Davenport, In re, s. 97-9095

• Decision Date: 18 June 1998
• Docket Number: 97-9097,Nos. 97-9095,s. 97-9095
• Citation: 147 F.3d 605
• Parties: In re James DAVENPORT and Sherman Nichols, Petitioners.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 605

147 F.3d 605

In re James DAVENPORT and Sherman Nichols, Petitioners.

Nos. 97-9095, 97-9097.

United States Court of Appeals, Seventh Circuit.

Argued April 24, 1998.

Decided June 18, 1998.

James Davenport, United States Penitentiary, Terre Haute, IN, pro se.

Sherman Nichols, Federal Correctional Institution, Pekin, IL, pro se.

Haywood E. McDuffie, Office of the United States Attorney, Criminal Appellate Division, Chicago, IL, Richard N. Cox, Office of the United States Attorney, Urbana, IL, Stephen A. Kubiatowski (argued), Office of the United States Attorney, Springfield, IL, for Respondent in No. 97-9095.

Jerold S. Solovy, Megan B. Poetzel (argued), Jenner & Block, Chicago, IL, for Amicus Curiae.

Haywood E. McDuffie, Office of the United States Attorney, Criminal Appellate Division, Chicago, IL, Stephen A. Kubiatowski (argued), Office of the United States Attorney, Springfield, IL, for Respondent in No. 97-9097.

Before POSNER, Chief Judge, and ROVNER and DIANE P. WOOD, Circuit Judges.

POSNER, Chief Judge.

We consolidated and directed briefing and argument of petitions by two federal prisoners for leave to seek postconviction relief that the district courts thought barred by the Antiterrorism and Effective Death Penalty Act of 1996. The principal question we must decide is when if ever a federal prisoner can use the habeas corpus statute, 28 U.S.C. §§ 2241-2254, to get around the bar that the Antiterrorism Act places athwart successive motions under 28 U.S.C. § 2255, the federal prisoner's habeas corpus substitute.

Davenport was convicted in 1991 of the federal crime of being a felon in possession of a firearm. The sentence was enhanced under the "armed career criminal" statute, 18 U.S.C. § 924(e), in part on the basis of a 1981 conviction for burglary. After we affirmed the 1991 judgment in United States v. Davenport, 986 F.2d 1047 (7th Cir.1993), he filed a motion under 28 U.S.C. § 2255 to vacate the sentence on the ground that the enhancement violated the double jeopardy clause. The motion was denied and he did not appeal, but last year he sought habeas corpus, claiming among other things that the 1981 burglary conviction was not within the scope of the armed career criminal act. The district judge deemed the motion one filed under section 2255 and so rejected it because Davenport had not asked our leave to file a successive 2255 motion, as required by section 2244(b)(3), which the last paragraph of section 2255 makes applicable to section 2255 motions.

Nichols was convicted in 1990 of (among other things) the use of a firearm in the commission of a drug offense. 18 U.S.C. § 924(c). We affirmed, United States v. Nichols, 937 F.2d 1257 (7th Cir.1991), and later affirmed as well the denial of his 2255 motion complaining of ineffective assistance of counsel. Nichols v. United States, 28 F.3d 1216, 1994 WL 328296 (7th Cir.1994) (mem.). Then the Supreme Court decided Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995), holding that "use" in section 924(c) does not include mere possession, as had been the law of this circuit when Nichols was convicted. Nichols filed another motion for postconviction relief the following year, styling it an application for a writ of coram nobis under 28 U.S.C. § 1651 (the "All Writs Act"). The district court rejected the motion as an attempt to file a successive 2255 motion without the permission of the court of appeals.

The form in which these cases come to us is a little puzzling. Although they are styled as petitions for leave to file successive 2255 motions (actually Davenport's petition is styled as one under 2244(b) for leave to file an application for habeas corpus, but 2244(b) is applicable only to state prisoners), neither petitioner had attempted to file such a motion in the district court, no doubt fearing that it would be clearly barred by the Antiterrorism Act. For the Act amended section 2255 to allow successive 2255 motions to be filed only if the prisoner tenders either newly discovered evidence that shows he's not guilty or a new rule of constitutional law made retroactive by the Supreme Court, and our two prisoners present neither ground for relief. They sought relief under different provisions from 2255--under 28 U.S.C. § 2241 in Davenport's case and 28 U.S.C. § 1651 in Nichols's case--and the district court in effect denied them relief under those provisions. The way to challenge adverse final action by the district court is to appeal.

