Frank Moore v. KEITH E. OLSON , Warden, United States Penitentiary, Terre Haute, Indiana

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-4053
F RANK M OORE ,
Petitioner-Appellant,
v.
K EITH E. O LSON , Warden, United States
Penitentiary, Terre Haute, Indiana,
Respondent-Appellee.
____________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 01 C 9842—Robert W. Gettleman, Judge.
____________
A RGUED A PRIL 2, 2004—D ECIDED M AY 17, 2004
____________
Before E ASTERBROOK , M ANION , and W ILLIAMS , Circuit
Judges.
E ASTERBROOK , Circuit Judge. The caption of this opinion
reveals a problem: federal judges are entitled to issue writs
of habeas corpus “within their respective jurisdictions”, 28
U.S.C. §2241(a), and Indiana lies outside the Northern
District of Illinois. When the case began, the respondent
was the Warden of the United States Penitentiary at
Leavenworth, Kansas, which is not even within the Seventh
Circuit. Surprisingly, the district court held that it was

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2 No. 03-4053
nevertheless authorized to adjudicate the petition. 284 F.
Supp. 2d 1092 (N.D. Ill. 2003). Almost as surprisingly, the
respondent, having contested jurisdiction vigorously in the
district court, ignored that subject on appeal, apparently
believing that a victory on the merits (the district judge
denied Moore’s petition) was superior to a jurisdictional
dismissal. We raised at oral argument the question whether
a custodian located outside a judicial district is authorized
to consent to a decision on the merits. See Ahrens v. Clark,
335 U.S. 188, 193 (1948) (holding that because the parties’
location is a “jurisdictional” question on collateral review,
a custodian’s waiver or forfeiture is ineffectual). In
post-argument filings, Moore’s custodian switched sides
again, insisting that the district court lacked subject-matter
jurisdiction and that the issue therefore can be neither
waived nor forfeited. We conclude, to the contrary, that
after Braden v. 30th Judicial Circuit Court, 410 U.S. 484
(1973), which overruled Ahrens, the location of a collateral
attack is best understood as a matter of venue, which
means that both waiver and forfeiture are possible.
The Parole Commission revoked Moore’s parole after con-
cluding that he had committed a murder. While an adminis-
trative appeal was pending, and Moore was held at the
Metropolitan Correctional Center in Chicago, he filed a
petition under §2241(a). The district court correctly dis-
missed this petition as premature, for Moore had yet
to exhaust his administrative remedies. By the time the
Commission’s decision became final, Moore was at USP
Leavenworth. Instead of filing a petition in Kansas, how-
ever, Moore asked the judge to reopen the proceeding in
Illinois. The judge obliged and held that this maneuver
enabled the court to assert jurisdiction over Moore’s new
custodian. That decision is hard to reconcile with the
principle that the litigation must occur in the district of the
prisoner’s custody. See, e.g., al-Marri v. Rumsfeld, 360 F.3d
707 (7th Cir. 2004). A prisoner transferred while litigation

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No. 03-4053 3
is pending need not re-file in the new district, see Ex parte
Endo, 323 U.S. 283 (1944), but no suit was pending when
Moore left Illinois for Kansas. Filing new pleadings in a
long-dismissed action—and naming a different respondent
to boot—does not alter the fact that district judges may
resolve claims under §2241 only when the custodian is local.
Perhaps the old action could have been revived had Moore
remained in Chicago, but an action against a different
custodian is a new action, which should have commenced in
Kansas.
Having prevailed on the merits, however, the Warden of
Leavenworth initially elected not to contest this issue on
appeal. He switched sides in a post-argument memoran-
dum. This is not the only problem linked to the location of
Moore’s custody. The Department of Justice, which both
operates the Federal Bureau of Prisons and represents
the warden, appears to have disregarded Fed. R. App. P.
23(a), which requires judicial approval of transfer during
appellate review of a proceeding seeking a writ of habeas
corpus. Moore has been moved to USP Terre Haute without
any judge’s permission. Counsel also violated Circuit Rule
43, which requires notice to this court that a prisoner has
been moved and substitution of the new custodian. The
Department’s brief and post-argument memorandum both
identify N.L. Conner, the Warden of Leavenworth, as the
respondent even though Moore was transferred to Terre
Haute earlier. Moore has not sought return to Leavenworth,
and no other remedy would be appropriate, but the perfor-
mance of the Department of Justice in this court is a
disappointment.
Defendants are entitled to waive any shortcomings in
venue or jurisdiction over the person; these issues also may
be forfeited by failure to present them at the proper time.
Defects in subject-matter jurisdiction, however, may not be
waived or forfeited. Courts often use the word “jurisdiction”
when referring to §2241(a)’s requirement—understandably,

