Timothy Melton v. United States of America

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-3903
T IMOTHY M ELTON ,
Petitioner-Appellant,
v.
U NITED S TATES OF A MERICA ,
Respondent-Appellee.
____________
Appeal from the United States District Court for the
Northern District of Illinois, Western Division.
No. 95 CR 50024-3—Philip G. Reinhard, Judge.
____________
S UBMITTED J ANUARY 23, 2004—D ECIDED F EBRUARY 13, 2004
____________
Before B AUER , E ASTERBROOK , and K ANNE , Circuit Judges.
E ASTERBROOK , Circuit Judge. Timothy Melton pleaded
guilty in 1995 to drug offenses and, in exchange for coop-
eration, received a sentence of 216 months’ imprisonment,
or 90% of the statutory minimum that would have applied
in the absence of a favorable recommendation by the pros-
ecutor. More than a year later (and more than a year after
the Antiterrorism and Effective Death Penalty Act of 1996
took effect), Melton filed a collateral attack under 28 U.S.C.
§2255, contending that he would have received a lower
sentence had his lawyer done a better job. The court
recruited an attorney to assist Melton. Six months later,
after his original counsel had filed an affidavit that demol-

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2 No. 03-3903
ished his contentions, Melton dismissed this proceeding.
In 2003 Melton again sought relief—and, doubtless rec-
ognizing that §2255 was no longer available given not only
the time limit of §2255 ¶6 but also the earlier unsuccessful
collateral attack, see 28 U.S.C. §§ 2244, 2255 ¶8, Melton
styled this request as a petition for a writ of audita querela.
Just as in 1997, Melton contended that his sentence had
been spoiled by ineffective assistance of counsel.
The ancient writ of audita querela, long ago abolished in
federal civil proceedings, see Fed. R. Civ. P. 60(b), has no
apparent relevance to criminal sentences. Black’s Law
Dictionary 126 (7th ed. 1999), describes it as a “writ avail-
able to a judgment debtor who seeks a rehearing of a matter
on grounds of newly discovered evidence or newly existing
legal defenses.” Melton is not a judgment debtor, and the
territory of new facts and law is occupied for civil matters
by Rule 60(b) and for criminal matters by Fed. R. Crim. P.
33 plus §2255. See United States v. Kimberlin, 675 F.2d
866, 869 (7th Cir. 1982). The district judge viewed Melton’s
invocation of audita querela as reflecting confusion about
the appropriate remedy to use and denied his application on
that ground, inviting him to try again under §2255.
Things are not so simple, however, given the AEDPA . The
prosecutor had asked the district judge not to deny the ap-
plication but to dismiss it for want of jurisdiction. Melton
can’t try again tomorrow under §2255 and couldn’t have
employed §2255 at the time he filed this petition in the
district court; his application in 1997 used up the only col-
lateral attack allowed as of right, see Altman v. Benik, 337
F.3d 764 (7th Cir. 2003), and the district court thus lacks
jurisdiction to entertain any further collateral proceedings
unless this court first grants permission under §2244 and
§2255 ¶8. See Nuñez v. United States, 96 F.3d 990 (7th Cir.
1996). The prosecutor brought this problem to the attention
of the district judge, who did not mention the subject in the
brief order denying Melton’s petition.

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No. 03-3903 3
Prisoners cannot avoid the AEDPA ’s rules by inven-
tive captioning. See, e.g., Owens v. Boyd, 235 F.3d 356
(7th Cir. 2000) (application for coram nobis); United States
v. Evans, 224 F.3d 670 (7th Cir. 2000) (use of Rule 33 based
on matters other than newly discovered evidence of inno-
cence). Any motion filed in the district court that imposed
the sentence, and substantively within the scope of §2255
¶1, is a motion under §2255, no matter what title the
prisoner plasters on the cover. See, e.g., Ramunno v. United
States, 264 F.3d 723 (7th Cir. 2001). Call it a motion for a
new trial, arrest of judgment, mandamus, prohibition,
coram nobis, coram vobis, audita querela, certiorari, capias,
habeas corpus, ejectment, quare impedit, bill of review, writ
of error, or an application for a Get-Out-of-Jail Card; the
name makes no difference. It is substance that controls. See
Thurman v. Gramley, 97 F.3d 185, 186-87 (7th Cir. 1996).
Paragraph 1 of §2255 reads:
A prisoner in custody under sentence of a court es-
tablished by Act of Congress claiming the right to
be released 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 sentence, or that the
sentence was in excess of the maximum authorized
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.
Melton’s application fits comfortably within that coverage.
It therefore was a motion under §2255, notwithstanding
its caption, and the district court was obliged to dismiss it
for want of jurisdiction because Melton had not received
this court’s permission to commence a second or successive
collateral attack. Moreover, because §2255 governs, Melton
needed a certificate of appealability in order to obtain ap-
pellate review, see 28 U.S.C. §2253(c), and he has neither

