ANGEL L. MORALES, Petitioner-Appellant, v. MARK A. BEZY, Respondent-Appellee.
No. 06-1490
United States Court of Appeals For the Seventh Circuit
ARGUED MAY 24, 2007—DECIDED AUGUST 24, 2007
Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 1:05-cv-1735-LJM—Larry J. McKinney, Chief Judge.
POSNER, Circuit Judge. This appeal presents issues concerning postconviction relief. The petitioner was convicted in the federal district court for the Northern District of Indiana in 1998 on his plea of guilty to having participated in a conspiracy to launder money in an illegal gambling business.
The remedy created by section 2255 is a substitute for habeas corpus for federal prisoners; section 2241 backs it up. Congress may have been anxious that without such a backstop section 2255 might be thought an illicit attempt to suspend habeas corpus, In re Davenport, 147 F.3d 605, 609 (7th Cir. 1998), though if this was its motive its anxiety was misplaced. Habeas corpus as a postconviction remedy is not the type of habeas corpus to which
Habeas corpus as a procedure for postconviction relief is a different animal from habeas corpus as a remedy against executive or military detention, merely sharing a name with it. In Felker v. Turpin, 518 U.S. 651, 663-64 (1996), it is true, the Supreme Court assumed that the suspension clause is applicable to habeas corpus as a postconviction remedy (see also Swain v. Pressley, 430 U.S. 372, 381 (1977); In re Dorsainvil, 119 F.3d 245, 248 (3d Cir. 1997); Triestman v. United States, 124 F.3d 361, 370, 378 (2d Cir. 1997)), but it did not decide the question and we are confident that should it ever do so it will reject the application of the suspension clause. Otherwise Congress would have the power to entrench a habeas corpus statute against repeal; an expansion of habeas corpus could be rescinded only by amending the suspension clause, just as if the expansion had been by constitutional amendment. Since Congress cannot amend the Constitution, the ratchet would be not merely irrational but unconstitutional; it would bypass the procedure specified in
The petitioner argues that to require a petitioner in a dual 2241/2255 case to appeal separately from the denial of each of the two petitions (technically, one petition and one motion) raises the hideous spectre of “piecemeal appeals.” That is a frivolous argument in a case such as this in which the two petitions should have been filed in separate districts and thus ruled on separately and (if denied) given rise to separate appeals. The only reason they were conjoined was that the petitioner didn‘t realize that he couldn‘t file a habeas corpus petition in the district in which he had been sentenced because he was not confined there. His mistake does not entitle him to appeal from the dismissal more than 60 days later,
Lest we raise false hopes, we point out that although the district court in the northern district did not enter a Rule 58 judgment order dismissing the section 2255 motion, the petitioner cannot now appeal the dismissal by filing a notice of appeal in that district court and then invoking the rule that if no Rule 58 judgment order has been entered the party can postpone appealing from a final judgment until it is entered.
All this is on the assumption that the dismissal of the petitioner‘s section 2255 motion was final despite the absence of a Rule 58 judgment order. It was. Nothing in the section 2255 proceeding remained for decision by the district court; the court was through with it, which is the meaning of finality for purposes of determining appealability. Chase Manhattan Mortgage Corp. v. Moore, 446 F.3d 725, 726 (7th Cir. 2006); Moreau v. Harris County, 158 F.3d 241, 244 (5th Cir. 1998). The fact that a separate action—the petition for habeas corpus under section 2241—was transferred rather than terminated is irrelevant. It is irrelevant not only because the two actions should never have been joined, but also because relinquishing jurisdiction over a part of a case to another court (or to an agency) does not affect the finality of the dismissal of the
So the petitioner cannot challenge the denial of his section 2255 motion in this court. We therefore cannot reach the merits of his claim that the district court should have excused, under the doctrine of equitable tolling, his failure to have filed his section 2255 motion until 38 months after the deadline for filing it. Gildon v. Bowen, 384 F.3d 883, 886-87 (7th Cir. 2004); Green v. United States, 260 F.3d 78, 82 (2d Cir. 2001).
All this would be of no moment if the petitioner‘s section 2241 action (habeas corpus) had merit, but it does not. He cannot show that his section 2255 remedy was inadequate or ineffective. A prisoner cannot be permitted to lever his way into section 2241 by making his section 2255 remedy inadequate, here by failing to appeal from the denial of his section 2255 motion. Taylor v. Gilkey, supra, 314 F.3d at 835-36; Cradle v. United States ex rel. Miner, 290 F.3d 536, 538-39 (3d Cir. 2002) (per curiam); United States v. Lurie, 207 F.3d 1075, 1077-78 (8th Cir. 2000); see also Garza v. Lappin, 253 F.3d 918, 920-21 (7th Cir. 2001); Charles v. Chandler, 180 F.3d 753, 757-58 (6th Cir. 1999) (per curiam). What is true but irrelevant is that the ground on which the petitioner wanted to challenge his conviction—that he was convicted under
The petitioner argues finally that Scialabba and Santos establish that he is actually innocent of the crime of which he was convicted, as distinct from his having been the victim merely of a procedural irregularity that would justify at most a new trial, Davis v. United States, 417 U.S. 333, 346-47 (1974); Cooper v. United States, 199 F.3d 898, 901 (7th Cir. 1999); Triestman v. United States, supra, 124 F.3d at 378-80, and that a person who is actually innocent should be allowed to file a section 2241 petition at any time, subject to the limitations in section 2244. But the petitioner‘s claim of innocence is premature. There is an intercircuit split, see United States v. Grasso, 381 F.3d 160, 166-68 (3d Cir. 2004); United States v. Iacaboni, 363 F.3d 1, 4 (1st Cir. 2004), to be resolved next year by the Supreme Court, see United States v. Santos, No. 06-1005, 127 S. Ct. 2098 (Apr. 23, 2007) (granting certiorari), over the issue that was decided in Scialabba and Santos in favor of the petitioner‘s position. The question of his innocence is thus in limbo. This is not to say that a determination of actual innocence can never be made until the Supreme Court has resolved the issue underlying the claim of actual innocence, for of course the Court leaves many issues to simmer at the circuit level indefinitely. But given that the issue underlying the petitioner‘s claim of actual innocence is before the Court, it would be paradoxical to deem him innocent by virtue of our decisions though within a year it may turn out that he is guilty by virtue of the Court‘s rejecting those decisions. In re Davenport, supra, 147 F.3d at 612. If the Court affirms Santos or somehow fails to resolve the issue, leaving our decisions intact, our petitioner can file a new section 2241 petition.
