United States v. Rodriguez, Amador

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted May 11, 2006*
Decided May 11, 2006
Before
Hon. WILLIAM J. BAUER, Circuit Judge
Hon. JOHN L. COFFEY, Circuit Judge
Hon. MICHAEL S. KANNE, Circuit Judge
No. 05-3177
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Northern District of
Illinois, Eastern Division
v.
No. 90 CR 848 - 3
AMADOR RODRIGUEZ,
Defendant-Appellant. Suzanne B. Conlon,
Judge.
ORDER
Amador Rodriguez was convicted by a jury in 1991 of one count of conspiracy
to distribute cocaine and sentenced to life in prison without parole. We affirmed his
conviction and sentence. See United States v. Flores, 5 F.3d 1070 (7th Cir. 1993).
While his direct appeal was pending, Rodriguez filed his first collateral attack
under 28 U.S.C. § 2255, contending that he received ineffective assistance of counsel
at trial and sentencing. We also affirmed the district court’s denial of Rodriguez’s §
*
After an examination of the appellant’s brief and the record, we have
concluded that oral argument is unnecessary. Thus the appeal is submitted on the
appellant’s brief and the record. See Fed. R. App. P. 34(a)(2).
No. 05-3177 Page 2
2255 motion. See id. Over a decade later, Rodriguez launched his second collateral
attack in a document he titled “Petition Pursuant to 28 U.S.C. § 1651, ‘The All
Writs Act’” (the “2004 Petition”). In that petition, the subject of this appeal,
Rodriguez challenged the form of his indictment and the sufficiency of the evidence
at trial. Rodriguez acknowledged that the Anti-Terrorism and Effective Death
Penalty Act (“AEDPA”) barred him from bringing his claims in a successive motion
under § 2255 because they arise from neither newly discovered evidence nor a new
rule of constitutional law. He argued instead that § 1651 allows prisoners serving
life sentences an opportunity to challenge their convictions despite AEDPA’s
procedural bars. The district court disposed of the petition in one sentence:
“Defendant Rodriguez’s petition pursuant to 28 U.S.C. § 1651 [244-1] is denied.”
Rodriguez appeals.
Regardless what he calls it, Rodriguez’s 2004 Petition is an impermissible
successive collateral attack under § 2255. We have consistently held that the
substance of a prisoner’s motion, not its caption, determines the source of authority
for relief: “Any motion filed in the district court that imposed the sentence, and
substantively within the scope of § 2255 ¶ 1, is a motion under § 2255, no matter
what title the prisoner plasters on the cover.” Melton v. United States, 359 F.3d
855, 857 (7th Cir. 2004); see United States v. Lloyd, 398 F.3d 978, 979-80 (7th Cir.
2005); Godoski v. United States, 304 F.3d 761, 763 (7th Cir. 2002). Rodriguez’s
motion advanced the kind of arguments and sought the kind of relief covered by
§ 2255 ¶ 1. See, e.g., United States v. Scott, 414 F.3d 815, 817 (7th Cir. 2005);
Piaskowski v. Bett, 256 F.3d 687, 691-93 (7th Cir. 2001). Thus it is a second
collateral attack and, because Rodriguez has already litigated a § 2255 motion, he
was required to obtain our permission before filing this subsequent action. See
Nunez v. United States, 96 F.3d 990, 991 (7th Cir. 1996) (establishing that
successive bar applies even when first collateral attack filed pre-AEDPA). He did
not. The district court therefore should have dismissed the action for lack of
jurisdiction. See Scott, 414 F.3d at 817; Lloyd, 398 F.3d at 980.
We have treated Rodriguez’s brief as an implicit request for permission to
commence a second collateral attack. We deny that request, however, because, by
his own admission, Rodriguez fails to satisfy the criteria for bringing a successive
petition. See 28 U.S.C. §§ 2244(b)(2), 2255 ¶ 8.
Finally, we remind the government that it is not our jurisdiction at issue
when a prisoner files an unauthorized successive collateral attack. Lloyd, 398 F.3d
at 979. Nor is our jurisdiction dependent on a certificate of appealability. Buie v.
McAdory, 322 F.3d 980, 981 (7th Cir. 2003).
The judgment of the district court is VACATED, and the case is REMANDED
with instructions to dismiss for want of jurisdiction.