Godoski, Annie v. United States ( 2002 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-1412
ANNIE GODOSKI,
Petitioner-Appellant,
v.
UNITED STATES OF AMERICA,
Respondent-Appellee.
____________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 99 CR 696—Elaine E. Bucklo, Judge.
____________
ARGUED SEPTEMBER 9, 2002—DECIDED SEPTEMBER 23, 2002
____________
Before EASTERBROOK, KANNE, and EVANS, Circuit Judges.
EASTERBROOK, Circuit Judge. Prosecuted jointly for
bank fraud, Annie Godoski and her husband William both
pleaded guilty. Each was sentenced to 366 days’ impris-
onment. With the prosecutor’s consent, the district court
deferred the start of Annie’s term until 60 days after the
end of William’s, so that one of the two always would
be available to care for the couple’s son. After William’s
release, and with her own incarceration looming, Annie
asked the district court to “commute” her term; on being
informed that only the President may commute a sen-
tence, and that district judges lack authority to reduce
terms they have imposed, see Fed. R. Crim. P. 35(a), Annie
asked the court to issue a writ of error coram nobis to an-
2 No. 02-1412
nul her conviction—because, she contends, ineffective as-
sistance of counsel led to her guilty plea. She observes
that one lawyer represented two defendants, which she in-
sists worked to her disadvantage. But cf. Mickens v. Taylor,
122 S. Ct. 1237 (2002). The district judge did not address
the merits of this contention, however, ruling instead that
coram nobis is not available to one who has yet to begin
serving a sentence—and that 28 U.S.C. §2255 likewise
is unavailable because Annie allowed more than a year
to pass after her conviction became final before filing a
collateral attack.
Annie does not dispute the district court’s conclusion
that a petition under §2255 would be untimely. Although
§2255 ¶6(4) allows one year from “the date on which the
facts supporting the claim or claims presented could have
been discovered through the exercise of due diligence”, she
does not try to take advantage of this opportunity. Her
claim is ignorance not of any material fact but of the one-
year deadline itself (and ignorance of the legal signifi-
cance of the fact that one attorney represented both Annie
and William). Ignorance of the law does not justify an ex-
tension of the one-year period to commence a collateral
attack. See Wilson v. Battles, No. 01-4336 (7th Cir. Sept. 10,
2002); Owens v. Boyd, 235 F.3d 356, 359 (7th Cir. 2000).
Nonetheless, Annie’s new lawyer contends, coram nobis
supplies a route around the time limit. The one-year peri-
od in §2255 ¶6 applies only “to a motion under this sec-
tion”—and coram nobis rests on the All Writs Act, 28 U.S.C.
§1651, rather than on §2255.
One problem with this position is that coram nobis is
used only in those rare situations when the defendant is
no longer “in custody” (rendering §2255 unavailable) yet
collateral relief remains imperative to deal with linger-
ing civil disabilities. See United States v. Bush, 888 F.2d
1145 (7th Cir. 1989); United States v. Keane, 852 F.2d 199
(7th Cir. 1988). A person whose incarceration lies in the
No. 02-1412 3
future is in custody and has full access to §2255. See
Hensley v. Municipal Court, 411 U.S. 345 (1973); Maleng
v. Cook, 490 U.S. 488, 493 (1989). The premise of coram
nobis is unsatisfied.
Counsel insists that coram nobis should be available
more broadly and may be used whenever no other relief
is available. Yet coram nobis is a common-law writ, and
it is entirely inappropriate for the judiciary to invoke the
common law to override limitations enacted by Congress,
such as the period of limitations in §2255. The Supreme
Court made exactly this point in Carlisle v. United States,
517 U.S. 416 (1996), another case in which a criminal
defendant who missed a deadline tried to use coram nobis
to obtain relief belatedly. The Justices replied:
“[t]he All Writs Act is a residual source of authority
to issue writs that are not otherwise covered by
statute. Where a statute specifically addresses the
particular issue at hand, it is that authority, and
not the All Writs Act, that is controlling.” Pennsyl-
vania Bureau of Correction v. United States Mar-
shals Service, 474 U.S. 34, 43 (1985). As we noted
a few years after enactment of the Federal Rules of
Criminal Procedure, “it is difficult to conceive of a
situation in a federal criminal case today where [a
writ of coram nobis] would be necessary or appro-
priate.” United States v. Smith, 331 U.S. [469], at
475, n. 4 [(1947)]. In the present case, Rule 29 pro-
vides the applicable law.
517 U.S. at 429. In Carlisle the deadline was set by Fed. R.
Crim. P. 29, and here it was set by §2255 ¶6. The effect
on coram nobis is identical, as we held in Owens, 235 F.3d
at 360.
Our point is not that the period of limitations in §2255
¶6 applies to claims under other federal statutes. That
would be inconsistent with Felker v. Turpin, 518 U.S. 651
4 No. 02-1412
(1996), which held that statutory scope must be respected,
and that 28 U.S.C. §2244(b), which limits successive
petitions in the district court under §2254, therefore
does not foreclose original petitions in the Supreme Court
under §2241 (though the Court said in Felker that its
exercise of discretion under §2241 would be guided by
the criteria in §2244(b)). The point, rather, is that after
Carlisle it is not possible to change the source of author-
ity to grant relief by changing the caption on a piece
of paper. To say that a claim arises under §1651 does not
make it so, any more than calling a donkey’s tail a “leg”
gives the animal five legs. No matter what its caption, a
motion is under §2255 if it falls within the description
of §2255 ¶1. That’s the implication of Carlisle and the
holding of Romandine v. United States, 206 F.3d 731 (7th
Cir. 2000), and United States v. Evans, 224 F.3d 670 (7th
Cir. 2000), which concluded that prisoners cannot avoid
restrictions added to §2255 in 1996 by the Antiterrorism
and Effective Death Penalty Act by captioning their pa-
pers under Fed. R. Crim. P. 33 rather than §2255. A post-
conviction filing that fits the description of §2255 ¶1 is a
motion under §2255, and subject to its restrictions, no
matter what the pleader says. See also, e.g., Calderon v.
Thompson, 523 U.S. 538, 553-54 (1998) (motion to recall
mandate); Dunlap v. Litscher, No. 02-1960 (7th Cir. Sept. 6,
2002) (collecting authority) (motion under Fed. R. Civ. P.
60(b)).
Paragraph 1 of §2255 reads:
A prisoner in custody under sentence of a court
established 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 with-
out jurisdiction to impose such sentence, or that
the sentence was in excess of the maximum au-
thorized by law, or is otherwise subject to collateral
No. 02-1412 5
attack, may move the court which imposed the sen-
tence to vacate, set aside or correct the sentence.
That description covers the papers Annie Godoski has filed.
She is in custody and seeks relief from a criminal sen-
tence on the ground that it was imposed in violation of
the Constitution because her lawyer rendered ineffective
assistance. So her claim arises under §2255, is untimely,
and was properly dismissed.
AFFIRMED
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-97-C-006—9-23-02