AFFIRMED.
ROVNER, Circuit Judge, dissenting. The court today resolves that a man who under our circuit law is innocent of the federal crime for which he has been imprisoned, should remain in prison on the chance that the Supreme Court will disagree with our understanding of the law and deem his conduct a crime. It is the antithesis of our justice system to hold that an innocent man should be imprisoned for fear that a guilty man will go free. Schlup v. Delo, 513 U.S. 298, 325 (1995) (“Indeed, concern about the injustice that results from the conviction of an innocent person has long been at the core of our criminal justice system. That concern is reflected . . . in the ‘fundamental value determination of our society that it is far worse to convict an innocent man than to let a guilty man go free.’ “). Yet that is what the court has chosen today, and I respectfully dissent.
The majority declares that the question of Morales’ innocence is in limbo because there is an intercircuit split, which the Supreme Court may resolve next year in a case in which it has granted certiorari. But the definition of actual innocence cannot hinge on the status of certiorari petitions in the Supreme Court, and an intercircuit split should not preclude an actual innocence claim on the possibility that the Supreme Court in the future may hear the issue and decide differently. Until the Supreme Court tells us otherwise, our cases should control, and under our caselaw, he has a meritorious claim of actual innocence. In addition to revealing an unsettling level of insecurity about the soundness of our own decisions, the majority‘s reliance on the certiorari status of other cases poses all kinds of problems, including the real possibility that the Supreme Court will subsequently decide that certiorari was improvidently granted, or will otherwise fail to reach the merits when the claim is heard. Moreover, it is inconceivable that we would pursue the same path in a case with a circuit split but no similar case pending before the Supreme Court. In that case, the defendant faces the same circuit split, and there is still the possibility that within a year or less the Supreme Court would reject our cases. Yet, that defendant would be set free, and this one is not. The law should not tolerate such arbitrariness. That, of course, assumes that the majority would not require that defendant to wait as well. It appears that whether a defendant may proceed with his claim of actual innocence or not depends on whether we think the Supreme Court will rule on a case in the future, perhaps only the near future. In any case, it allows a defendant with a claim of actual innocence to languish in prison indefinitely awaiting a Supreme Court action that might never occur.
Recognizing that under our law, Morales has a valid claim of actual innocence may be only one of the steps. Many courts, including our own—although the courts have not always been consistent—have held that a § 2241 is available only when there is both a valid claim of actual innocence and the petitioner has not had an unobstructed opportunity to present the claim prior to this time. Compare Taylor v. Gilkey, 314 F.3d 832, 835 (7th Cir. 2002) (holding that “§ 2255 is ‘inadequate or ineffective’ only when a structural problem in § 2255 forecloses even one round of effective review—and then only when the claim being foreclosed is one of actual innocence.“); Ivy v. Pontesso, 328 F.3d 1057, 1060 (9th Cir. 2003) (“it is not enough that the petitioner is presently barred from raising his claim of innocence by motion under § 2255. He must never have had the opportunity to raise it by motion.“); with Cooper v. United States, 199 F.3d 898, 901 (7th Cir. 1999) (noting that a conviction of a non-existent crime is “in anyone‘s book . . . a clear miscarriage of justice,” and that “a valid claim of actual innocence would be enforceable under § 2241 without regard to time limits under § 2255 if relief under that section was not, for some reason, available.“); see also Bousley v. United States, 523 U.S. 614, 623, 630 (1998) (procedurally defaulted claim could nevertheless be raised if petitioner could establish that the constitutional error probably resulted in the conviction of one who is actually innocent). The majority conveys the impression that if the Supreme Court upholds Scialabba, Morales can proceed with a new petition, but the majority fails to explain why the reasoning in this opinion in rejecting the § 2241 petition would not equally doom the later petition in establishing that he had an unobstructed opportunity to present the claim prior to this.
Although the majority does not explain that, I agree that a § 2241 petition is available because he did not have an unobstructed opportunity to present the claim prior to this time. Scialabba was decided after the one-year time period expired for the filing of his § 2255 petition, and for purposes of an actual innocence claim, that should be enough. Stephens, Jr. v. Al Herrera, 464 F.3d 895, 898 (9th Cir. 2006). We should not foreclose review of a claim of actual innocence solely because a defendant did not anticipate any novel argument that could possibly be made. See, e.g., Bousley, 523 U.S. at 622 (recognizing that a claim may be so novel that its legal basis is not reasonably available to counsel). That would encourage the kind of scattershot approach to litigation that vexes the courts already. It would also mean that the creativity of a defendant‘s attorney, if he even has one, or the sheer luck of timing would be the definitive factor in who remains in prison for a non-existent crime and who gets out. This case illustrates it precisely, as his co-defendants had pending § 2255 petitions at
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Clerk of the United States Court of Appeals for the Seventh Circuit
USCA-02-C-0072—8-24-07