In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 02-3875

CHARLES B. THOMAS,

Petitioner-Appellant,

v.

UNITED STATES OF AMERICA,

Respondent-Appellee.

____________

Appeal from the United States District Court

for the Southern District of Illinois.

No. 00-4304 (98-40044)—J. Phil Gilbert, Judge.

____________

On Petition for Rehearing

and Rehearing En Banc

____________

DECIDED—APRIL 16, 2003

____________

Before EASTERBROOK, EVANS, and WILLIAMS, Circuit

Judges.

EASTERBROOK, Circuit Judge. Charles Thomas is serving a term of 300 months’ imprisonment for possessing

crack cocaine with intent to distribute. We affirmed his

conviction on direct appeal. United States v. Thomas,

No. 99-2455 (7th Cir. Feb. 7, 2000) (unpublished order).

After the Supreme Court denied his petition for certiorari,

531 U.S. 969 (2000), Thomas commenced a collateral attack

under 28 U.S.C. §2255. The district court denied his peti-
2 No. 02-3875

tion and declined to issue a certificate of appealability.

See 28 U.S.C. §2253(c). Under this court’s Operating Procedure 1(a)(1), his appeal was submitted to two judges, who

considered independently whether Thomas’s contentions

meet the standard for a certificate. Both judges gave a

negative answer. Once two judges have concluded that

appeal does not present any substantial issue, the appellant has no prospect of success on the merits (for two is

a majority of a three-judge panel), and the application is

not referred to a third circuit judge. Thus the court issued

an order denying Thomas’s request for such a certificate,

a step that brought his appeal to a close. Thomas v. United

States, No. 02-3875 (7th Cir. Feb. 7, 2003) (unpublished

order).

Thomas then filed what he styles a “Petition for Rehearing and/or Rehearing (En Banc)”. It poses a number of

questions about how we should handle prisoners’ filings

after the court has declined to issue a certificate of

appealability. None of the Federal Rules of Appellate

Procedure, the Rules of the Seventh Circuit, or the circuit’s

Operating Procedures addresses these issues. The court

therefore submitted Thomas’s request to the three-judge

motions panel that was serving at the time two of the three

had acted on his request for a certificate.

1. The first question is whether a prisoner can obtain

reconsideration of a decision not to issue a certificate of appealability. No statute or rule forbids such a step; §2253

does not have language parallel to 28 U.S.C. §2244(b)(3)(e),

which says that an order denying permission to commence

a second or successive collateral attack may not be reviewed by rehearing or certiorari. Still, if reconsideration

would amount to the commencement of a second collateral

attack, then the prisoner must satisfy the criteria for that

measure (see §2244(b)(3), §2255 ¶8) rather than the lower

threshold of §2253(c). Some post-decision motions in a collateral attack must be treated as equivalent to efforts to
No. 02-3875 3

launch additional collateral proceedings; one example, from

Calderon v. Thompson, 523 U.S. 538, 553-54 (1998), is an

application to recall the appellate mandate. Similarly, a

motion filed in the district court under Fed. R. Civ. P. 60(b),

after the time for appeal has expired, usually must be

treated as a new collateral attack. See, e.g., Dunlap v.

Litscher, 301 F.3d 873 (7th Cir. 2002); Burris v. Parke, 130

F.3d 782 (7th Cir. 1997). But a motion in the district court

before time to appeal has run does not come within this

rule, see Johnson v. United States, 196 F.3d 802 (7th Cir.

1999), and likewise with a motion in the court of appeals

while time remains under Fed. R. App. P. 40(a)(1). A timely

request for reconsideration is a motion in the original case,

not a disguised effort to start a new case. Thomas filed his

petition within the time allowed by Rule 40(a)(1), so it is

properly before us.

2. There is some doubt whether such a document should

be called a “petition for rehearing” or instead a “motion for

reconsideration”—though the caption is semantic rather

than substantive. For most purposes it makes sense to limit the phrase “petition for rehearing” to a request for review of a panel’s decision on the merits. Someone displeased with another kind of decision—for example, an

order by a motions judge denying a request to file a brief

longer than the cap in Fed. R. App. P. 32—files a motion for

reconsideration. A decision by two judges, considering

the papers seriatim, that the prisoner has not demonstrated the existence of a substantial constitutional question, falls somewhere in between. It is not a decision “on

the merits”: Miller-El v. Cockrell, 123 S. Ct. 1029 (2003),

holds that the merits differ from the criteria for a certificate of appealability. Many prisoners who seem likely

to lose in the court of appeals nonetheless are entitled to

certificates of appealability under the statutory standard;

meritorious appeals are a subset of those in which a

certificate should issue. Yet the denial of a certificate
4 No. 02-3875

concludes the appeal; it has the same effect as an adverse

decision on the merits. A request for reconsideration therefore should be treated the same as a petition for rehearing, no matter what caption it bears—first because denial ends the appeal, and second because a belief that the

appellant is entitled to prevail on the merits means that

a certificate of appealability should have issued.

