Edward Allen v. United States of America

*After examining the briefs and the record, we have concluded that oral
argument is unnecessary. Thus, the appeal is submitted on the briefs and the record.
See Fed. R. App. P. 34(a)(2).
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted September 26, 2007*
Decided October 4, 2007
Before
Hon. FRANK H. EASTERBROOK, Chief Judge
Hon. JOHN L. COFFEY, Circuit Judge
Hon. JOEL M. FLAUM, Circuit Judge
No. 06-2747
EDWARD ALLEN,
Petitioner-Appellant,
v.
UNITED STATES OF AMERICA,
Respondent-Appellee.
Appeal from the United States District
Court for the Northern District of Illinois,
Eastern Division.
No. 01 CR 169-1
William T. Hart,
Judge.
O R D E R
After robbing three banks (one of them, twice) in Chicago and Oak Park,
Illinois, Edward Allen was found guilty of two counts of bank robbery in the federal
courts. See 18 U.S.C. § 2113(a). The district court sentenced him to a total of 264
months’ imprisonment. More than four years after the entry of judgment, Allen
filed what he styled as a motion to vacate the judgment under Federal Rule of Civil
Procedure 60(b). He claimed that his guilty pleas were involuntary because neither
the prosecutor nor his own counsel told him about the Statutes at Large—a failure
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1

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No. 06-2747 Page 2
that, according to Allen, prevented him from understanding the robbery charges.
The district court summarily denied the motion, and Allen appeals.
Allen’s motion presents a claim for relief that is substantively within the
scope of 28 U.S.C. § 2255 ¶ 1, and so the government argues that the submission is
a motion under § 2255 and that we should dismiss this appeal because Allen did not
obtain a certificate of appealability. See, e.g., United States v. Carraway, 478 F.3d
845, 849 (7th Cir. 2007); Melton v. United States, 359 F.3d 855, 857 (7th Cir. 2004).
The district court did not say what characterization it gave the motion, though the
absence of any warning to Allen suggests that the court rejected the reading now
urged by the government. See United States v. Castro, 540 U.S. 375, 383 (2003);
Melton, 359 F.3d at 857. In any event, Allen’s submission is frivolous, and in this
court he concedes that “the district court had no grounds to grant the motion.”
Allen offers a different claim here—that his trial lawyer failed to file a notice of
appeal as directed—and whereas that contention is not raised in Allen’s motion it is
thus waived. See Estremera v. United States, 442 F.3d 580, 587 (7th Cir. 2006).
AFFIRMED.

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