It is true that Davenport and Nichols argue that they are also entitled to file a successive 2255 motion; they claim that the amendment to 2255 limiting the grounds for filing successive motions do not apply to them because they filed their first 2255 motions before the Act was passed. But if this is right (it isn't, as we're about to see), it is unclear why they are asking our leave to file a successive motion. The requirement of seeking leave was also added by the Antiterrorism Act, so if the Act is inapplicable, leave need not be sought. Once again their real beef is that the district court should have allowed their pleadings to be filed, whether the pleading was labeled a 2255 motion, an application for habeas corpus, or anything else.

But because the petitions they filed in this court contain all the information that Fed. R.App. P. 3(c) requires of a notice of appeal, and were filed within the time allowed for appealing, the mislabeling of the appeals as petitions is harmless. So we shall treat them as notices of appeal and from here on refer to Davenport and Nichols as appellants rather than petitioners. This means, incidentally, that the prohibition in 28 U.S.C. § 2244(b)(3)(E) against the filing of a petition for rehearing or certiorari to challenge the grant or denial by the court of appeals of a second or successive application for habeas corpus is inapplicable, since we are treating the pleadings in this court as appeals from the denial by the district courts of applications for habeas corpus, rather than as applications to us for leave to file successive section 2255 motions.

We can set quickly to one side the All Writs Act and the esoteric writs (not only coram nobis, but also audita querela) that Nichols seeks under it. He claims that he is imprisoned for having committed a nonexistent crime, the mere possession of a firearm in connection with a drug offense. The relief sought (his freedom), and the ground on which it is sought (that the crime for which he is being punished does not exist), are standardly sought either by applying for habeas corpus or, in the case of a federal prisoner, by moving for relief under section 2255. If, the section 2255 route being barred to Nichols by the Antiterrorism Act, section 2241 remains open to him, he can get all the relief he wants under that section. If it is closed to him--if Congress has forbidden federal prisoners to proceed under 2241 even when 2255 is closed to them--then it would be senseless to suppose that Congress permitted them to pass through the closed door simply by changing the number 2241 to 1651 on their motions. We shall therefore treat Nichols's motion for postconviction relief in the district court as an application for habeas corpus filed under section 2241.

We can deal swiftly with the appellants' argument that the restrictions in the Antiterrorism Act on successive motions under 2255 apply only to motions that are successive to earlier motions filed after the Act took effect. We have held that the Act applies to all motions filed after its effective date, e.g., Alexander v. United States, 121 F.3d 312, 314-15 (7th Cir.1997), and cases cited there, unless the movant had reasonably relied on the previous law in holding back a ground presented in the successive motion. Burris v. Parke, 95 F.3d 465 (7th Cir.1996) (en banc). The exception is not applicable here. We recognize that the Sixth Circuit has held that the Act does not apply when the first motion was filed before the Act took effect, In re Hanserd, 123 F.3d 922, 930-33 (6th Cir.1997), but the contrary view of this circuit, which is also the view of the majority of the other circuits, see, e.g., Pratt v. United States, 129 F.3d 54, 58-60 (1st Cir.1997), is by now well established. The Supreme Court will have to resolve the conflict.

With the amended section 2255 thus applicable to this case, the appellants confront the bar in that section (a holdover from the pre-amended statute) against a prisoner's seeking habeas corpus if he is authorized to apply for relief under 2255, that is, if he is a federal prisoner. The appellants invoke the exception for cases in which the remedy under that section "is inadequate or ineffective to test the legality of his detention." If it is, the prisoner can seek habeas corpus under 2241. Congress did not change this language when in the Antiterrorism Act it imposed limitations on the filing of successive 2255 motions. The retention of the old language opens the way to the argument that when the new limitations prevent the prisoner from obtaining relief under 2255, his remedy under that section is inadequate and he may turn to 2241. That can't be right; it would nullify the limitations. Yet to hold that a federal prisoner may never use 2241 would read out of 2255 the express permission to do so if the remedy created by 2255 is inadequate or ineffective to test the legality of the prisoner's detention--unless it is never inadequate or ineffective, and so let us consider that possibility.

Before 2255 was enacted in 1948, federal prisoners, like state prisoners, who wanted to mount a collateral attack on their convictions or sentences had to file a petition for habeas corpus in the district court for the district in which they were imprisoned. Federal prisons were concentrated in a few districts, and the district judges in these districts were flooded with petitions. The purpose behind the enactment of section 2255...