3. This implies that a two-judge decision declining to

issue a certificate of appealability is eligible for rehearing

en banc, even though neither Fed. R. App. P. 35 nor Circuit

Rule 35 contemplates en banc review of an ordinary motion.

A request for a certificate is enough to put the case “in” the

court of appeals. See Hohn v. United States, 524 U.S. 236

(1998). Denial thus may be reviewed by the Supreme Court

on writ of certiorari, as in Hohn, Miller-El, and Slack v.

McDaniel, 529 U.S. 473 (2000). Any order that terminates

the appeal, and may be reviewed by the Supreme Court,

also should be eligible for review by the full court of appeals. Occasionally the denial of a request for a certificate

of appealability will present the sort of legal question that

justifies rehearing en banc; that option should be available, even though the search for a needle in the haystack

of pro se motions has a potential to tax this court’s resources (as the forma pauperis docket taxes the Supreme

Court’s). Consequently, a document (whether styled “petition for rehearing” or “motion for reconsideration”) that

seeks review by the court en banc will be distributed to all

active judges. This has been done with Thomas’s petition.

4. There remains the question how judges who were

not on the motions panel should deal with the petition.

Does it invite each active judge (11 on this court; up to 28

elsewhere) to decide independently whether a substantial

constitutional issue has been presented and issue a certificate unilaterally? We think not. This court resolved

when it adopted Operating Procedure 1(a)(1) that only

two circuit judges would conduct the review required by
No. 02-3875 5

§2253(c). A request for rehearing en banc poses, not the

question whether any particular active judge would deem

a constitutional issue substantial, but whether an important and controlling issue of law requires resolution by

the full court—either to maintain uniformity within the

court or to resolve a question of exceptional importance.

That is the standard set by Fed. R. App. P. 35(a). An appeal

does not come before any of the judges (other than the

two who acted under Operating Procedure 1(a)(1)) for

decision unless en banc review first is granted; otherwise

the panel’s resolution stands. Moreover, even when rehearing en banc is granted, this does not empower any particular judge to issue a certificate unilaterally; once the case

has been set for hearing en banc, the majority prevails.

That is why none of the Justices in Hohn, Slack, or MillerEl unilaterally issued a certificate of appealability (a

step that would have made further consideration unnecessary in each of these cases).

To sum up: an order declining to issue a certificate

of appealability is subject to rehearing by the panel (on

timely motion) and review by the court en banc—but, unless

rehearing en banc is granted, a certificate of appealability will issue only if one of the judges to whom the application was referred under Operating Procedure 1(a)(1) concludes, on reconsideration, that the statutory criteria for

a certificate have been met.

Because this opinion clarifies the operating procedure

of the court, it was circulated to all active judges under

Circuit Rule 40(e). No judge favored rehearing en banc.

This motions panel unanimously concludes that the

standards of §2253(c) have not been met and that a certificate of appealability should not be issued. Thomas’s

principal argument is that the indictment was fatally

defective because it did not specify the quantity of crack

cocaine that he possessed with intent to distribute. This
6 No. 02-3875

argument is not substantial, given cases such as United

States v. Cotton, 535 U.S. 625 (2002), and United States v.

Bjorkman, 270 F.3d 482, 490-92 (7th Cir. 2001). Bjorkman

holds that Apprendi v. New Jersey, 530 U.S. 466 (2000),

does not make drug quantity an “element” of the offense

under 21 U.S.C. §841, and Cotton holds that failure to

allege and prove a particular quantity does not deprive

the district court of jurisdiction or otherwise automatically render the judgment invalid. Thomas’s 300-month

sentence is lawful if a properly instructed jury would

have found, beyond a reasonable doubt, that Thomas

possessed with intent to distribute at least 5 grams of crack

cocaine. See 21 U.S.C. §841(b)(1)(B)(iii) (40-year maximum on conviction of crime involving 5 or more grams of

crack). Thomas concedes that 7 grams were seized from his

home, and he does not seriously deny that he planned to

distribute this much. The findings of additional relevant

conduct, which raised the Guideline range, are not subject to Apprendi’s holding; relevant conduct is ascertained

by a judge on the preponderance standard, provided

that the statutory maximum is respected. See Edwards

v. United States, 523 U.S. 511 (1998). Thomas’s other

arguments are insubstantial, individually and collectively, for the reasons given by the district judge. The petition for rehearing therefore is denied.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—4-16-03