In the

United States Court of Appeals

For the Seventh Circuit

No. 12-8003

IN RE:

CHILDERIC MAXY,

Petitioner.

On Petition for Permission to File.

SUBMITTED JANUARY 24, 2012—DECIDED MARCH 15, 2012

Before POSNER, ROVNER, and SYKES, Circuit Judges.

PER CURIAM. Childeric Maxy, a prisoner from

Wisconsin, is serving a 60-year sentence for attempted

murder, burglary-battery, and bail jumping. He received

a full round of collateral review by the federal courts,

Maxy v. Pollard, No. 05 C 479 (W.D. Wis. May 2, 2006)

(denying petition for a writ of habeas corpus), Maxy v.

Pollard, No. 06-2571 (7th Cir. Sept. 16, 2006) (denying a

certificate of appealability), and his first application

under 28 U.S.C. § 2244(b) for permission to mount a

second collateral attack was denied, Maxy v. Thurmer,

No. 09-1282 (7th Cir. Feb. 24, 2009).
2 No. 12-8003

Now before the court are papers Maxy labels a

motion, in which he informs us that he intends to file

a second § 2244(b) application. Maxy explains that the

application will be untimely because the prison limits

his use of the copy machine, thereby delaying his ability

to comply with the rules of this circuit. Maxy asks us

to excuse the untimeliness of the forthcoming application and to order the prison to allow him expanded use

of the copier. He does not, however, disclose the claims

he wishes to bring in a second petition for a writ of

habeas corpus or the documents he is unable to obtain.

When reviewing an application for authorization to

file a second or successive collateral attack, the timeliness rules that govern the underlying collateral attack—

§ 2244(d) in the case of a petition for a writ of habeas

corpus and § 2255(e) for motions to vacate (the

corollary for federal prisoners)—generally apply. Johnson

v. Robert, 431 F.3d 992 (7th Cir. 2005). But Maxy’s

request to forgive the untimeliness of his forthcoming

application is premature. There is no possible way to

apply the timeliness rules when we don’t even know

that the papers will be late; Maxy may propose a claim

that relies on a new rule announced within one year of

the papers, see § 2244(d)(1)(C), or he may be able to

show a state-created impediment that was lifted within

one year of filing, see § 2244(d)(1)(B). If, on the other

hand, the papers are late and he requests equitable

tolling, we have no way of knowing if the as-yet undetermined length of the delay will be reasonable given the

constraints he alleges. An analysis of timeliness must

wait for the papers to which the question applies.
No. 12-8003 3

Maxy also requests an order directing prison officials

to allow him expanded use of a copy machine so that

he can file an application that complies with the rules of

this circuit court. Although the pleadings are vague

regarding the specific documents he is having trouble

producing, Circuit Rule 22.2(a) requires Maxy to

submit copies of numerous legal documents from his

prior cases, and Federal Rule of Appellate Procedure 21(d)

requires him to file an original and three copies of

the application. We understand this part of Maxy’s pleadings as a request for relief against the prison’s alleged

infringement of his right of access to the courts.

Prisoners have a fundamental right of access to the

courts that prisons must facilitate by providing legal

assistance. Bounds v. Smith, 430 U.S. 817 (1977). The right

of access, however, is not “an abstract freestanding right

to a law library or legal assistance.” Lewis v. Casey, 518

U.S. 343, 351 (1996). Instead, prisons are obligated to

assist or, put another way, may not impinge on a

prisoner’s efforts to pursue a legal claim attacking, as

relevant here, his criminal judgment. Casey, 518 U.S. at

355. Maxy’s papers adequately allege that the prison’s

limitation on his use of a copier is impeding his ability

to pursue a claim against his conviction.

But to satisfactorily state a claim for an infringement

of the right of access, prisoners must also allege an actual

injury. Casey, 518 U.S. at 353; Ortiz v. Downey, 561 F.3d

664, 671 (7th Cir. 2009) (“That right [to access courts] is

violated when a prisoner is deprived of such access

and suffers actual injury as a result.”). That is, they
4 No. 12-8003

must allege that some action by the prison has frustrated

or is impeding an attempt to bring a nonfrivolous legal

claim. Christopher v. Harbury, 536 U.S. 403, 415 (2002)

(“[E]ven in forward-looking prisoner class actions to

remove roadblocks to future litigation, the named plaintiff must identify a ‘nonfrivolous,’ ‘arguable’ underlying

claim.”); Marshall v. Knight, 445 F.3d 965, 968 (7th Cir. 2006)

(“[T]he mere denial of access to a prison library or to

other legal materials is not itself a violation of a prisoner’s rights; his right is to access the courts, and only

if the defendants’ conduct prejudices a potentially meritorious challenge to the prisoner’s conviction [or] sentence . . . has this right been denied.”); Oliver v. Fauver,

118 F.3d 175 (3d Cir. 1997) (assuming that delay caused

by the return to prisoner of his legal mail was an impediment to accessing the courts; no injury because papers

were in fact accepted and addressed by the court in

the underlying lawsuit). Relief for the denial of access

to the courts is intended to remedy rights denied in

a separate case due to the impediment: “[T]he very point

of recognizing any access claim is to provide effective

vindication for a separate and distinct right to seek

judicial relief for some wrong. . . . [T]he right is ancillary

to the underlying claim, without which a plaintiff

cannot have suffered injury by being shut out of court.”

Harbury, 536 U.S. at 414-15.

