Roland Sperberg v. Helen Marberry

NONPRECEDENTIAL DISPOSITION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 June 17, 2010∗
Decided June 23, 2010
Before
FRANK H. EASTERBROOK , Chief Judge
JOHN L. C OFFEY, Circuit Judge
ANN C LAIRE WILLIAMS, Circuit Judge
No. 09-2750 Appeal from the United
States District Court for the
ROLAND C. SPERBERG, Southern District of Indiana,
Petitioner-Appellant, Terre Haute Division.
v. No. 2:09-cv-22-WTL-JMS
William T. Lawrence, Judge.
HELEN J. MARBERRY,
Respondent-Appellee.
Order
The judgment of the district court dismissing Sperberg’s petition under 28 U.S.C.
§2241 for want of jurisdiction is incompatible with Collins v. Holinka, 510 F.3d 666 (7th
Cir. 2007), which holds that a prisoner’s use of the one collateral attack allowed under
28 U.S.C. §2255(h) does not deprive a district court of subject-matter jurisdiction to
entertain a later petition under §2241. Whether the proceeding is allowable under
§2255(e) is a question on the merits; it does not affect subject-matter jurisdiction.
∗ This successive appeal has been submitted to the original panel under Operating Procedure 6(b). After
examining the briefs and the record, we have concluded that oral argument is unnecessary. See Fed. R.
App. P. 34(a); Cir. R. 34(f).
No. 09-2750 Page 2
Compare In re Davenport, 147 F.3d 605 (7th Cir. 1998), with Taylor v. Gilkey, 314 F.3d 832(7th Cir. 2002).
On remand, the district court should reconsider its decision in light of Welch v.
United States, 604 F.3d 402 (7th Cir. 2010), and the position asserted in the brief for the
respondent warden filed in this court on May 24, 2010. We leave to the discretion of the
district court whether it is appropriate to appoint a lawyer to serve as amicus curiae in
support of the position that this situation is covered by Taylor rather than Davenport.