Lamar Harris v. Warden , Usp Lee

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-4336
L AMAR H ARRIS ,
Petitioner-Appellant,
v.
W ARDEN , USP L EE ,
Respondent-Appellee.
____________
Appeal from the United States District Court
for the Southern District of Illinois.
No. 02-779—James L. Foreman, Judge.
____________
S UBMITTED S EPTEMBER 13, 2005—D ECIDED S EPTEMBER 28, 2005
____________
Before E ASTERBROOK , K ANNE , and W ILLIAMS , Circuit
Judges.
E ASTERBROOK , Circuit Judge. Lamar Harris has been
sentenced to life in prison for violating federal drug and
weapons statutes. See United States v. Harris, 959 F.2d 246
(D.C. Cir. 1992). He was convicted on 15 counts. Three of
the drug convictions resulted in life sentences; most of the
12 terms of years ran concurrently with the life sentences,
but a few are consecutive, so the full package was life plus
55 years. In a series of post-conviction filings, Harris has
challenged several of his convictions, and after Bailey v.
United States, 516 U.S. 137 (1995), the sentencing court
(the United States District Court for the District of Colum-
bia) vacated five of his convictions under 18 U.S.C. §924(c).

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2 No. 04-4336
Sentences on some of these counts had run consecutively to
the life sentences, but given the abolition of parole in the
federal system “life” and “life plus x years” come to the
same thing, so the decision did not provide a practical
benefit. Harris sought a certificate of appealability in order
to contend on appeal that a sixth §924(c) conviction should
be vacated; the D.C. Circuit denied this application. After
the decision in United States v. Stewart, 246 F.3d 728 (D.C.
Cir. 2001), implied that the sixth §924(c) conviction was as
problematic as the other five, Harris sought leave to
commence another collateral attack. See 28 U.S.C. §2255
¶8. The D.C. Circuit denied this request but also stated that
Harris would be entitled to relief in a proceeding under 28
U.S.C. §2241.
Harris initiated such a proceeding in the Southern
District of Illinois. The United States Attorney for that
district conceded that the sixth §924(c) conviction (on Count
21 of the indictment) is defective, and the district court
vacated it—again without benefit to Harris, whose other
nine convictions (three carrying sentences of life imprison-
ment) remain in place. Harris asked the district judge to
vacate all of his sentences, contending that they rest on
judicial findings that are incompatible with the rule
announced in Apprendi v. New Jersey, 530 U.S. 466 (2000),
and its successors. The district court declined to afford
Harris any additional relief, however, and he has appealed.
It is far from clear to us that a §2241 proceeding is
consistent with §2255 ¶5, which provides: “An application
for a writ of habeas corpus in behalf of a prisoner who is
authorized to apply for relief by motion pursuant to this
section, shall not be entertained if it appears that the
applicant has failed to apply for relief, by motion, to the
court which sentenced him, or that such court has denied
him relief, unless it also appears that the remedy by motion
is inadequate or ineffective to test the legality of his deten-
tion.” Unlike the prisoner in In re Davenport, 147 F.3d 605

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No. 04-4336 3
(7th Cir. 1998), Harris was able to use §2255 after Bailey to
present his contentions; he prevailed in 1999 with respect
to five of the six gun counts. Section 2255 is not “ineffective”
just because a court decides adversely to the petitioner.
Davenport, 147 F.3d at 609. See also Gray-Bey v. United
States, 209 F.3d 986 (7th Cir. 2000). But the United States
did not invoke §2255 ¶5 in the district court and has not
filed a cross-appeal. Paragraph 5 does not diminish the
district court’s subject-matter jurisdiction, which rests on 28
U.S.C. §1331 because the claim arises under federal law.
Sections 2241 and 2255 deal with remedies; neither one is
a jurisdictional clause. (Jurisdiction to resolve claims under
§2255, which technically are motions in the criminal
prosecution, comes from 18 U.S.C. §3231.) Harris’s claim
may have been unavailing (had the United States Attorney
resisted), but substantive shortcomings do not affect
subject-matter jurisdiction. See Bell v. Hood, 327 U.S. 678
(1946); cf. Grable & Sons Metal Products, Inc. v. Darue
Engineering & Manufacturing, 125 S. Ct. 2363, 2368-70
(2005). And because §2241 is unaffected by the
Antiterrorism and Effective Death Penalty Act of 1996, see
Felker v. Turpin, 518 U.S. 651 (1996), the special rules for
second and successive collateral attacks under §2254 and
§2255 do not change the jurisdictional footing of a proceed-
ing under §2241.
That Harris has sought relief in Illinois likewise does not
affect subject-matter jurisdiction. We held in Moore v.
Olson, 368 F.3d 757 (7th Cir. 2004), that the identity of the
custodian and the location of the litigation concern venue
and personal jurisdiction, rather than subject-matter
jurisdiction, and hence may be waived or forfeited by the
respondent. Nonetheless, as in Moore we express unhap-
piness about the insouciance of the United States Attorney
toward the location of the litigation and the identity of the
custodian. The United States Attorney has consistently filed
papers (including the brief in this court) identifying the

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4 No. 04-4336
respondent as E.A. Stepp, warden of a prison in Illinois
where Harris was at one time confined. He is not in Illinois
now, however, but is held at United States Penitentiary
Lee, in Jonesville, Virginia. How long he has been there the
papers available to us do not reveal. The United States
Attorney has violated several rules (including Fed. R. App.
P. 43(c)(2) and Circuit Rules 3(c)(1) and 43) by failing to
draw the change in custody to the court’s attention and
make the appropriate substitution. Because none of these
rules affects subject-matter jurisdiction, however, and
because Harris has not sought any relief (such as a return
to Illinois), the matter need not be pursued.
As for Harris’s arguments under Apprendi and successors:
the warden relies on Curtis v. United States, 294 F.2d 841
(7th Cir. 2002), which held that Apprendi does not apply
retroactively on collateral attack, and McReynolds v. United
States, 397 F.3d 479 (7th Cir. 2005), which reached the
same conclusion about United States v. Booker, 125 S. Ct.
738 (2005). Harris replies that in his view Apprendi and
sequels deprived the district court of “jurisdiction” to
sentence him. That’s not correct, see United States v.
Cotton, 535 U.S. 625, 629-31 (2002), and, more to the point,
the whole to-and-fro is being conducted in the wrong forum.
The only colorable support for a §2241 action in the
Southern District of Illinois was the dictum in an order
of the D.C. Circuit denying Harris’s application for per-
mission to initiate another collateral attack. The convic-
tion to which that dictum was addressed has been va-
cated. Whether Harris is entitled to any other relief is
a question for the sentencing court in the District of
Columbia—should the D.C. Circuit authorize another
collateral attack, which is unlikely given the passage of
time since Harris’s conviction and the conclusion of Dodd v.
United States, 125 S. Ct. 2478 (2005), that the year to
commence either a first or a successive collateral proceeding
under §2255 based on a change in law runs from the new

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No. 04-4336 5
decision (in this case, Apprendi) rather than from some
later opinion declaring that the novel decision is or is not
retroactive. Harris assuredly is not entitled to additional
relief from the United States District Court for the South-
ern District of Illinois.
A FFIRMED
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—9-28-05

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