Christopher Andre Vialva v. T. J. Watson ( 2020 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 20-2710
CHRISTOPHER ANDRÉ VIALVA,
Petitioner-Appellant,
v.
T.J. WATSON, WARDEN, UNITED STATES PENITENTIARY, TERRE
HAUTE,
Respondent-Appellee.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Terre Haute Division.
No. 2:20-cv-00413-JMS-DLP — Jane Magnus-Stinson, Chief Judge.
____________________
SUBMITTED SEPTEMBER 17, 2020 — DECIDED SEPTEMBER 18, 2020
____________________
Before EASTERBROOK, KANNE, and ROVNER, Circuit Judges.
PER CURIAM. Christopher Vialva has been sentenced to
death for murders he commiWed in 1999. In this proceeding
under 28 U.S.C. §2241 he seeks a stay of his execution, which
is scheduled for September 24. The district court denied that
request, ruling that resort to §2241 is forbidden by 28 U.S.C.
§2255(e), which provides: “An application for a writ of habe-
as corpus in behalf of a prisoner who is authorized to apply
2 No. 20-2710
for relief by motion pursuant to this section, shall not be en-
tertained if it appears that the applicant has failed to apply
for relief, by motion, to the court which sentenced him, or
that such court has denied him relief, unless it also appears
that the remedy by motion is inadequate or ineffective to test
the legality of his detention.” The district court held that
§2255 is adequate to resolve Vialva’s legal claims. After re-
viewing the parties’ briefs, which address the merits as well
as the request for a stay, we agree with that conclusion.
The details of Vialva’s crimes do not maWer for current
purposes. Nor do the details of his current legal arguments.
It is enough to identify the sort of contentions he presents.
He maintains that he received ineffective assistance of coun-
sel at trial because his lawyer had a conflict of interest.
(While representing Vialva, counsel also was seeking an ap-
pointment as an Assistant United States AWorney.) He also
contends that counsel conducted an inadequate investigation
of his mental state and thus did not represent him compe-
tently during sentencing. Vialva maintains that the district
judge suffered from alcoholism and should not have been
allowed to preside at trial or impose sentence. These conten-
tions may or may not be substantively valid, but Vialva’s
problem in seeking relief under §2241 is that issues of these
kinds are commonly entertained and resolved under §2255.
Indeed, Vialva’s contentions were entertained and re-
solved under §2255. See United States v. Bernard and Vialva,
762 F.3d 467 (5th Cir. 2014); United States v. Vialva, 904 F.3d
356 (5th Cir. 2018). The fact that Vialva lost does not entitle
him to another collateral aWack under §2241. Nor does the
fact that the Fifth Circuit resolved his collateral aWacks by
denying his requests for certificates of appealability. He
No. 20-2710 3
maintains that the Fifth Circuit did not give his arguments
the consideration they deserved, but we do not sit in judg-
ment on the decisions of our sister circuits. That power be-
longs to the Supreme Court, which denied Vialva’s petitions
for certiorari. Vialva v. United States, 136 S. Ct. 1155 (2016);
Vialva v. United States, 140 S. Ct. 860 (2020).
It isn’t as if the Fifth Circuit refused to consider Vialva’s
arguments. That court declined to issue certificates of ap-
pealability only after extended discussion of the merits. Re-
lying on Buck v. Davis, 137 S. Ct. 759 (2017), Vialva insists
that the Fifth Circuit should have issued certificates of ap-
pealability, but that claim of error was for the Supreme
Court to address. He received effective merits decisions, de-
spite the absence of formal certificates of appealability, and a
§2241 proceeding is not an authorized way to contest the
procedure the Fifth Circuit used.
This circuit has held that §2255 can be deemed “inade-
quate or ineffective” when a novel and retroactive statutory
decision cannot be raised under §2255, see In re Davenport,
147 F.3d 605 (7th Cir. 1998), or when newly disclosed facts
support a constitutional theory that could not have been liti-
gated on an initial proceeding under §2255, see Webster v.
Daniels, 784 F.3d 1123 (7th Cir. 2015) (en banc). Neither de-
scription applies to Vialva’s contentions. He does not rely on
a new, retroactive legal rule; he does not point to any facts
that came to light after the Fifth Circuit’s decisions. Instead
he contends that the courts that addressed his §2255 pro-
ceeding (and his effort to reopen them under Fed. R. Civ. P.
60(b)) reached an incorrect result under unchanged law ap-
plied to established facts. PermiWing such a step would effec-
tively eliminate §2255(e) from the United States Code.
4 No. 20-2710
Vialva maintains that, if §2255(e) blocks him from using
§2241, then it violates the Suspension Clause (Art. I §9 cl.2):
“The Privilege of the Writ of Habeas Corpus shall not be
suspended, unless when in Cases of Rebellion or Invasion
the public Safety may require it.” Yet the Supreme Court has
held that the Suspension Clause does not entitle anyone to
successive collateral aWacks on a criminal judgment. See
Felker v. Turpin, 518 U.S. 651, 663–64 (1996); Swain v. Pressley,
430 U.S. 372 (1997); cf. United States v. Hayman, 342 U.S. 205
(1952). See also Lindh v. Murphy, 96 F.3d 856, 867–68 (7th Cir.
1996) (en banc), vacated on other grounds, 521 U.S. 320
(1997). One opportunity for one round of review suffices.
A person who seeks a stay pending appeal must establish
a material probability of success on the merits. A beWer-than-
negligible chance will not do. See Nken v. Holder, 556 U.S.
418, 434 (2009); Illinois Republican Party v. PriMker, No. 20-
2175 (7th Cir. Sept. 3, 2020), slip op. 4–5. Vialva has not es-
tablished even a beWer-than-negligible chance of prevailing
in his quest for another round of collateral review.
The motion for a stay of execution is denied, and the
judgment of the district court is summarily affirmed.