Ross, Kimothy K. v. Veach, Rick V.

NONPRECEDENTIAL DISPOSITION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 February 21, 2007*
Decided February 26, 2007
Before
Hon. FRANK H. EASTERBROOK, Chief Judge
Hon. RICHARD A. POSNER, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
No. 06-3047 Appeal from the United
States District Court for the
KIMOTHY K. ROSS, Southern District of Indi-
Petitioner-Appellant, ana, Terre Haute Division.
v.
No. 2:06-cv-73-LJM-WTL
R. V. VEACH, Warden, Larry J. McKinney, Chief
Respondent-Appellee. Judge.
Order
Kimothy Ross was convicted in 1988 of conspiracy to distribute cocaine. He con-
tends in this action under 28 U.S.C. §2241 that he is today eligible for parole and
additional good-time credits that would require his release before the date calcu-
lated by the Bureau of Prisons. The action was filed, as §2241 requires, in the dis-
trict of Ross’s custody. See Rumsfeld v. Padilla, 542 U.S. 426 (2004). But Ross was
convicted in the Eastern District of Michigan, not the Southern District of Indiana,
where Ross is imprisoned (at USP Terre Haute). The district court concluded that
Ross’s beef is with his sentence rather than the way the Bureau of Prisons has ad-
ministered that sentence, and it dismissed the action on the ground that 28 U.S.C.
§2255 ¶5 forecloses resort to §2241.
* After examining the briefs and the record, we have concluded that oral argument is unneces-
sary. See Fed. R. App. P. 34(a); Cir. R. 34(f).
No. 06-3047 Page 2
Ross does not deny that the Bureau of Prisons has implemented the sentence as
actually pronounced. That sentence was affirmed on direct appeal, United States v.
Ross, No. 88-1756 (6th Cir.) (unpublished order), cert. denied, 498 U.S. 839 (1990).
A motion for relief under Fed. R. Crim. P. 35 on the ground that the sentence was
illegal was denied in the district court, and that decision too was affirmed. United
States v. Ross, No. 94-1883 (6th Cir. Apr. 20, 1995) (unpublished order). The argu-
ment Ross made then is the same one he advances now: that his criminal activity
began before November 1, 1987, the effective date of the Sentencing Reform Act of
1984, and so his sentence should have been based on the old law—and as a conse-
quence would have allowed parole and extra good-time credits.
The Eastern District of Michigan sentenced Ross under the 1984 Act. The Bu-
reau of Prisons has proceeded accordingly. Whether the district judge erred in im-
posing sentence under the 1984 Act is the only substantive issue in the case, and
given §2255 that subject must be litigated in the Eastern District of Michigan, just
as the district court held.
It would be inappropriate to transfer this proceeding to the Eastern District of
Michigan under 28 U.S.C. §1631, for two reasons. First, Ross’s argument has been
raised there and rejected; that decision, affirmed by the Sixth Circuit, is preclusive.
(Ross does not argue that any exception to res judicata is applicable. The law today
is the same as it was in 1995: criminal conduct begun before November 1, 1987, and
continued thereafter comes within the scope of the 1984 Act. See United States v.
Masters, 924 F.2d 1362, 1369 (7th Cir. 1991).) Second, a motion in the sentencing
court under §2255 would be untimely, given the one-year statute of limitations in
the Antiterrorism and Effective Death Penalty Act of 1996. Ross’s time to present
his argument under §2255 expired in April 1997, almost a decade ago. There is no
point in dragging out this collateral litigation.
AFFIRMED