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4 No. 03-4053
as the word appears in the statute—but without distin-
guishing among subject-matter jurisdiction, jurisdiction
over the person of the custodian, and the court’s territorial
extent (a species of venue). Ahrens must have assumed that
the issue is one of subject-matter jurisdiction, as it said that
the issue could not be waived, but did not explain why.
Braden overruled Ahrens but did not distinguish between
rejecting its technical holding— which was that the pres-
ence of the detained person (in addition to the custodian)
within the territory of the federal judicial district is
essential—and disapproving its assumption that the locus
of the suit concerns subject-matter jurisdiction. In between
these two decisions, Schlanger v. Seamans, 401 U.S. 487,
490-91 (1971), referred to the matter as one of “territorial
jurisdiction”, which implies that the issue is one of venue
rather than either subject-matter or personal jurisdiction,
but once again the Court did not explain why.
Section 2241(a) uses the word “jurisdiction” in a way that
suggests equivalence to “the territory within the judicial
district.” Braden holds that the detained person need not be
in that district. This decision allows a petitioner serving
consecutive sentences (or facing trial in another state) to
challenge his future custody as well as his current custody,
provided that the litigation takes place where the custodian
may be found. We did not need to choose in al-Marri among
the ways to characterize this requirement. Braden suggests,
however, that it is a matter of both jurisdiction over the
person (the custodian must be within reach of the district
court’s process) and venue, with §2241 taken as a special
venue rule superseding 28 U.S.C. §1391(e) to the extent of
any conflict. That is the implication not only of §2241(a) but
also of §2241(d), which provides that, when a prisoner
sentenced within one part of a state that has multiple
federal districts is being held outside that district but still
within that state, the petition may be filed in the district
where the sentence was imposed. Section 2241(d) is so

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No. 03-4053 5
clearly a special venue provision that it becomes jarring to
read §2241(a) as a rule of subject-matter jurisdiction; if it
were so read, it would nullify the effect of §2241(d). All of
the subsections make sense, however, if understood to
determine the venue of collateral litigation. The need for
personal jurisdiction over the custodian comes from general
principles outside §2241 itself. Subject-matter jurisdiction,
however, is supplied by 28 U.S.C. §1331, as any claim under
§2241 entails a federal question.
Because the word “jurisdiction” is such a chameleon,
referring (according to context) to the adjudicatory com-
petence of the court, the amenability of the defendant to
process in the district, the territory of the judicial district,
the time at which critical documents (e.g., a claim in bank-
ruptcy) are filed, and many other subjects, it becomes easy
to confuse those jurisdictional issues that a court must raise
on its own with those that the parties may waive or forfeit.
The Supreme Court observed in Kontrick v. Ryan, 124 S. Ct.
906 (2004), and reiterated in Scarborough v. Principi, No.
02-1657 (May 3, 2004), slip op. 9-11, that only the limits of
federal courts’ adjudicatory competence should be sorted
into the subject-matter-jurisdiction bin. If Congress has
authorized federal courts to resolve particular claims, and
if the claim presents a case or controversy within the scope
of Article III, then federal courts have subject-matter
jurisdiction. These conditions are satisfied here: Congress
has authorized the federal judiciary to resolve Moore’s claim
of entitlement to immediate release, and his petition falls
within Article III. Whether that litigation should take place
in Illinois or Kansas is a question of venue, not of sub-
ject-matter jurisdiction. Warden Conner, the respondent
when the post-exhaustion litigation began, has not con-
tested service of process and could not do so, as Fed. R. Civ.
P. 4(i)(2)(A) creates national service for federal employees
sued in their official capacities. Thus only venue is at stake,
and the defense of improper venue was forfeited when it

