Valona v. U.S., No. 97-2681

CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)
Writing for the CourtBefore FAIRCHILD, EASTERBROOK, and DIANE P. WOOD; EASTERBROOK
Citation138 F.3d 693
PartiesJames J. VALONA, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
Decision Date02 December 1998
Docket NumberNo. 97-2681

Page 693

138 F.3d 693
James J. VALONA, Petitioner-Appellant,
v.
UNITED STATES of America, Respondent-Appellee.
No. 97-2681.
United States Court of Appeals,
Seventh Circuit.
Submitted Feb. 19, 1998.
Decided March 11, 1998.
Rehearing Denied Dec. 2, 1998.

James J. Valona, pro se.

Thomas P. Schneider, Office of the United States Attorney, Milwaukee, WI, for Respondent-Appellee.

Before FAIRCHILD, EASTERBROOK, and DIANE P. WOOD, Circuit Judges.

EASTERBROOK, Circuit Judge.

More than a decade ago James Valona was convicted of a drug offense. United States v. Valona, 834 F.2d 1334 (7th Cir.1987). He was paroled in 1992. A request for collateral relief under 28 U.S.C. § 2255 was unsuccessful. Valona v. United States, 919 F.Supp. 1260 (E.D.Wis.1996), motion for certificate of probable cause denied by unpublished order, No. 96-2165 (7th Cir. Oct. 1, 1996). Valona did not give up. He has twice sought (and twice been denied) our permission to file additional petitions under § 2255. See 28

Page 694

U.S.C. §§ 2244(a)(3), 2255 p 8. And he filed in the district court a petition for a writ of habeas corpus under 28 U.S.C. § 2241, asking the court to order the termination of his parole.

The district court dismissed Valona's petition, stating that any new request for collateral review requires this court's approval under §§ 2244 and 2255. This is something of an overstatement. Not all multiple collateral attacks are "second or successive". See O'Connor v. United States, 133 F.3d 548 (7th Cir.1998); Walker v. Roth, 133 F.3d 454 (7th Cir.1997); Benton v. Washington, 106 F.3d 162 (7th Cir.1996). If, for example, a prisoner's initial petition is returned as procedurally deficient, the replacement may proceed without advance appellate leave. Having equated petitions under § 2241 with those under § 2255, the district court should have examined the disposition of Valona's earlier petitions to determine whether the latest is a "second or successive" application under our precedents. But we need not conduct this inquiry ourselves, however, because there is a deeper problem in the district court's handling of the application: the prior-approval requirement does not apply to petitions under § 2241 in the first place.

Section 2255 p 8 begins: "A second or successive motion must be certified as provided in section 2244 by a panel of the appropriate court of appeals ...". The "motion" to which this language refers must be the kind of motion described by § 2255 p 1--one "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". A motion seeking relief on grounds concerning the execution but not the validity of the conviction and sentence--for example, a motion contending that the prison unlawfully deprived a prisoner of good time credits, or that parole officials...

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503 practice notes
  • Alaimalo v. U.S., No. 08-56349
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 28 Febrero 2011
    ...§ 2244(a) bars successive petitions under § 2241 directed to the same issue concerning execution of a sentence)." Valona v. United States, 138 F.3d 693, 695 (7th Cir. 1998) (Easter-brook, J.). Significantly, in Barapind v. Reno, 225 F.3d 1100 (9th Cir. 2000), we applied the Seventh Circuit'......
  • Mitchell v. Warden, FCI-Greenville, Case No. 19-cv-0539-RJD
    • United States
    • United States District Courts. 7th Circuit. Southern District of Illinois
    • 8 Noviembre 2019
    ...in conviction or sentencing, but are instead limited to challenges regarding the execution of a sentence. See Valona v. United States, 138 F.3d 693, 694 (7th Cir. 1998). Aside from the direct appeal process, a prisoner who has been convicted in federal court is generally limited to challeng......
  • U.S. v. Barrett, No. 96-2355
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • 2 Febrero 1999
    ...or § 1651, the COA and pre-clearance requirements are not directly applicable. See Davenport, 147 F.3d at 607; Valona v. United States, 138 F.3d 693, 694 (7th Cir.1998); Triestman v. United States, 124 F.3d 361, 373 n. 17 (2d Cir.1997); McIntosh v. United States Parole Comm'n, 115 F.3d 809,......
  • Alaimalo v. U.S., No. 08–56349.
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • 20 Junio 2011
    ...§ 2244(a) bars successive petitions under § 2241 directed to the same issue concerning execution of a sentence).” Valona v. United States, 138 F.3d 693, 695 (7th Cir.1998) (Easterbrook, J.). Significantly, in Barapind v. Reno, 225 F.3d 1100 (9th Cir.2000), we applied the Seventh Circuit's a......
  • Request a trial to view additional results
503 cases
  • Alaimalo v. U.S., No. 08-56349
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 28 Febrero 2011
    ...§ 2244(a) bars successive petitions under § 2241 directed to the same issue concerning execution of a sentence)." Valona v. United States, 138 F.3d 693, 695 (7th Cir. 1998) (Easter-brook, J.). Significantly, in Barapind v. Reno, 225 F.3d 1100 (9th Cir. 2000), we applied the Seventh Circuit'......
  • Mitchell v. Warden, FCI-Greenville, Case No. 19-cv-0539-RJD
    • United States
    • United States District Courts. 7th Circuit. Southern District of Illinois
    • 8 Noviembre 2019
    ...in conviction or sentencing, but are instead limited to challenges regarding the execution of a sentence. See Valona v. United States, 138 F.3d 693, 694 (7th Cir. 1998). Aside from the direct appeal process, a prisoner who has been convicted in federal court is generally limited to challeng......
  • U.S. v. Barrett, No. 96-2355
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • 2 Febrero 1999
    ...or § 1651, the COA and pre-clearance requirements are not directly applicable. See Davenport, 147 F.3d at 607; Valona v. United States, 138 F.3d 693, 694 (7th Cir.1998); Triestman v. United States, 124 F.3d 361, 373 n. 17 (2d Cir.1997); McIntosh v. United States Parole Comm'n, 115 F.3d 809,......
  • Alaimalo v. U.S., No. 08–56349.
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • 20 Junio 2011
    ...§ 2244(a) bars successive petitions under § 2241 directed to the same issue concerning execution of a sentence).” Valona v. United States, 138 F.3d 693, 695 (7th Cir.1998) (Easterbrook, J.). Significantly, in Barapind v. Reno, 225 F.3d 1100 (9th Cir.2000), we applied the Seventh Circuit's a......
  • Request a trial to view additional results

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