United States v. Carraway, John ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-3226
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JOHN L. CARRAWAY,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Southern District of Illinois.
No. 93-CR-30025-27-WDS—William D. Stiehl, Judge.
____________
SUBMITTED JANUARY 22, 2007Œ—DECIDED MARCH 8, 2007
____________
Before COFFEY, KANNE, and ROVNER, Circuit Judges.
ROVNER, Circuit Judge. Defendant-Appellant John L.
Carraway appeals pro se from the district court’s decision
Œ
Pursuant to Seventh Circuit Internal Operating Procedure
6(b), this appeal was submitted to the panel of judges that
disposed of Carraway’s direct appeal of his conviction and
sentence. See United States v. Carraway, 108 F.3d 745 (7th Cir.
1997) (per curiam). Neither party has included in its brief a
statement indicating that oral argument is necessary, see Fed. R.
App. P. 34(a)(1) and Circuit Rule 34(f ), and upon review of the
briefs and the record and consideration of the standards set forth
in Fed. R. App. P. 34(a)(2), the panel has determined that oral
argument is unnecessary to the resolution of this appeal. The
appeal was therefore submitted on the briefs and the record.
2 No. 06-3226
to dismiss, for want of jurisdiction, his post-judgment
motion seeking relief from his conviction and sentence and
the denial of his request for reconsideration. We conclude
that the district court correctly treated Carraway’s motion
as a second or successive request for relief pursuant to 28
U.S.C. § 2255 and, because Carraway had not first sought
this court’s leave to pursue such a request, properly
dismissed the motion for want of jurisdiction. Because this
was a final order for purposes of 28 U.S.C. § 2253(c)(1)(B),
Carraway must obtain a certificate of appealability in
order to obtain appellate review of the district court’s
decision. We deny him such a certificate and dismiss his
appeal.
I.
Thirteen years ago, a jury convicted Carraway of conspir-
ing to distribute (and to possess with the intent to distrib-
ute) cocaine and cocaine base, in violation of 21 U.S.C.
§ 846. The district court ordered him to serve a prison
term of 240 months, to be followed by a ten-year period of
supervised relief. On direct appeal, this court affirmed his
conviction and sentence. United States v. Carraway, 108
F.3d 745 (7th Cir. 1997) (per curiam).
In 1998, Carraway filed a collateral attack on his
conviction pursuant to 28 U.S.C. § 2255. The district court
denied his request for relief in October 1999. Carraway
appealed, but in an order dated April 12, 2000, a two-judge
panel of this court denied his request for a certificate of
appealability, concluding on review of the district court’s
order and the record that there was no substantial show-
ing of the denial of a constitutional right. See 28 U.S.C.
§ 2253(c)(2). One month later, the court denied Carraway’s
motion for reconsideration.
On January 24, 2005, Carraway commenced a new
challenge to his sentence in the district court. Under the
No. 06-3226 3
docket number assigned to the original criminal proceed-
ing, Carraway filed a pro se motion that he styled as a
request for relief under Federal Rule of Civil Procedure
60(b)(5). R. 985. That civil rule grants a district court
discretion to relieve a party from a final judgment when
“the judgment has been satisfied, released, or discharged,
or a prior judgment upon which it is based has been
reversed or otherwise vacated, or it is no longer equitable
that the judgment should have prospective application.”
Carraway’s motion attacked his conviction and sentence on
a variety of grounds, but the first and principal argument
advanced in his motion was that in view of the Supreme
Court’s decisions in Blakely v. Washington, 542 U.S. 296,
124 S. Ct. 2531 (2004), and United States v. Booker, 543
U.S. 220, 125 S. Ct. 738 (2005), his sentence was invalid
because its length was determined in part by adverse
factual findings rendered by the sentencing judge rather
than a jury.
