United States v. Canino, Michael J.

In the
United States Court of Appeals
For the Seventh Circuit
No. 00-1192
United States of America,
Plaintiff-Appellee,
v.
Michael J. Canino,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Illinois.
No. 87-40045--James L. Foreman, Judge.
Submitted April 27, 2000--Decided May 10, 2000
Before Eschbach, Easterbrook, and Manion, Circuit
Judges.
Easterbrook, Circuit Judge. Michael Canino is
serving a term of 26 years’ imprisonment
following his conviction as a "kingpin" of a
continuing criminal enterprise that imported and
distributed many tons of marijuana. 21 U.S.C.
sec.848. See United States v. Canino, 949 F.2d
928 (7th Cir. 1991). In 1997 he filed a
collateral attack under 28 U.S.C. sec.2255. The
district court dismissed this as untimely, see
sec.2255 para.6, and we denied his application
for a certificate of appealability. Next Canino
filed a motion for relief under the version of
Fed. R. Crim. P. 35(a) applicable to offenses
that occurred before November 1, 1987. Canino was
indicted on September 29, 1987, so he is covered
by this old rule, which says that "[t]he court
may correct an illegal sentence at any time".
Canino contends that two cases decided after his
convictions make both his convictions and the
sentence based on them unlawful. See Rutledge v.
United States, 517 U.S. 292 (1996); Richardson v.
United States, 526 U.S. 813 (1999).
Former Rule 35(a) is limited to the correction
of an illegal sentence; it does not cover
arguments that the conviction is itself improper,
for such arguments must be raised under sec.2255.
See Hill v. United States, 368 U.S. 424, 430
(1962). Canino responds that Rule 35(a) permits
defendants to raise double-jeopardy objections to
their sentences and contends that because both
Richardson and Rutledge deal with the double
jeopardy clause Rule 35(a) supplies a remedy.
This is half right: old Rule 35(a) indeed
permitted district courts to entertain "at any
time" double-jeopardy objections to a sentence,
but Canino’s objections do not concern his
sentence. He does not, for example, contend that
he was sentenced twice on the basis of a single
conviction. He believes that the convictions are
invalid because of a prior conviction in the
Eastern District of Pennsylvania, see United
States v. Canino, 1987 U.S. Dist. Lexis 4590 (E.D.
Pa. May 28, 1987), and therefore that sentences
based on these convictions are improper; but this
is exactly the kind of argument knocked out by
Hill, and properly so unless Rule 35(a) is to
subsume the entire law of collateral review and
nullify decisions such as Teague v. Lane, 489
U.S. 288 (1989), which limit the retroactive use
of constitutional novelties as the basis of
collateral attacks.
The district court recognized that former Rule
35(a) does not permit it to entertain the sort of
arguments Canino advances. Nonetheless, it
proceeded to consider and reject those arguments
on the merits. That was a mistake, for if Rule
35(a) does not authorize this proceeding (and it
does not), then it is nothing but a disguised
collateral attack--a second collateral attack,
which may not proceed without prior consent of
this court. Motions nominally under a Rule of
Criminal Procedure, but raising arguments within
the scope of sec.2255, must be treated as
collateral attacks and dismissed if the
petitioner has filed a prior collateral attack.
Romandine v. United States, 206 F.3d 731 (7th
Cir. 2000); United States v. Woods, 169 F.3d 1077
(7th Cir. 1999). Once the district court
concluded that this was not a proper Rule 35
motion, it was obliged to dismiss the application
for want of jurisdiction. Nunez v. United States,
96 F.3d 990 (7th Cir. 1996).
We have construed Canino’s appellate brief as
an implied request for leave to commence a second
collateral attack, and so understood the request
is denied. He does not argue that either Rutledge
or Richardson is "a new rule of constitutional
law, made retroactive to cases on collateral
review by the Supreme Court, that was previously
unavailable." 28 U.S.C. sec.2255 para.8(2).
Moreover, a collateral attack based on Rutledge
would be untimely, see sec.2255 para.6(3), even
if that case had been made retroactive by the
Supreme Court.
The judgment of the district court is vacated,
and the case is remanded with instructions to
dismiss for want of jurisdiction. Canino’s
request for leave to commence a second collateral
attack under sec.2255 is denied.