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6 No. 03-4053
was omitted from the custodian’s opening brief.
On to the merits. The Parole Commission concluded that
Moore killed Gary Horton, a crime of which he was con-
victed by a jury in a state prosecution. The state’s appellate
court reversed the conviction after concluding that the
evidence was insufficient to demonstrate guilt. See People
v. Moore, No. 2-99-0564 (Ill. App. 2d Dist. Nov. 28, 2000).
Moore insists that this decision shows that he did not
commit the offense, and thus that his parole cannot be
revoked, but to say that a charge has not been established
beyond a reasonable doubt is not to say that the accused
was innocent. That is why a criminal act may be taken into
account in federal sentencing (for a different offense) even
after a jury has acquitted the defendant. See United States
v. Watts, 519 U.S. 148 (1997). Moore received a federal
hearing, and the Commission concluded by a preponderance
of the evidence (the right standard) that he had murdered
Horton. On review under §2241(a), the only question is
whether some evidence supports the Commission’s decision.
See Kramer v. Jenkins, 803 F.2d 896 (7th Cir. 1986). To this
question the answer is yes.
Moore had been in Horton’s company on the final night of
Horton’s life (so much is common ground), and after a
dispute about drug money Horton ended up dead—shot and
then burned. Etta Bunch, Moore’s companion that evening,
told the police (and testified at Horton’s state trial) that
she, Moore, and Horton spent much of that evening cruising
in Moore’s van. According to Bunch, she was dozing in the
back seat in a drug-induced stupor when she heard two or
three bangs; by the time she was fully alert Horton was
gone. Police recovered two spent cartridges at the place
where Bunch said she had heard the bangs. A cellmate to
whom Moore explained his role in the events testified at the
state trial that Moore had confessed killing Horton. Moore
contends that this evidence was unreliable, and that may
well be. Jailhouse informants do not have sterling track

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No. 03-4053 7
records. Moreover, Bunch later changed her story and
insisted that Moore had dropped Horton off at a friend’s
house that evening (an undisputed point) and never again
picked him up (a hotly disputed point). If Bunch’s second
version is correct, then Moore did not kill Horton—at least
not in the way Bunch and the informant described the
events. But this just shows that there was a tough factual
issue for the Commission. It resolved credibility matters
adversely to Moore, and collateral review under §2241 does
not permit the federal judiciary to make an independent
decision. The district judge deemed it significant that the
jailhouse informant related that Horton had been burned
after the shooting, a fact not released to the public. Moore
maintains that knowledge of Horton’s burning could have
reached the informant after Moore discussed discovery
material with a different prisoner, and if so the inference
that Moore confessed to the informant is not as strong, but
the fact remains that there is some evidence that Moore
was the killer. The resulting incarceration is not “punish-
ment for a murder he did not commit,” as Moore would have
it, but insistence that he complete his federal sentence for
armed robbery, the crime from which he had been paroled.
Moore concedes violating the terms of his parole by becom-
ing involved in drugs; the Commission found that he also
had possessed a firearm, a second violation; that the
Commission thought his final tally of transgressions even
longer, and the appropriate response a return to prison
until mandatory release in 2005, is not so obviously unsup-
ported that relief under §2241 is warranted.
A FFIRMED .

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8 No. 03-4053
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—5-17-04

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