The district court dismissed Carraway’s motion for lack
of jurisdiction. R. 987. Although Carraway had labeled his
motion as a request for relief under Rule 60(b)(5), the court
concluded that the motion was properly understood as one
seeking to vacate, set aside, or correct Carraway’s sentence
pursuant to section 2255. Because Carraway had already
pursued one collateral attack on his conviction and sen-
tence, he was precluded from pursuing a second or succes-
sive challenge unless authorized to do so by this court. See
§ 2255 ¶ 8; § 2244(b)(3). Carraway had not sought this
court’s leave to file another section 2255 petition. In view
of that omission, the district court concluded that it was
without jurisdiction to entertain his motion and dismissed
it on that basis. Carraway moved for reconsideration of the
dismissal, R. 989, but the court denied his motion, R. 994.
After filing a timely notice of appeal, R. 995, Carraway
filed a motion asking the district court to allow him to
proceed on appeal in forma pauperis. R. 996. The district
4 No. 06-3226
court granted that request. R. 998. The court also treated
his motion as an implicit request for a certificate of
appealability pursuant to section 2253(c). The court denied
that request, concluding that Carraway had not made a
substantial showing of the denial of a constitutional right.
R. 998.
II.
On appeal, Carraway largely reiterates that Booker1
effected such a significant change in sentencing law that
he should be permitted to seek relief from his sentence
notwithstanding his previous section 2255 petition.
However, the threshold question that we must confront is
whether the district court properly understood Carraway’s
Rule 60(b) motion as an unauthorized second or successive
request for relief under section 2255. If so, then the
dismissal of the motion for want of jurisdiction qualifies as
a final order for purposes of section 2253(c)(1)(B), such
that Carraway’s ability to appeal is conditioned on his
receipt of a certificate of appealability. See Sveum v.
Smith, 403 F.3d 447, 448 (7th Cir.) (per curiam), cert.
denied, ___ U.S. ___, 126 S. Ct. 442 (2005).
The district court correctly characterized Carraway’s
motion as a request for relief under section 2255. The fact
that Carraway labeled his motion as a request for relief
under civil Rule 60(b) rather than section 2255 is immate-
rial; it is the substance of the petitioner’s motion that
1
Carraway continues on appeal to invoke Blakely as well as
Booker, but as Blakely expressed no opinion as to the constitu-
tionality of the United States Sentencing Guidelines, see 542 U.S.
at 305 n.9, 124 S. Ct. at 2538 n.9, Booker is the relevant prece-
dent. McReynolds v. United States, 397 F.3d 479, 481 (7th Cir.),
cert. denied, 545 U.S. 1110, 125 S. Ct. 2559 (2005).
No. 06-3226 5
controls how his request for relief shall be treated. E.g.,
United States v. Lloyd, 398 F.3d 978, 979-80 (7th Cir.
2005) (quoting Melton v. United States, 359 F.3d 855, 857
(7th Cir. 2004)).2 As we stated in United States v. Evans,
224 F.3d 670, 672 (7th Cir. 2000), any post-judgment
motion in a criminal proceeding that fits the description of
a motion to vacate, set aside, or correct a sentence set
forth in the first paragraph of section 2255 should be
treated as a section 2255 motion. See also Lloyd, 398 F.3d
at 980. The statute’s opening paragraph permits a federal
prisoner to file a motion to have his sentence vacated, set
aside, or corrected “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[.]” § 2255 ¶ 1. Carraway seeks
relief from his sentence on the very types of grounds
identified in section 2255. Principally Carraway is con-
tending that in light of Booker, his sentence is constitu-
tionally defective. Likewise, the other errors raised in
Carraway’s motion are essentially challenges to the
lawfulness of his confinement. Thus, although styled as a
motion invoking Rule 60(b)(5), Carraway’s motion is
properly understood as a request for relief pursuant to
2
The oddity that Carraway has invoked a civil rule while
seeking relief in a criminal case has not escaped our attention.
However, the fact that Carraway’s motion was filed in a criminal
proceeding, to which the rules of civil procedure do not apply, is
not alone dispositive of the viability of the motion. See Betts v.
United States, 10 F.3d 1278, 1283 (7th Cir. 1993). It is the
substance of the motion that matters, id., and as we proceed to
explain, the substance of Carraway’s motion reveals that it is
really a request for relief pursuant to section 2255 and as such is
subject to the statutory limitations on second or successive
section 2255 motions.