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4 No. 03-3903
requested nor received one. (The district court also ne-
glected to make the initial determination that Fed. R.
App. P. 22(b)(1) calls for in all matters within the scope of
§2255, even if the prisoner fails to request a certificate.)
Recharacterizing a prisoner’s initial post-judgment mo-
tion as a collateral attack subject to §2255 has a potential
to surprise a legal novice who may think that the motion
does not jeopardize the right to one complete round of col-
lateral review. Accordingly, the Supreme Court held in
Castro v. United States, 124 S. Ct. 786 (2003), that unless
the district judge has warned the prisoner that a motion
will be treated as a collateral attack, and offered the op-
portunity to withdraw it (or add any other issues that would
be included with a motion under §2255), the motion does
not count as the one collateral attack allowed to each
prisoner. See also, e.g., Henderson v. United States, 264
F.3d 709 (7th Cir. 2001). Recharacterizing a prisoner’s
successive collateral motions in the sentencing court as
within the scope of §2255 does not pose any similar risk; the
initial round of collateral review has been enjoyed (or, here,
forfeited in the face of defeat), and the only question is
whether the court will permit the prisoner to use nomencla-
ture to defeat the rules established by Congress. To that the
answer must be no. (The proviso “in the sentencing court”
is important. Section 2255 concerns only motions in that
forum. A collateral attack in the court with jurisdiction over
the prisoner’s custodian falls under 28 U.S.C. §2241 and is
unaffected by the AEDPA , see Felker v. Turpin, 518 U.S. 651
(1996); Valona v. United States, 138 F.3d 693 (7th Cir.
1998), though it must be dismissed unless §2255, even if
diligently employed, would not have been adequate to test
the legality of the conviction and sentence. See 28 U.S.C.
§2255 ¶5; Taylor v. Gilkey, 314 F.3d 832 (7th Cir. 2002).)
We have held that a prisoner who seeks damages should
not have the papers treated as a request for collateral
review, and that a prisoner who wants to shorten his time

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No. 03-3903 5
in custody should not have the papers converted into a civil
suit under Bivens or 42 U.S.C. §1983. See, e.g., Copus v.
Edgerton, 96 F.3d 1038 (7th Cir. 1996); Moore v. Pemberton,
110 F.3d 22 (7th Cir. 1997). Litigation seeking damages is
governed by rules—not only filing fees and the Prison
Litigation Reform Act but also the doctrine of Heck v.
Humphrey, 512 U.S. 477 (1994)—that differ from those for
collateral attacks. Prisoners are entitled to choose between
requests for financial relief and requests for release,
following the procedures (and taking the consequences) of
each. Melton did not launch what was even arguably a
quest for damages, however; his demand, filed in the
criminal case under the original docket number, was that
the judge either set aside his conviction or reduce his
sentence. That is squarely within §2255 ¶1.
We have treated the papers that Melton has filed in this
court as an implicit request for permission to commence
another collateral attack. It would be inappropriate to grant
such permission, however, because Melton’s contention that
he received ineffective assistance of counsel in 1995 does
not meet any of the statutory criteria for second or succes-
sive collateral attacks.
The judgment of the district court is vacated, and the case
is remanded with instructions to dismiss for want of
jurisdiction.

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6 No. 03-3903
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—2-13-04

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