Collins, Bobby v. USA

Filing 12


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NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1 To be cited only in accordance with of Appeals United States Court Fed. R. App. P. 32.1Not to be cited per Circuit Rule 53 For the Seventh Circuit Chicago, Illinois 60604 December 6, 2007 Before Hon. FRANK H. EASTERBROOK, Chief Judge Hon. WILLIAM J. BAUER, Circuit Judge Hon. DANIEL A. MANION, Circuit Judge No. 07-1820 BOBBY MARVIN COLLINS, Petitioner-Appellant, v. UNITED STATES OF AMERICA, Respondent-Appellee. Appeal from the United States District Court for the Western District of Wisconsin. No. 07 C 130 Barbara B. Crabb, Chief Judge. Order Bobby Collins, an inmate of the Federal Correctional Institution in Oxford, Wisconsin, filed in the Western District of Wisconsin a petition for a writ of habeas corpus under 28 U.S.C. 2241. The district court concluded that this petition should have been filed under 28 U.S.C. 2255, because it challenges the validity of petitioner's conviction, and dismissed it (rather than transferring it to the District of Minnesota, the right venue under 2255) because Collins has already filed and lost under 2255. Two assumptions appear to lie behind this ruling. One is that 2241 deals only with conditions of confinement and cannot be used to contest a conviction's validity. That is incorrect; 2241 by its terms covers any claim for release by a person who contends that his custody violates the Constitution or laws of the No. 07-1820 Page 2 United States. Until 1948, when 2255 was enacted, 2241 was the normal means of obtaining collateral review of federal convictions. Congress did not amend or repeal 2241 when 2255 was enacted--though paragraph 5 of 2255 makes that section the exclusive remedy unless "the remedy by motion is inadequate or ineffective to test the legality of his detention." The district court's other assumption is that the statutory limits on the number of actions invoking 2255, and the requirement of appellate approval for successive motions, also apply to proceedings under 2241. That assumption is inconsistent with Felker v. Turpin, 518 U.S. 651 (1996), which holds that changes made by the Antiterrorism and Effective Death Penalty Act of 1996 do not apply to proceedings under 2241. See also, e.g., Valona v. United States, 138 F.3d 693 (7th Cir. 1998). This is a genuine proceeding under 2241. Collins is in federal custody; the action was filed, against his custodian, in the district of custody. It cannot be treated as an action under 2255, because only the District of Minnesota may entertain such an action. Moreover, both the Supreme Court in Felker and this court in several opinions have held that judges must respect the plaintiff's choice of statute to invoke--whether 2241, 2255, or 42 U.S.C. 1983--and give the action the treatment appropriate under that law. See, e.g., Copus v. Edgerton, 96 F.3d 1038 (7th Cir. 1996). A motion in a criminal case--whether nominally under Fed. R. Crim. P. 33, or bearing an ancient title such as coram vobis or audita querela--may be treated as one under 2255, because the caption on a document does not matter. (Section 2255 authorizes motions "in" the original criminal case.) See, e.g., Melton v. United States, 359 F.3d 855 (7th Cir. 2004). Castro v. United States, 540 U.S. 375 (2003), adds that the district judge first must notify the movant of the consequences of this step and give him an opportunity to withdraw the request. Cf. Gonzalez v. Crosby, 545 U.S. 524 (2005) (motion nominally under Fed. R. Civ. P. 60(b) in an action seeking collateral relief may be treated as a successive request for collateral relief it it directly challenges the validity of the conviction or sentence). But 2241 and for that matter 1983 authorize distinct forms of relief in different courts. Persons who initiate independent litigation are entitled to have it resolved under the grant of authority that has been invoked. Collins contends that he is entitled to relief under 2241. If, as seems likely, 2255 offered him one full and fair opportunity to contest his conviction in Minnesota, then the 2241 action must be dismissed under 2255 5. But if for some reason 2255 did not offer him an adequate opportunity to test the validity of his conviction, then the district court must entertain this 2241 action on the merits. See In re Davenport, 147 F.3d 605 (7th Cir. 1998). VACATED AND REMANDED

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