United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

December 6, 2007

Before

Hon. FRANK H. EASTERBROOK, Chief Judge

Hon. WILLIAM J. BAUER, Circuit Judge

Hon. DANIEL A. MANION, Circuit Judge

No. 07-1820

BOBBY MARVIN COLLINS,

Petitioner-Appellant,

v.

UNITED STATES OF AMERICA,

Respondent-Appellee.

Appeal from the United

States District Court for the 

Western District of

Wisconsin.

No. 07 C 130

Barbara B. Crabb,

Chief Judge.

Order

Bobby Collins, an inmate of the Federal Correctional Institution in Oxford,

Wisconsin, filed in the Western District of Wisconsin a petition for a writ of habeas

corpus under 28 U.S.C. §2241. The district court concluded that this petition should

have been filed under 28 U.S.C. §2255, because it challenges the validity of

petitioner’s conviction, and dismissed it (rather than transferring it to the District

of Minnesota, the right venue under §2255) because Collins has already filed and

lost under §2255.

Two assumptions appear to lie behind this ruling. One is that §2241 deals

only with conditions of confinement and cannot be used to contest a conviction’s

validity. That is incorrect; §2241 by its terms covers any claim for release by a

person who contends that his custody violates the Constitution or laws of the

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with Fed. R. App. P. 32.1

To be cited only in accordance with Fed. R. App. P.

32.1Not to be cited per Circuit Rule 53
No. 07-1820 Page 2

United States. Until 1948, when §2255 was enacted, §2241 was the normal means

of obtaining collateral review of federal convictions. Congress did not amend or

repeal §2241 when §2255 was enacted--though paragraph 5 of §2255 makes that

section the exclusive remedy unless “the remedy by motion is inadequate or

ineffective to test the legality of his detention.”

The district court’s other assumption is that the statutory limits on the 

number of actions invoking §2255, and the requirement of appellate approval for

successive motions, also apply to proceedings under §2241. That assumption is

inconsistent with Felker v. Turpin, 518 U.S. 651 (1996), which holds that changes

made by the Antiterrorism and Effective Death Penalty Act of 1996 do not apply to 

proceedings under §2241. See also, e.g., Valona v. United States, 138 F.3d 693 (7th

Cir. 1998).

This is a genuine proceeding under §2241. Collins is in federal custody; the 

action was filed, against his custodian, in the district of custody. It cannot be 

treated as an action under §2255, because only the District of Minnesota may

entertain such an action. Moreover, both the Supreme Court in Felker and this

court in several opinions have held that judges must respect the plaintiff's choice of

statute to invoke--whether §2241, §2255, or 42 U.S.C. §1983--and give the action the 

treatment appropriate under that law. See, e.g., Copus v. Edgerton, 96 F.3d 1038

(7th Cir. 1996).

A motion in a criminal case--whether nominally under Fed. R. Crim. P. 33, or

bearing an ancient title such as coram vobis or audita querela--may be treated as

one under §2255, because the caption on a document does not matter. (Section 2255

authorizes motions “in” the original criminal case.) See, e.g., Melton v. United

States, 359 F.3d 855 (7th Cir. 2004). Castro v. United States, 540 U.S. 375 (2003),

adds that the district judge first must notify the movant of the consequences of this

step and give him an opportunity to withdraw the request. Cf. Gonzalez v. Crosby,

545 U.S. 524 (2005) (motion nominally under Fed. R. Civ. P. 60(b) in an action

seeking collateral relief may be treated as a successive request for collateral relief it

it directly challenges the validity of the conviction or sentence). But §2241 and for

that matter §1983 authorize distinct forms of relief in different courts. Persons who 

initiate independent litigation are entitled to have it resolved under the grant of

authority that has been invoked.

Collins contends that he is entitled to relief under §2241. If, as seems likely,

§2255 offered him one full and fair opportunity to contest his conviction in

Minnesota, then the §2241 action must be dismissed under §2255 ¶5. But if for

some reason §2255 did not offer him an adequate opportunity to test the validity of

his conviction, then the district court must entertain this §2241 action on the 

merits. See In re Davenport, 147 F.3d 605 (7th Cir. 1998).

VACATED AND REMANDED