Kevin Unthank v. Brian Jett ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 08-1417
K EVIN U NTHANK,
Petitioner-Appellant,
v.
B RIAN JETT, Warden, Federal Correctional Institution
at Terre Haute, Indiana,
Respondent-Appellee.
Appeal from the United States District Court for the
Southern District of Indiana, Terre Haute Division.
No. 2:07-cv-0096-LJM-WTL—Larry J. McKinney, Judge.
A RGUED N OVEMBER 5, 2008—D ECIDED D ECEMBER 4, 2008
Before E ASTERBROOK, Chief Judge, and R IPPLE and
R OVNER, Circuit Judges.
E ASTERBROOK, Chief Judge. More than a decade ago, we
affirmed Kevin Unthank’s conviction and 262-month
sentence for violating federal drug laws. United States v.
Unthank, 109 F.3d 1205 (7th Cir. 1997). Ever since, he has
been trying to have the conviction vacated or the sentence
reduced. In 1998 he filed a motion under 28 U.S.C. §2255;
2 No. 08-1417
it was denied. In 2001 he sought leave from this court to
commence a second collateral attack; that request was
denied. In 2002, after his transfer to a federal prison in
Kentucky, Unthank filed a petition for a writ of habeas
corpus under 28 U.S.C. §2241. That petition was dismissed
because the remedy under §2255 is exclusive. Unthank v.
Sanders, No. 02-cv-56-HRW (E.D. Ky. June 28, 2002). Next
Unthank asked the sentencing court (in the Southern
District of Illinois) to “correct the presentence report”; the
judge saw this as a thinly disguised collateral attack, see
Gonzalez v. Crosby, 545 U.S. 524 (2005), and dismissed it as
an unauthorized successive petition. After his 2007 transfer
to a prison in Indiana, Unthank tried yet again. He filed a
§2241 petition in the Southern District of Indiana, which
agreed with the Eastern District of Kentucky and dismissed
the petition, leading to this appeal.
Unthank believes that he is entitled to a reduced punish-
ment because, after sentence was imposed in his federal
case, one of his state convictions was vacated. Recalculat-
ing his criminal history in light of the state court’s decision
would (or at least could) have led to a lower federal
penalty. The Supreme Court concluded in Johnson v. United
States, 544 U.S. 295 (2005), that the post-sentencing vacatur
of a state conviction that affected the federal sentence may
in principle support relief under §2255. Moreover, the
Court held in Johnson, vacatur is a new “fact” that opens a
one-year window to seek collateral relief. See 28 U.S.C.
§2255(f)(4).
But Unthank’s collateral attack in 1998 blocks access to
the kind of review authorized by Johnson. Section 2255
No. 08-1417 3
allows only one collateral attack unless the prisoner meets
the conditions in §2255(h): “(1) newly discovered evidence
that, if proven and viewed in light of the evidence as a
whole, would be sufficient to establish by clear and
convincing evidence that no reasonable factfinder would
have found the movant guilty of the offense; or (2) a new
rule of constitutional law, made retroactive to cases on
collateral review by the Supreme Court, that was previ-
ously unavailable.” Unthank does not rely on a new rule of
constitutional law, and the vacatur of his state conviction,
although a new “fact” under Johnson, is not one that shows
him innocent of the drug crime. So, as we concluded in
2001, Unthank cannot use §2255(h) to proceed a second
time under §2255.
This leads Unthank to contend that he may employ §2241
instead. According to §2255(e), a federal prisoner may use
§2241 to contest his conviction or sentence only when “the
remedy by motion [under §2255] is inadequate or ineffec-
tive to test the legality of his detention.” When §2255(h)
blocks a successive petition, Unthank submits, §2255 is
inadequate and ineffective.
Taylor v. Gilkey, 314 F.3d 832 (7th Cir. 2002), considers
and rejects this line of argument. Taylor wanted to make
arguments based on a new decision of the Supreme Court
that, he maintained, showed that the disposition of his first
§2255 proceeding had been mistaken. The intervening
decision did not, however, create a new and retroactive
rule of constitutional law; at most it just showed that an
error had been made in applying an old rule to Taylor’s
situation. Section 2255(h) thus did not allow a second
4 No. 08-1417
collateral attack, which set up Taylor’s argument that
whenever §2255(h) closes the door to a renewed challenge
under §2255, then §2255(e) must open the door to a chal-
lenge under §2241. We replied that this would make
§2255(h) self-defeating:
To say that [the] limitations [adopted in 1996]
authorize further collateral proceedings would be
to use [§2255(e)] to return the courts to the world
of Sanders v. United States, 373 U.S. 1 (1963), in
which prisoners may file as many collateral attacks
as they please, provided that they don’t abuse the
writ. One goal of the Antiterrorism and Effective
Death Penalty Act of 1996, which added §2244(b)
and [§2255(h)] to the Judicial Code, was to replace
Sanders with an approach under which only de-
fined circumstances permit successive collateral
attacks. See Burris v. Parke, 95 F.3d 465 (7th Cir.
1996) (en banc). The escape hatch in [§2255(e)]
must be applied in light of that history.
314 F.3d at 836. If Unthank wanted to use §2255 to argue
for a lower sentence after asking a state court to vacate one
or more of his prior convictions, he had only to refrain
from filing a collateral attack until the state court had
acted. He may have used unwisely the one §2255 motion
allowed as of right, but he did use it in 1998 and has not
met the statutory requirements for an additional round of
collateral review.
Quite apart from the limit on successive collateral
attacks, §2255 is inadequate or ineffective only when a
prisoner is unable to present a claim of actual innocence.
No. 08-1417 5
Normally innocence may be demonstrated during the
criminal prosecution (including the direct appeal) or a
§2255 motion filed within a year of the conviction’s finality.
But if, after the year has passed, the Supreme Court
interprets the statute underlying the conviction in a way
that shows that the defendant did not commit a crime,
§2255 is unavailable—for even though such a statutory
decision supports collateral relief, see Davis v. United States,
417 U.S. 333 (1974), §2255(f) and (h) do not authorize new
(or belated) collateral attacks in response to statutory
interpretations. “Because Congress may have overlooked
the possibility that new and retroactive statutory decisions
[showing that the defendant did not commit a crime] could
support collateral review, we held in [In re Davenport, 147
F.3d 605 (7th Cir. 1998),] that for this small class of situa-
tions §2255 is ‘inadequate or ineffective to test the legality
of [the] detention.’ See also Gray-Bey v. United States, 209
F.3d 986 (7th Cir. 2000).” Taylor, 314 F.3d at 835.
Unthank does not contend that a glitch in §2255 prevents
application to his situation of a retroactive decision of the
Supreme Court. Nor does he claim to be innocent of the
current crime. He says only that his sentence is too high,
and as we explained in Hope v. United States, 108 F.3d 119(7th Cir. 1997), this differs from a claim that he is innocent
of the crime of which he was convicted.
A FFIRMED
12-4-08