Stephen Susinka v. USA
Filed opinion of the court by Judge Posner. We therefore have no alternative to dismissing Susinka s application. Diane P. Wood, Chief Judge; Richard A. Posner, Circuit Judge and Frank H. Easterbrook, Circuit Judge. [6817591-1]  [17-1110]
United States Court of Appeals
For the Seventh Circuit
UNITED STATES OF AMERICA,
Motion for an Order Authorizing the District Court of the Northern
District of Illinois, Eastern Division, to Entertain a Second or Successive
Motion for Collateral Review.
SUBMITTED JANUARY 17, 2017 — DECIDED FEBRUARY 9, 2017
Before WOOD, Chief Judge, and POSNER and EASTERBROOK,
POSNER, Circuit Judge. Stephen Susinka has filed his third
application for permission to file a successive motion under
28 U.S.C. § 2255 to vacate his 20‐year sentence for participat‐
ing in a RICO conspiracy. He wants to challenge his sentence
on the authority of Hurst v. Florida, 136 S. Ct. 616 (2016),
which held that Florida’s sentencing procedure for capital
cases, whereby the jury delivers an advisory verdict but the
judge decides whether to impose a death sentence, violated a
defendant’s Sixth Amendment right to a jury trial. Id. at 620–
21. Of course the present case is not a capital case; and any‐
way Hurst was decided in January 2016—months before
Susinka filed either of his previous applications, and 28
U.S.C. § 2255(h)(2) permits a successive motion to vacate a
sentence on the basis of a new rule of constitutional law only
if the new rule was previously unavailable to the movant,
which it was not in this case.
Nor can Susinka prevail by basing his motion on newly
discovered evidence, even though 28 U.S.C. § 2255(a) pro‐
vides that “a prisoner in custody under sentence of a court
established by Act of Congress claiming the right to be re‐
leased upon the ground that the sentence was imposed in
violation of the Constitution or laws of the United States, or
that the court was without jurisdiction to impose such sen‐
tence, or that the sentence was in excess of the maximum au‐
thorized by law, or is otherwise subject to collateral attack,
may move the court which imposed the sentence to vacate,
set aside or correct the sentence.” For if the motion is reject‐
ed and the prisoner later files a new motion, even one based
on a valid ground, that motion must be “certified … by a
panel of the appropriate court of appeals to contain … newly
discovered evidence that, if proven and viewed in light of
the evidence as a whole, would be sufficient to establish by
clear and convincing evidence that no reasonable factfinder
would have found the movant guilty of the offense.” 28 U.S.C.
§ 2255(h)(1) (emphasis added).
That is a very harsh rule for a prisoner who, like Susinka,
is not challenging his guilt of the offense—in effect he is ac‐
knowledging his guilt—but only the severity of the sentence.
For by virtue of the rule just quoted he could get nowhere
even with new facts that proved conclusively that his sen‐
tence was indeed too long—could get nowhere for having
failed to challenge an irrelevancy: his conviction, irrelevant
because he is not challenging it, but only his sentence. As
explained in Hope v. United States, 108 F.3d 119, 120 (7th Cir.
1997), “a successive motion under 28 U.S.C. § 2255 … may
not be filed on the basis of newly discovered evidence unless
the motion challenges the conviction and not merely the sen‐
tence.” That is an unavoidably correct reading of 28 U.S.C.
§ 2255(h)(1), whether we like it or not.
We therefore have no alternative to dismissing Susinka’s
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