In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 05-1911

GILBERT W. PAVLOVSKY, JR.,

Petitioner-Appellant,

v.

JOHN R. VANNATTA,

Respondent-Appellee.

____________

Appeal from the United States District Court

for the Northern District of Indiana, Hammond Division.

No. 2:04cv189—Philip P. Simon, Judge.

____________

SUBMITTED AUGUST 26, 2005—DECIDED DECEMBER 16, 2005

____________

Before POSNER, MANION, and EVANS, Circuit Judges.

POSNER, Circuit Judge. Pavlovsky, a state prisoner, filed a

petition for habeas corpus, 28 U.S.C. § 2254, which the

district judge dismissed as untimely, but without prejudice.

Pavlovsky did not appeal, but three and a half years later he

filed another petition for habeas corpus, which the district

judge again denied as untimely, and this time Pavlovsky

has appealed. The state argues that the district judge had no

jurisdiction over the second petition, because a district court

lacks jurisdiction over a second (or subsequent) petition for
2 No. 05-1911

habeas corpus unless the court of appeals has approved its

filing in accordance with the criteria set forth in the last

paragraph of section 2254 and the procedure prescribed by

7th Cir. R. 22.2(e). United States v. Scott, 414 F.3d 815, 817

(7th Cir. 2005); Nunez v. United States, 96 F.3d 990, 991 (7th

Cir. 1996); Pratt v. United States, 129 F.3d 54, 57 (1st Cir.

1997). This is true in general; but if the first petition was

dismissed (or returned to the filer without even being

accepted for filing, O’Connor v. United States, 133 F.3d 548,

550 (7th Cir. 1998)) because of a curable technical deficiency,

as where the petition is filed prematurely or in the wrong

district or without payment of the filing fee, so that the

dismissal is not final and therefore “without prejudice,”

then it doesn’t count as the first petition, Slack v. McDaniel,

529 U.S. 473, 489 (2000); Stewart v. Martinez-Villareal, 523

U.S. 637, 644-45 (1998), and the second petition becomes the

first. Moore v. Mote, 368 F.3d 754, 755 (7th Cir. 2004); Altman

v. Benik, 337 F.3d 764, 766 (7th Cir. 2003). The idea is that the

prisoner is entitled to one clean shot at establishing his

entitlement to relief in a federal habeas corpus proceeding.

Dahler v. United States, 259 F.3d 763, 764 (7th Cir. 2001);

Ching v. United States, 298 F.3d 174, 177 (2d Cir. 2002); HaroArteaga v. United States, 199 F.3d 1195, 1197 (10th Cir. 1999).

Once he has gotten that, basic principles of preclusion now

applicable to habeas corpus as to conventional civil proceedings bar him from relitigating his case. Cf. Lambert v.

Blodgett, 393 F.3d 943, 966 (9th Cir. 2004).

The dismissal of a suit as untimely is a dismissal on the

merits, and so should ordinarily be made with prejudice,

barring relitigation. Kratville v. Runyon, 90 F.3d 195, 198 (7th

Cir. 1996); Lebron-Rios v. U.S. Marshal Service, 341 F.3d 7, 14

(1st Cir. 2003); Kale v. Combined Ins. Co. of America, 924 F.2d

1161, 1164 (1st Cir. 1991). Untimeliness is an affirmative

defense, and if proved shows that the plaintiff has no right
No. 05-1911 3

of relief; and so if he fails to get the determination upset on

appeal, it is final and binding. The government argues that

we should modify the judgment in Pavlovsky’s first habeas

corpus proceeding to make the dismissal with prejudice;

that would bar his new suit. Altman v. Benik, supra; Ching v.

United States, supra, 298 F.3d at 180 n. 5. But the government

did not appeal that first dismissal, as it could have done (a

winning party can appeal if he wants a bigger win than the

trial court gave him) in order to turn the dismissal into one

with prejudice. Alejo v. Heller, 328 F.3d 930, 937 (7th Cir.

2003); Hargrove v. Brigano, 300 F.3d 717 (6th Cir. 2002);

Farmer v. McDaniel, 98 F.3d 1548 (9th Cir. 1996), overruled

on other grounds in Slack v. McDaniel, supra. It’s too late

now. Fed. R. App. P. 4(a)(1)(A); Bell v. Eastman Kodak Co.,

214 F.3d 798, 801 (7th Cir. 2000).

The state has not cross-appealed from the district court’s

judgment dismissing Pavlovsky’s second complaint, but

that is not the problem. The second dismissal was with

prejudice. The government has no dissatisfaction with the

ruling, so no occasion to appeal. What it cannot do is defend

against Pavlovsky’s appeal by means of a collateral challenge to an earlier judgment that it could have appealed

from but did not. Federated Dept. Stores, Inc. v. Moitie, 452

U.S. 394, 398 (1981); Bell v. Eastman Kodak Co., supra, 214 F.3d

at 801; Farmer v. Perrill, 275 F.3d 958, 964 (10th Cir. 2001);

Mitchell v. Commission on Adult Entertainment, 12 F.3d 406,

409 (3d Cir. 1993).

Although the state cannot ask us to modify the previous

judgment, it can ask us to recharacterize it as “really” a

dismissal with prejudice, simply mislabeled by the district

judge; and perhaps that is how the state’s improper request

that we “modify” the previous judgment should be understood. But Pavlovsky was entitled to rely on the judge’s

label. The Supreme Court held in Castro v. United States, 540
4 No. 05-1911

U.S. 375 (2003), that a judge may not recharacterize a pro se

prisoner’s filing as a section 2255 petition (denial of which

could, as argued by the state in this case, preclude a subsequent filing) without warning the prisoner and giving him

a chance to withdraw his filing. We had reached the same

conclusion earlier. E.g., Henderson v. United States, 264 F.3d

709 (7th Cir. 2001). And Slack v. McDaniel, supra, 529 U.S. at

487, had warned against setting traps for unwary pro se

litigants. See also Lewis v. Faulkner, 689 F.2d 100 (7th Cir.

1982). Pavlovsky may have been lulled into thinking he

didn’t have to appeal from the first dismissal because it was

without prejudice; for all we know, he might have had a

meritorious ground for appeal. The situation would be

different had the judge dismissed the first case without

indicating whether the dismissal was with or without

prejudice, for then we would have no choice but to characterize the dismissal ourselves.

We conclude that Pavlovsky’s appeal is not, as the

government argues, from a second or subsequent petition,

and so all he requires is a certificate of appealability. 28

U.S.C. § 2253(c). He is not entitled to one, because his

petition was untimely and therefore properly denied—with

prejudice. But we take this opportunity to remind district

judges that they should be careful not to label a dismissal of

a habeas corpus petition on the merits as being without

prejudice, thereby depriving the dismissal of the finality

that it ought to have.
No. 05-1911 5

A true Copy:

Teste:

 _____________________________

Clerk of the United States Court of 

Appeals for the Seventh Circuit 

USCA-02-C-0072—12-16-05