he attacks a different conviction or sentence”); Johnson v. United States, 196 F.3d 802, 804
(7th Cir. 1999)(holding that “the count” restarts with each new judgment).

Wills’ petition, however, does not collaterally attack his resentencing proceeding. Instead,
his petition is merely another attack on his original conviction and sentence. The arguments he
raises - the double jeopardy violations and the Apprendi claim - are arguments that do not regard
the resentencing proceeding and could have been raised in his first habeas petition. As such, the
instant petition is a successive habeas petition requiring approval of the Court of Appeals pursuant
to 28 U.S.C. § 2244(b)(8)(A). See, e.g., Dahler, 259 F.3d at 764 (denying habeas because the
successive petition did not present an objection to an error newly made at the resentencing
hearing).

Wills’ reliance on Walker v. Roth, 133 F.3d 454 (7th Cir. 1997), is without merit. In
Walker, the court acknowledged that “a second habeas petition attacking for the first time the
constitutionality of a newly imposed sentence is not a second or successive petition within the
meaning of § 2244.” Id. at 455. But the court also pointed out that “had [the petitioner] sought
to challenge aspects of his conviction the district court would have been correct in dismissing
his petition as successive.” Id. at 455, n.1 (emphasis supplied). Indeed, “Wa/kerdealt only with
a challenge to matters that occurred at resentencing; it did not address any claims that could have
been raised before the resentencing.” Dahler, 259 F.3d at 765.

CONCLUSION

Because Wills’ petition is a second or successive petition, he is required, pursuant to 28
U.S.C. § 2244(b)(3)(A), to move in the Court of Appeals for an order authorizing the district court
to consider his application. As we have not been so authorized, Wills’ petition is dismissed for lack

of jurisdiction. Z Zw

It is so ordered. Lo
MARVIN E. ASPEN

? y DU United States District Judge

Dated:


Mirae Order Form (06/97)

United States District Court, Northern District of Illinois

fhecturenst (| 7 Marvin Aspen Su ete
CASE NUMBER 02 C 41 DATE 2/20/2002

OSE USA vs. Michael Wills

TITLE
{In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.]
DOCKET ENTRY:
qd) oO Filed motion of [ use listing in “Motion” box above.]
(2) Oo Brief in support of motion due
(3) 0 Answer brief to motion due. . Reply to answer brief due___
(4) Oo Ruling/Hearing on___set for at
(5) Q Status hearing{held/continued to] [set for/re-set for] on__ set for at
(6) ao Pretrial conference[held/continued to] [set for/re-set for] on set for at_
(o) oa Trial[set for/re-set for]on__ at
(8) a [Bench/Jury trial] [Hearing] held/continued toa
(9) a This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OFRCP4(m) (General Rule 21 [/FRCP41(a)(1) ( FRCP41(a)(2).

ao) =o [Other docket entry] Enter Memorandum Opinion and Order: Because Wills’ petition is a second

Wills’

or successive petition, he is required, pursuant to 28 USC 2244(b)(3)(A), to move in the Curt of appeals
for an order authorizing the district court to consider his application, As we have not been so authorized,

petition is dismissed for lack of jurisdiction. Ruling and or status date of 3/21/02 is stricken. Any

pending motions are moot.

ai) i

[For further detail see order attached to the original minute order.]

No notices required, advised in open court.

No notices required. umber of notices

Notices mailed by judge’s staff.

Notified counsel by telephone.

Docketing to mail notices.

Mail AO 450 form.

Copy to judge/magistrate judge.

courtroom
deputy’s
initials

GL

:Rateliimp received in

central Clerk’s Office mailing deputy initials



UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

Michael Wills,

Petitioner,
Case No. 02 C 0041
Vv.

United States,

Respondent.

DOCKETED

FEB 2 2 anpp

MEMORANDUM OPINION AND ORDER

MARVIN E. ASPEN, Chief Judge:
Michael Wills has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2255.
For the reasons below, we deny Wills’ petition.

PROCEDURAL BACKGROUND

On December 1, 1993, Michael Wills was convicted of conspiracy to traffic cocaine and of
using a telephone to facilitate the commission of narcotics offenses, in violation of 18 U.S.C, § 846
and 18 U.S.C. § 843(b), respectively. On July 14, 1994, the court sentenced Wills to a term of
imprisonment of 360 months and issued a special assessment against him for $100. Wills
conviction was affirmed by the Seventh Circuit, United States v. Banks, 122 F.3d 346 (7th Cir.
1997), and the United Stated Supreme Court denied him a writ of certiorari. Dunlap v. United
States, 522 U.S. 1033 (1997).

On November 20, 1997, Wills filed a pro se petition to vacate his sentence pursuant to
28 U.S.C. § 2255. This first habeas motion was denied on the merits by minute order on June 4,

1998,


On March 28, 1998, we granted Wills’ motion seeking modification of his sentence
pursuant to 18 U.S.C. § 3582(c).' This modification was based upon an amendment to the United
States Sentencing Guidelines. United States Sentencing Commission, Guidelines Manual
(Appendix C) Amendment 505 (Nov. 1995). Consequently and pursuant to the guidelines, we
reduced Wills’ sentence from 360 months to 250 months.

Wills has now filed a second motion for habeas relief pursuant to 28 U.S.C. § 2255. It is
difficult to ascertain precisely Wills’ claims from his pro se handwritten petition. Nonetheless,
given our duty to construe pro secomplaints liberally, Donald v. Cook County Sheriff's Dept.,
95 F.3d 548, 555 (7th Cir. 1996), we are able to glean the following arguments. First, Wills claims
that his concurrent sentences are contrary to the double jeopardy clause of the U.S. Constitution.
Second, he claims that the court's imposition of an assessment against him was in violation of the
double jeopardy clause of the U.S. Constitution. Finally, Wills claims a violation of due process
because his conviction does not meet the standards set forth in Apprendi v. New Jersey, 530
U.S. 466 (2000), and that this right should be retroactive on collateral review.

ANALYSIS ,

Absent authorization from the Court of Appeals, the District Court is without jurisdiction
to hear a successive habeas petition. 28 U.S.C. § 2244(b)(3)(A); Nunez v. United States, 96
F.3d 990 (7th Cir. 1996). It is on this basis that the United States asks us to dismiss Wills’ habeas
petition.

Wills argues that the instant petition is not a successive petition but rather his first petition
after his 1998 resentencing in this court. Wills claims that his habeas petition is merely the first
collateral attack on his 1998 resentencing proceeding. Were his habeas petition truly a collateral
attack on that resentencing proceeding, Wills would be correct. See Dahler v. United States,

259 F.3d 763,764 (7th Cir, 2001)(petitioner “is entitled to another [habeas petition] to the extent

‘Due to clerical oversight, the change in Wills’ sentence was not properly entered on the docket
until February 23, 2001.