381 F. App'x 602

7th Cir.

2010

Roland C. SPERBERG, Petitioner-Appellant, v. Helen J. MARBERRY, Respondent-Appellee.

No. 09-2750.

United States Court of Appeals, Seventh Circuit.

Submitted June 17, 2010.* Decided June 23, 2010.

602

Roland C. Sperberg, Terre Haute, IN, pro se.

Gerald A. Coraz, Attorney, Office of the United States Attorney, Indianapolis, IN, for Respondent-Appellee.

Before FRANK H. EASTERBROOK, Chief Judge, JOHN L. COFFEY, Circuit Judge and ANN CLAIRE WILLIAMS, Circuit Judge.

Order

The judgment of the district court dismissing Sperberg‘s petition under 28 U.S.C. § 2241 for want of jurisdiction is incompatible with Collins v. Holinka, 510 F.3d 666 (7th Cir.2007), which holds that a prisoner‘s use of the one collateral attack allowed under 28 U.S.C. § 2255(h) does not deprive a district court of subject-matter jurisdiction to entertain a later petition under § 2241. Whether the proceeding is allowable under § 2255(e) is a question on the merits; it does not affect subject-matter jurisdiction. Compare In re Davenport, 147 F.3d 605 (7th Cir.1998), with Taylor v. Gilkey, 314 F.3d 832 (7th Cir.2002).

On remand, the district court should reconsider its decision in light of Estrada v. Holder, 604 F.3d 402 (7th Cir.2010), and the position asserted in the brief for the respondent warden filed in this court on May 24, 2010. We leave to the discretion of the district court whether it is appropriate to appoint a lawyer to serve as amicus curiae in support of the position that this situation is covered by Taylor rather than Davenport.

UNITED STATES of America, Plaintiff-Appellee, v. Calvin L. NASH, Defendant-Appellant.

No. 09-3248.

United States Court of Appeals, Seventh Circuit.

Submitted June 23, 2010. Decided June 24, 2010.

603

Michelle L. Jacobs, Attorney, Office of the United States Attorney, Milwaukee, WI, for Plaintiff-Appellee.

Richard H. Parsons, Attorney, Office of the Federal Public Defender, Peoria, IL, for Defendant-Appellant.

Before JOHN L. COFFEY, Circuit Judge, JOEL M. FLAUM, Circuit Judge and DANIEL A. MANION, Circuit Judge.

ORDER

Calvin Nash was one of 30 defendants charged by indictment with conspiracy to distribute cocaine and marijuana. See 21 U.S.C. §§ 846, 841(a). As part of a plea agreement, Nash pleaded guilty to a superceding information charging him with using his phone to facilitate the commission of a drug crime. See id. § 843(b). He was sentenced to a below-guidelines term of 30 months’ imprisonment. Nash filed a timely notice of appeal, but his appointed lawyer represents that Nash no longer wishes to pursue the appeal yet refuses to consent to a voluntary dismissal. Counsel therefore has filed a motion under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), asserting that the appeal is frivolous and seeking permission to withdraw. Nash has not responded to counsel‘s motion. See CIR. R. 51(b). Because Nash does not want his guilty plea set aside, counsel correctly forgoes discussion of possible challenges to the voluntariness of the plea or the adequacy of the plea colloquy. See United States v. Knox, 287 F.3d 667, 670-71 (7th Cir.2002). But counsel does address whether Nash could still challenge his sentence, and we limit our review to this question because we find counsel‘s brief to

Notes

This successive appeal has been submitted to the original panel under Operating Procedure 6(b). After examining the briefs and the record, we have concluded that oral argument is unnecessary. See Fed. R.App. P. 34(a); Cir. R. 34(f).