United States v. Scott, David

In the
United States Court of Appeals
For the Seventh Circuit
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No. 04-1679
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DAVID SCOTT,
Defendant-Appellant.
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Appeal from the United States District Court
for the Central District of Illinois.
No. 99-30014—Jeanne E. Scott, Judge.
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SUBMITTED DECEMBER 20, 2004—DECIDED JULY 12, 2005
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Before COFFEY, EASTERBROOK, and MANION, Circuit
Judges.
EASTERBROOK, Circuit Judge. The United States asks us
to overrule United States v. Campbell, 294 F.3d 824 (7th
Cir. 2002), which held that a district court possesses
subject-matter jurisdiction to entertain a federal prisoner’s
post-judgment motion seeking grand-jury records that he
thinks may undermine the validity of his conviction. See
also United States v. Campbell, 324 F.3d 497, 499-500 (7th
Cir. 2003) (concurring opinion). We postponed consideration
of the United States’ request pending the Supreme Court’s
2 No. 04-1679
decision in Gonzalez v. Crosby, No. 04-6432 (U.S. June 23,
2005). Gonzalez shows that Scott’s motion is a successive
collateral attack. Because it must be dismissed for that
reason, we leave to another day the question whether
federal jurisdiction is available when the demand for
grand-jury records does not seek to upset a conviction.
Scott’s convictions for several drug-related offenses have
been affirmed, see 267 F.3d 729 (7th Cir. 2001), the district
court denied his motion for relief under §2255, and we de-
clined to issue a certificate of appealability. No. 03-1862
(7th Cir. July 21, 2003) (unpublished order). So his opportu-
nities for review have been exhausted, unless the conditions
for a further collateral attack are met. See 28 U.S.C.
§2244(b), §2255 ¶8. Unwilling to take no for an answer,
however, Scott filed another motion in the criminal case,
demanding to see the grand jury’s records so that he could
satisfy himself that 12 grand jurors, from a body of at least
16, had voted in favor of the indictment. The district judge
conducted a review in camera and assured Scott that these
requirements of Fed. R. Crim. P. 6(a)(1) and (f) had been
fulfilled. Scott sought reconsideration, telling the judge that
he wanted to conduct his own review because “the defen-
dant here is challenging the legality, constitutionality and
authenticity of the instant indictment.” The district judge
denied this motion.
Campbell holds that a request for grand-jury materials
differs from a collateral attack. One might suppose that this
implies a lack of jurisdiction, for once a criminal case ends
in a sentence the judge’s power lapses. See, e.g., Carlisle v.
United States, 517 U.S. 416 (1996); Eaton v. United States,
178 F.3d 902 (7th Cir. 1999). A post-judgment motion needs
a source of authority for the judge to act, and Fed. R. Crim.
P. 6(e), which authorizes motions to inspect grand-jury
materials in criminal cases, does not purport to authorize
judges to act after the litigation has concluded. If the
documents are relevant to some other pending case, then
No. 04-1679 3
authority to consider a request for access may be supplied
by the ancillary jurisdiction. See, e.g., United States v.
Baggot, 463 U.S. 476 (1983); McDonnell v. United States, 4
F.3d 1227, 1247-48 (3d Cir. 1993); American Friends Service
Committee v. Webster, 720 F.2d 29, 71-72 (D.C. Cir. 1983);
United States v. Tager, 638 F.2d 167, 171 (10th Cir. 1980);
Doe v. Rosenberry, 255 F.2d 118 (2d Cir. 1958) (L. Hand, J.).
See also Charles Alan Wright, 1 Federal Practice & Proce-
dure §109 (3d ed. 1999). But Scott has no other proceeding
under way, and his only option for launching one would be
§2255.
Gonzalez holds that a motion under Fed. R. Civ. P. 60(b)
must be treated as a collateral attack when the prisoner
makes a “claim” within the scope of §2244(b). This means,
the Court concluded, that a procedural argument (say, one
about the statute of limitations) raised using Rule 60(b) is
not a new collateral attack, but that an objection to the
validity of the criminal conviction or sentence is one no mat-
ter how it is couched or captioned. See also, e.g., Melton v.
United States, 359 F.3d 855 (7th Cir. 2004); United States
v. Evans, 224 F.3d 670 (7th Cir. 2000). The reasoning of
Gonzalez does not depend on which rule the prisoner in-
vokes; its approach is as applicable to post-judgment
motions under Fed. R. Crim. P. 6(e) as it is to motions
under Rule 60(b). Any contrary understanding in Campbell
about the extent to which §2244(b) and §2255 ¶8 apply to
post-judgment motions that do not bear the label “collateral
attack” must yield to higher authority.
This means that, if Scott had sought the grand-jury ma-
terials out of academic interest, he would not have made a
“claim” within the scope of §2244(b), and his motion would
not have been a second collateral attack. Indeed, if he had
sought the materials hoping that they would furnish the
basis for a request to this court under §2255 ¶8, then the
motion in the district court would not (yet) be a second
collateral attack. (This is parallel to the holding of Gonzalez
4 No. 04-1679
that an effort to clear away the statute of limitations, so
that a substantive challenge to the conviction could be
launched, is not a “claim” under §2244(b).) But Scott did not
stop with a request for documents. He told the district
judge, point blank, that he “is challenging the legality,
constitutionality and authenticity of the instant indict-
ment.” That is a “claim” for collateral relief under Gonzalez
and initiated a second collateral attack.
Because Scott lacks this court’s permission to pursue
another collateral attack, the district judge should have dis-
missed it for lack of jurisdiction. See Nuñez v.
United States, 96 F.3d 990 (7th Cir. 1996). This jurisdic-
tional failing makes it unnecessary for us to consider
whether the lack of a pending case in which the requested
information could be used is a second jurisdictional failing.
That subject, the other half of Campbell, can be taken up if
it matters to some future proceeding.
The judgment of the district court is vacated, and the case
is remanded with instructions to dismiss for lack of sub-
ject-matter jurisdiction. To the extent Scott’s brief implies
a request for authorization to commence another collateral
attack, that request is denied because the conditions of
§2244(b)(2) have not been satisfied.
A true Copy:
Teste:
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Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—7-12-05