It is here that Maxy’s claim fails. Although he adequately alleged that prison action is frustrating his

attempt to file an application, he does not inform us of

the underlying legal claims frustrated by the delay. And

it is the underlying claims he intends to propose in the
No. 12-8003 5

application that will demonstrate whether he has a

nonfrivolous, arguable claim for authorization. Compare

McCree v. Grissom, 657 F.3d 623, 624 (7th Cir. 2011)

(“McCree pursued his appeal [in an underlying § 1983

case]; we concluded, however, that his complaint did not

state a claim. Without a tenable argument to pursue in

that suit, McCree cannot show prejudice resulting from

the denial of his access to the [prison] law library.”)

(citation to underlying decision omitted). Maxy’s omission

means that he has not alleged an actual injury from

the prison rules limiting his use of the copy machine.

Therefore, he does not state a claim for the denial of his

right to access the courts and we deny his motion for

an order instructing the prison to allow him greater

access to a copier.

That Maxy fails to state an access claim does not close

the door on his petition. We can grant discretionary

relief from the requirements of circuit rules in appropriate cases. See McNeil v. United States, 508 U.S. 106,

113 (1993) (“Our rules of procedure are based on the

assumption that litigation is normally conducted by

lawyers. . . . [And we] have held that some procedural

rules must give way because of the unique circumstances

of incarceration.”) (citing Houston v. Lack, 487 U.S. 266

(1988)); GCIU Emp’r Ret. Fund v. Chicago Trib. Co., 66 F.3d

862, 864 (7th Cir. 1995) (“[B]ecause of the importance

of questions raised on appeal, the court [may] overlook

alleged inadequacies in an appellant’s appendix and

consider the merits of an appeal.”). See also Cir. R. 2 (“In

the interest of expediting decision or for other good

cause, the court may suspend the requirements of these
6 No. 12-8003

Circuit Rules.”). We discuss what constitutes an appropriate case for the exercise of discretion first in the

context of Circuit Rule 22.2 and then Appellate Rule 21(d).

Circuit Rule 22.2 states,

(a) A request under 28 U.S.C. §2244(b) or the final

paragraph of 28 U.S.C. §2255 . . . must include the

following information and attachments, in this order:

. . . 

(4) Copies of all opinions rendered by any state or

federal court previously rendered in the criminal

prosecution, any appeal, and any collateral attack.

(5) Copies of all prior petitions or motions for

collateral review.

Rule 22.2(e) concludes that “[a]n applicant’s failure to

supply the information and documents required by this

rule will lead the court to dismiss the application, but

without prejudice to its renewal in proper form.” The

document requirement covers the spectrum and, as

demonstrated by this case, compliance is especially

difficult for incarcerated applicants who are proceeding

pro se. See Casey, 518 U.S. at 355 (acknowledging limitations incident to incarceration making litigation more

difficult); McNeil, 508 U.S. at 113.

In 1996, when Circuit Rule 22.2 was written, legal

documents from closed cases were not readily available

to the courts. Once the decision in a case became final,

the record was sent to an archive and not easily retrieved.

One of the original purposes of subsections (a)(4) and (5)
No. 12-8003 7

was to force applicants, who presumably had readier

access to the papers from their earlier cases, to provide

the court with the information necessary to apply

§ 2244(b)(1), which prohibits the authorization of proposed claims that have previously been presented to

a court.

Another goal of subsection (a)(5) is to assist in the

determination of whether an applicant actually requires

authorization to proceed on the action proposed by the

application. The rules governing who must obtain preapproval to proceed are intricate and confusing even

for lawyers. And prisoners proceeding pro se and

without any legal training may not understand the

legal repercussion of an earlier decision. It is not

unusual for a prisoner to believe he needs authorization

when he does not. See, e.g., Pavlovsky v. VanNatta, 431

F.3d 1063 (7th Cir. 2005) (earlier collateral attack

explicitly dismissed without prejudice despite its

decision on the merits); Shepeck v. United States, 150

F.3d 800 (7th Cir. 1998) (earlier collateral attack was

successful); Valona v. United States, 138 F.3d 693 (7th

Cir. 1998) (prior collateral attack challenged a different

source of custody); O’Connor v. United States, 133 F.3d

548 (7th Cir. 1998) (earlier collateral attack was dismissed because the criminal case was still pending).

Since Rule 22.2 was adopted, technological advances

have made accessing papers from earlier cases considerably easier. Electronic filing and storage of legal papers

filed in the federal courts is now the norm and, thus,

those papers are readily available to successor courts.
8 No. 12-8003

Circuit Rule 25(b) excuses unrepresented litigants from the 1

electronic filing requirement.

3-15-12

Thus, for example, we have independently obtained and

reviewed the papers from Maxy’s initial collateral attack

and his first application. Therefore, we can say with

certainty that he requires authorization to proceed on a

habeas corpus petition attacking his 60-year sentence for

attempted murder, burglary-battery, and bail jumping.

Likewise, when we receive the forthcoming application, we will be able to compare it and his earlier

pleadings to determine whether § 2244(b)(1) prohibits

authorization.

Technological advances also take care of the requirement that individuals filing original actions in this

court, like a § 2244(b) application, must file an original

and three copies of their pleadings. Fed. R. App. P. 21(d).

Before electronic filing was possible, the expense of

making sufficient copies to make the record and for

review by a panel of three judges rightfully fell to the

litigants. Now, however, a single paper copy submitted

by a pro se prisoner may be scanned and distributed to 1

the court at virtually no extra cost.

Under these circumstances, we are comfortable excusing Maxy from complying with Rule 22.2(a)(4) and (5)

and Appellate Rule 21(d). 

IT IS SO ORDERED.