence. In 1997, relying

on the Supreme Court’s then-recent

decision in Rutledge v. United States,

517 U.S. 292, 116 S. Ct. 1241, 134 L. Ed.

2d 419 (1996), the district court granted

Fischer’s motion in part and denied it in

part. In Rutledge, the Supreme Court held

that a sec. 846 conspiracy is a lesserincluded offense of a sec. 848 CCE. See

517 U.S. at 307. Under Rutledge,

convictions for both conspiracy and CCE

offenses arising from the same facts

constitute double jeopardy, and one of

the convictions must be vacated. See id.

In the present case, the district court

vacated Fischer’s conspiracy conviction

and sentence, and refunded a fifty-dollar

special assessment in accordance with

Rutledge. See United States v. Fischer,

205 F.3d 967, 969 (7th Cir. 2000). The

CCE conviction and life sentence remained

unaltered. See id. Fischer appealed,

arguing that the district court abused

its discretion by vacating his conspiracy

conviction and sentence instead of his

CCE conviction and sentence. See id. at

970. On February 29, 2000, we affirmed

the district court. See id. at 973.

 During Fischer’s Rule 35 appeal, Fischer
attempted to challenge the lack of jury

unanimity with respect to his CCE

convictions pursuant to Richardson. In

Richardson, the Supreme Court held that a

jury must unanimously agree not only that

a defendant charged under sec. 848

engaged in a continuing series of

violations, but also must unanimously

agree on which specific violations made

up that continuing series. See 526 U.S.

at 817-24. After granting the parties’

request to brief the Richardson issue, we

held that because Fischer’s argument

under Richardson attacked his underlying

CCE conviction and not the actual

sentence imposed, a Rule 35 motion was

not the proper means by which to assert

his claim. See 205 F.3d at 972. We

concluded by noting that such challenges

to a conviction should be raised under 28

U.S.C. sec. 2255, not under Rule 35. See

id.

C. Certificate of Appealability

 After the district court denied

Fischer’s habeas petition on March 12,

1998, Fischer requested a certificate of

appealability from the district court,

which denied that request on March 28,

1998. On April 10, 1998, Fischer sought a

certificate of appealability from this

court for the claims raised in his habeas

petition--which did not include a

challenge to the lack of jury unanimity.

On April 26, 2000, Fischer renewed his

motion for a certificate of appealability

and petitioned to amend his application

for a certificate of appealability to

include a Richardson claim. We denied a

certificate of appealability for the

claims arising out of Fischer’s initial

habeas petition, but granted a

certificate of appealability limited

solely to the Richardson issue.

II. Analysis

 As an initial matter, we must address

the government’s argument that we lack

jurisdiction under 28 U.S.C. sec. 2255 to

hear Fischer’s claim. The relevant

provision of that statute provides that

"[a] 1-year period of limitation shall

apply to a motion under this section. The

limitation period shall run from . . .

the date on which the right asserted was

initially recognized by the Supreme

Court, if that right has been newly

recognized by the Supreme Court and made
retroactively applicable to cases on

collateral review." 28 U.S.C. sec.

2255(3). There is no dispute that

Richardson created a "newly recognized"

right, see, e.g., United States v. Lopez,

248 F.3d 427, 429 (5th Cir. 2001), or

that it is generally retroactively

applicable on collateral review. See

Lanier v. United States, 220 F.3d 833,

838 (7th Cir. 2000); see also Lopez, 248

F.3d at 432; Murr v. United States, 200

F.3d 895, 906 (6th Cir. 2000) (stating

that "in light of Bousley[ v. United

States, 523 U.S. 614, 118 S. Ct. 1604,

140 L. Ed. 2d 828 (1998)] Richardson

applies retroactively" on collateral

review). The government contends that

only the Supreme Court may determine

whether a decision is "made retroactively

applicable to cases on collateral

review." However, we rejected this

precise argument in Ashley v. United

States, 266 F.3d 671, 673 (7th Cir. 2001)

and held that "[d]istrict and appellate

courts, no less than the Supreme Court,

may issue opinions ’holding’ that a

decision applies retroactively to cases

on collateral review." The final issue is

whether Fischer filed his motion within

one year of the date that Richardson was

"made retroactive." In Ashley, 266 F.3d

at 674, we held that the clock began to

run once this court declared a decision

to apply retroactively. On June 12, 2000,

we declared Richardson to be

retroactively applicable on collateral

review. See Lanier, 220 F.3d at 838.

