NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted December 16, 2010*
Decided December 16, 2010
Before
JOHN L. COFFEY, Circuit Judge
JOEL M. FLAUM, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
No. 10‐2475
DAVID HARGROVE, Appeal from the United States District
Petitioner‐Appellant, Court for the Central District of Illinois.
v. No. 09‐3078
UNITED STATES OF AMERICA, Jeanne E. Scott,
Respondent‐Appellant. Judge.
O R D E R
David Hargrove appeals from the denial of a motion to set aside a 1989 conviction
for conspiracy to distribute cocaine, see
42 U.S.C. § 846. Having already failed to obtain
relief on direct appeal and collateral review over a decade ago, he filed the current motion
last year under the All Writs Act, see
28 U.S.C. § 165. The district court construed the filing
as a writ of error coram nobis and denied it on the merits. Because Hargrove was still in
custody when he filed the motion, the motion was an unauthorized successive petition
under
28 U.S.C. § 2255, and should have been dismissed for lack of jurisdiction.
*
After examining the briefs and the record, we have concluded that oral argument is
unnecessary. Thus, the appeal is submitted on the briefs and the record. See FED. R. APP. P.
34(a)(2)(C).
No. 10‐2475 Page 2
Following his conviction, Hargrove was sentenced to 150 months’ imprisonment and
ten years’ supervised release. Several years after we affirmed his conviction and sentence
on direct appeal, Hargrove filed a petition for collateral review under
28 U.S.C. § 2255. The
district court denied the petition along with Hargrove’s request for a certificate of
appealability. Hargrove appealed that denial, and we too issued an order denying his
request for a certificate of appealability. In March of this year, while still serving his term of
supervised release, Hargrove filed the present motion for relief from his conviction. He
raises three arguments that his conviction is unlawful: a defect in his indictment deprived
the district court of jurisdiction, he is actually innocent, and he was sentenced under the
wrong provision of the criminal code. Observing that Hargrove was not incarcerated when
he filed the document, the district court construed the filing as a petition for a writ of error
coram nobis and went on to deny it on the merits, explaining that the petition failed to raise
any grounds for collateral relief. Hargrove filed a motion for reconsideration, which was
also denied. He appeals from the denial of both his motion under the All Writs Act and his
motion for reconsideration.
We do not address the merits of Hargrove’s appeal. As the government observes,
the district court lacked jurisdiction to consider Hargrove’s filing, which the court should
have dismissed as an unauthorized successive petition under
28 U.S.C. § 2255. The writ of
coram nobis is an extraordinary form of relief, used only when a defendant is not in
custody—rendering § 2255 is unavailable—and collateral relief is necessary to alleviate a
civil disability flowing from an invalid conviction. See Godoski v. United States,
304 F.3d 761,
762 (7th Cir. 2002); United States v. Torres,
282 F.3d 1241, 1245 (10th Cir. 2002). But a motion
that a defendant files after the time for direct appeal has expired, while in custody, and
raising grounds mentioned in § 2255, is a collateral attack under § 2255, regardless of the
label the defendant assigns it. See United States v. Evans,
224 F.3d 670, 672 (7th Cir. 2000).
Hargrove’s most recent motion fits the description of a petition under § 2255.
Hargrove filed it long after he lost on direct appeal and while still subject to supervised
release, which is a form of custody, see United States v. Presley,
487 F.3d 1346, 1349 (11th Cir.
2007); Kusay v. United States,
62 F.3d 192, 193 (7th Cir. 1995); United States v. Larson,
417 F.3d
741, 747 (7th Cir. 2005). Because he has already filed one petition under § 2255, he needed
to receive permission from us to file the second.
28 U.S.C. §§ 2244(b)3; 2255(h). And
because he did not receive advance permission from us, the filing should have been
dismissed for want of jurisdiction. See Jackson v. United States,
463 F.3d 635, 639‐40 (7th Cir.
2006); United States v. Lloyd,
398 F.3d 978, 979 (7th Cir. 2005). (We can consider Hargrove’s
appeal to be an implied request for such permission. Nunez v. United States,
92 F.3d 990,
991‐92 (7th Cir. 1996). But he does not assert newly discovered evidence or a new rule of
No. 10‐2475 Page 3
constitutional law, as required by
28 U.S.C. § 2255(h); accordingly, we deny permission for a
successive collateral attack.).
Finally, it matters not that Hargrove’s term of supervision expired during the
pendency of this appeal. The question is whether the district court had jurisdiction to
review the petition, and we examine jurisdiction based on the circumstances prevailing at
the time Hargrove asked the district to exercise it. See Hukic v. Aurora Loan Serv.,
588 F.3d
420, 427 (7th Cir. 2009). When Hargrove filed his petition with the district court, he was still
under supervised release and therefore in custody.
We VACATE the judgment of the district court and REMAND with instructions to
DISMISS for lack of jurisdiction. We also DENY Hargrove’s implied request for permission
to file a successive collateral attack.