6 No. 06-3226
section 2255. See Gonzalez v. Crosby, 545 U.S. 524, 125
S. Ct. 2641, 2647-48 (2005); United States v. Scott, 414
F.3d 815, 816-17 (7th Cir. 2005); Dunlap v. Litscher, 301
F.3d 873, 876 (7th Cir. 2002).
Understood as a request for section 2255 relief,
Carraway’s motion is subject to the requirement that
second or successive motions under this statute must be
authorized by the court of appeals. § 2255 ¶ 8; 28 U.S.C.
§ 2244. Unless and until the movant seeks and obtains
permission from the court of appeals to file such a motion,
the district court is without jurisdiction to entertain his
request. Nuñez v. United States, 96 F.3d 990, 991 (7th Cir.
1996). It is undisputed that Carraway did not seek such
authorization. The district court thus had no option other
than to dismiss his motion. Id.The district court’s lack of jurisdiction does not deprive
this court of jurisdiction to review the dismissal of
Carraway’s motion. E.g., Lloyd, 398 F.3d at 979. However,
the jurisdictional dismissal does constitute a final order in
a proceeding under section 2255. See § 2253(c)(1)(B);
Sveum, 403 F.3d at 448. Consequently, Carraway may only
appeal if he obtains a certificate of appealability.
§ 2253(c)(1)(B); Fed. R. App. P. 22(b)(1); Sveum, 403 F.3d
at 448. As we have noted, the district court denied him
such a certificate. R. 998. We too are empowered to issue
such a certificate, § 2253(c)(1), and Carraway has indeed
asked us to do so.
Having reviewed the appellate briefing and the record,
we conclude as the district court did that Carraway is not
entitled to a certificate of appealability because he has not
made a substantial showing of the denial of a constitu-
tional right. See § 2253(c)(2). Although Carraway’s request
for relief invokes various constitutional rights (including,
as relevant to his Booker claim, the Sixth Amendment
right to trial by a jury), he has not demonstrated that he
No. 06-3226 7
possesses a potentially valid basis for asserting such rights
now but not at the time that he pursued his first section
2255 motion. Carraway’s lead argument, that his sentence
is unconstitutional in light of the Supreme Court’s 2005
opinion in Booker, obviously relies on new precedent, but
the argument could properly be pursued in a second or
successive section 2255 motion only if it relied on a new
rule of constitutional law, made retroactive to cases on
collateral review by the Supreme Court. See § 2255 ¶ 8(2).
Yet, the Supreme Court has not (yet) made Booker retroac-
tive to cases on collateral review, and this court itself
concluded in McReynolds v. United States, 397 F.3d 479(7th Cir.), cert. denied, 545 U.S. 1110, 125 S. Ct. 2559(2005), that the Booker holding does not apply retroactively
to criminal cases which became final before Booker was
decided in January 2005. As for the other issues that
Carraway raises secondarily in his petition, so far as the
record and briefing reveal, none is based on a new rule of
constitutional law nor upon newly discovered evidence that
might be sufficient to establish by clear and convincing
proof that no reasonable factfinder would have found
Carraway guilty. See § 2255 ¶ 8(1) and (2). In short,
Carraway’s motion does not present the types of claims
that might warrant permission to pursue a second or
successive motion for relief under section 2255. And
because he lacks a basis for pursuing these claims now,
thirteen years after his conviction and more than eight
years after he commenced his first collateral challenge,
Carraway cannot show that he has been deprived of his
constitutional rights. See Sveum, 403 F.3d at 448 (“because
this is an unauthorized successive collateral attack, Sveum
cannot satisfy the criteria for a certificate of
appealability”).
III.
The district court correctly characterized Carraway’s
motion as one seeking relief under 28 U.S.C. § 2255, and
8 No. 06-3226
because Carraway had previously sought relief under
section 2255 and yet failed to seek this court’s leave to file
a second or successive motion under that statute, the
district court was without jurisdiction to entertain the
motion. Carraway may challenge the dismissal of his
motion only if he first obtains a certificate of appealability
in compliance with 28 U.S.C. § 2253(c). We have concluded
that Carraway has not made a substantial showing that
he was denied one or more of his constitutional rights. See
§ 2253(c)(2). For these reasons, we DENY Carraway a
certificate of appealability and DISMISS his appeal.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—3-8-07