Therefore, because Fischer filed his

claim before that date, we have

jurisdiction to hear his Richardson claim

under sec. 2255(3).

 However, just because we have

jurisdiction under sec. 2255(3) to hear

Fischer’s Richardson claim does not mean

that his claim is properly before us. In

order for us to consider a particular

ground for habeas relief under the

Antiterrorism and Effective Death Penalty

Act of 1996 ("AEDPA"), Pub.L. 104-132,

110 Stat. 1214 (1996) (codified at 28

U.S.C. sec. 2255), an inmate must first

present this ground to the district court

in a timely filed petition. See, e.g.,

Gray-Bey v. United States, 156 F.3d 733,

743 (7th Cir. 1998). Although Supreme

Court case law issued during the pendency

of an appeal may provide inmates and

their counsel with a powerful new ground

for relief that they may wish they had
presented to the district court, an

appellate court is not the proper venue

to consider such a ground for the first

time. See id. If the original petition

did not contain this ground for relief,

then that ground has been waived on

appeal, see id., and a prisoner’s habeas

options are thereafter limited by the

special rules that apply to second or

successive collateral attacks. See 28

U.S.C. sec. 2255, para. 8; see also

Talbott v. Indiana, 226 F.3d 866 (7th

Cir. 2000) (holding that in a second or

successive habeas petition, relief is

only possible if the Supreme Court

declares that a new rule of

constitutional law applies

retroactively).

 In the present case, the government

argues that Fischer’s appeal must be

rejected because he did not challenge the

lack of jury unanimity before the

district court and therefore is barred

from making such a challenge on appeal.

We faced a similar scenario in Gray-Bey,

156 F.3d 733. In Gray-Bey, 156 F.3d at

735, the defendant had been convicted of

using a firearm during drug trafficking

in violation of 18 U.S.C. sec. 924(c).

The defendant filed a petition for habeas

relief under sec. 2255, which the

district court denied. See 156 F.3d at

736-37. Subsequent to that denial, the

Supreme Court handed down Bailey v.

United States, 516 U.S. 137, 116 S. Ct.

501, 133 L. Ed. 2d 472 (1995), which,

according to the defendant, required

reversal of his 924(c) conviction. See

156 F.3d at 742. On appeal, the defendant

attempted to raise a Bailey claim even

though he had not raised it before the

district court. We initially noted that

it was "axiomatic that an issue not first

presented to the district court may not

be raised before the appellate court as a

ground for reversal." Id. at 742-43. We

then held that the defendant could not

raise a Bailey claim on appeal because he

had failed to raise it before the

district court. See id. at 743. Here, as

in Gray-Bey, Fischer failed to challenge

the lack of jury unanimity in his habeas

petition before the district court,/2

and therefore he cannot raise the claim

before this court. See id.; see also

Valenzuela v. United States, 261 F.3d

694, 700 (7th Cir. 2001) ("By failing to

raise [the] issue in his sec. 2255

petition before the district court, [the
defendant] has waived it.").

 Fischer attempts to circumvent this bar

by pointing to our statement in our Rule

35 decision that a Richardson claim

"should be litigated under 28 U.S.C. sec.

2255," not under Rule 35. 205 F.3d at

972. Fischer contends that this statement

permits him to now raise his Richardson

claim even though he did not raise this

claim before the district court. Fischer,

however, is mistaken as our opinion

rejecting Fischer’s Rule 35 appeal only

informed Fischer of the proper method to

raise his Richardson claim. Similarly,

our motion granting Fischer a certificate

of appealability only allowed Fischer to

obtain this court’s review. See Ramunno

v. United States, 264 F.3d 723, 724-25

(7th Cir. 2001). Neither the Rule 35

opinion, nor the certificate of

appealability relieved Fischer of

complying with the procedural

requirements necessary to pursue his

Richardson claim, and his failure to

challenge the lack of jury unanimity

before the district court is fatal to his

claim on appeal. See Gray-Bey, 156 F.3d

at 743.

III. Conclusion

 For the foregoing reasons, we AFFIRM the

district court’s denial of Fischer’s

habeas petition.

FOOTNOTES

/1 Fischer also supplemented his habeas petition and

added additional claims not relevant to this

appeal.

/2 Fischer conceded his failure to raise this issue

in his motion to amend his petition for a certificate of appealability, and the record is clear

that he did not raise this issue before the

district court in any of his habeas pleadings.

Cf. Lanier, 220 F.3d at 838 (finding that supplemental brief submitted before the district court

had decided original motion preserved issue for

appeal).