# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted March 13, 2019 *

Decided March 13, 2019

Before

MICHAEL B. BRENNAN, Circuit Judge

MICHAEL Y. SCUDDER, Circuit Judge

AMY J. ST. EVE, Circuit Judge

No. 18

‐ 2427

UNITED STATES OF AMERICA,

Plaintiff

‐ Appellee

,

v

.

FAIRLY EARLS,

Defendant

‐ Appellant

. Appeal from the United States

District Court for Northern District of

Indiana, Hammond Division.

No. 2:10

‐ CR

‐ 222 JVB

J oseph S. Van Bokkelen,

J udge

.

O R D E R

Fairly Earls was convicted in the Northern District of Indiana of lying in a

passport application, aggravated identity fraud, and identity theft, 18 U.S.C. § 1542,

§ 1028A(a)(1), § 1028(a)(2), and sentenced to 60 months’ imprisonment. While serving

his sentence, Earls was transferred from federal prison to Wisconsin state custody and

tried for first

‐ degree sexual assault of a child and bail jumping. He was convicted and

sentenced to a total of 90 years’ imprisonment, and he is currently incarcerated in

* We have agreed to decide the case without oral argument because the briefs and

record adequately present the facts and legal arguments, and oral argument would not

significantly aid the court. F ED

. R. A PP

. P. 34(a)(2)(C). NONPRECEDENTIAL DISPOSITION

To be cited onl y in accordance with Fed. R. A pp

. P. 32.1No. 18

‐ 2427 Page 2

Wisconsin state prison. Seeking a declaration that he has now completed his federal

sentence, he filed a “Motion Pursuant to Federal Rule 60(b)(5)” in his criminal case in

the Northern District of Indiana. The district court properly denied Earls any relief, but

we conclude that it should have construed the request as a petition under 28 U.S.C.

§ 2241 and dismissed it.

After five years total in federal and state prison, Earls requested a letter from the

Federal Bureau of Prisons declaring that he had completed his federal sentence. In

response, the Bureau contacted the district court to ask if it had intended Earls’s federal

sentence to run “concurrently” with the state sentence that was imposed years later.

The court answered the Bureau by issuing an order stating that, because it “did not

order the sentence to be served concurrently with anticipated state court sentence, the

default provision of [18 U.S.C.] § 3584 applies and the federal court sentences runs

consecutively to the state court sentences.” Earls appealed the order to this court.

We dismissed that appeal for lack of jurisdiction because the district court’s

order was not an appealable decision; it was just a response to the Bureau of Prisons.

United States v. Earls

, No. 15

‐ 3651 (7th Cir. Apr. 6, 2016). We stated that Earls’s proper

course was to exhaust his administrative remedies, and if unsuccessful, petition the

federal court for review under 28 U.S.C. § 2241. Id. (citing Romandine v. United States

,

206 F.3d 731, 736 (7th Cir. 2000); Barden v. Keohane

, 921 F.2d 476, 479 (3d Cir. 1990)).

Instead, Earls filed a “Motion Pursuant to Civil Rule 60(b)(5),” asking the district

court for an order that he had “satisfied” the judgment—a declaration that he had

completed his federal sentence. The court denied the motion because, it reasoned, it had

no authority under the Federal Rules of Civil Procedure to grant the relief sought. This

appeal followed.

The district court was undoubtedly correct that Federal Rule of Civil Procedure

60, like all the civil rules, does not apply in criminal cases. See F ED

. R. C IV

. P. 1. But, in

situations like this, when there is no civil proceeding underway, a court should examine

the substance, not just the label, of the pro se filing, and if it calls out for post

‐ conviction

relief, construe it as a collateral attack under the appropriate statute—28 U.S.C. § 2255

or § 2241. See Castro v. United States

, 540 U.S. 375, 381–83 (2003); Melton v. United States

,

359 F.3d 855, 857–58 (7th Cir. 2004).

Here, it would be inappropriate to construe Earls’s filing as a § 2255 motion

because it is not challenging the validity of his sentence or seeking to have it vacated.No. 18

‐ 2427 Page 3

Romandine

, 206 F.3d at 736. Rather, Earls wants time he served in state custody credited

against his federal sentence, and such “[r]equests for sentence credit, or for recalculation

of time yet to serve

... must be presented to the Attorney General (or [his] delegate, the

Bureau of Prisons), and adverse decisions may be reviewed by an action under

28 U.S.C. § 2241.” Id. As we stated in Earls’s last appeal, a § 2241 petition (after he has

exhausted his administrative remedies) is the only avenue for the type of relief Earls

wants. Thus, the district court should have reclassified Earls’s motion. See Setser

v. United States

, 566 U.S. 231, 244 (2012); Romandine

, 206 F.3d at 736.

But the district court could not have granted relief, or even evaluated the merits

of Earls’s petition, because he filed it in the wrong court. A § 2241 petition must be filed

in the judicial district that contains the prisoner’s place of confinement. 28 U.S.C.

§ 2241(a); e.g.

, al

‐ Marri v. Rumsfeld

, 360 F.3d 707, 709–10, 712 (7th Cir. 2004). Earls is

incarcerated in Portage, Wisconsin, located in the Eastern District of Wisconsin. The

federal district court there is the proper venue for Earls’s petition.

Accordingly, we VACATE and REMAND to the district court with instructions

to dismiss the petition without prejudice.