In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 06-1056

CORTEZ C. GUYTON,

Petitioner-Appellant,

v.

UNITED STATES OF AMERICA,

Respondent-Appellee.

____________

Appeal from the United States District Court

for the Southern District of Illinois.

No. 99 C 12—William D. Stiehl, Judge.

____________

SUBMITTED FEBRUARY 9, 2006—DECIDED JUNE 30, 2006

____________

Before RIPPLE, KANNE and WOOD, Circuit Judges.

RIPPLE, Circuit Judge. Cortez Guyton is serving a life

sentence for conspiring to distribute powder and crack

cocaine. See 18 U.S.C. §§ 846 & 841(a)(i). We affirmed his

conviction and sentence on direct review. See United States

v. Guyton, No. 94-3924, 1995 WL 364232 (7th Cir. May 16,

1995). Mr. Guyton’s first motion to vacate his sentence, 28

U.S.C. § 2255, was denied as untimely after the district court

refused to apply the mailbox rule to Mr. Guyton’s pleadings. See Guyton v. United States, No. 3:97-cv-370, slip op.

(S.D. Ill. May 23, 1997). Mr. Guyton did not appeal the

district court’s decision denying his initial § 2255 motion.
2 No. 06-1056

Later, in a different case, we adopted the mailbox rule for

pleadings in collateral attacks. See Jones v. Bertrand, 171 F.3d

499, 501-02 (7th Cir. 1999). Since then Mr. Guyton has filed

at least five additional collateral attacks, including three

applications under 28 U.S.C. § 2244(b), each arguing the

impropriety of the district court’s decision denying his first

§ 2255 motion. See Guyton v. United States, 23 F. App’x. 539

(7th Cir. Sept. 26, 2001) (discussing Mr. Guyton’s litigation

history in the context of his appeal from the district

court order dismissing his second motion under § 2255);

Guyton v. United States, No. 05-1135 (7th Cir. Feb. 3, 2005)

(denying Mr. Guyton’s third § 2244(b) application).

Most recently, Mr. Guyton filed a petition for a writ of

error coram nobis, see 28 U.S.C. § 1651(a), in which he again

argued the timeliness of his initial collateral attack. The

district court denied the petition. The district court

patiently—and correctly—explained that, because Mr.

Guyton remains incarcerated on the sentence under attack,

he cannot obtain coram nobis relief. Mr. Guyton appeals.

The Government suggests that we should vacate the

district court’s judgment and should remand the case for

a jurisdictional dismissal. The Government believes that Mr.

Guyton’s petition is an unauthorized successive collateral

attack on his conviction. See Godoski v. United States, 304 F.3d

761, 764 (7th Cir. 2002) (characterizing a coram nobis

petition attacking the petitioner’s conviction on constitutional grounds as a mislabeled § 2255 motion). According to

the Government, because sections 2244(b) and 2255 ¶ 8

strip the district courts of jurisdiction over unauthorized

second or successive collateral attacks, see Nunez v. United

States, 96 F.3d 990, 991 (7th Cir. 1996), the district court

should not have issued a merits ruling and, instead, should

have dismissed the petition for lack of jurisdiction, see
No. 06-1056 3

United States v. Lloyd, 398 F.3d 978, 979 (7th Cir. 2005)

(stating that respondent should seek a remand when a

district court rules on a collateral attack over which it lacked

jurisdiction).

This court’s case law establishes that the substance of

a party’s submission takes precedence over its form. See

Melton v. United States, 359 F.3d 855, 857 (7th Cir. 2004)

(“Call it a motion for a new trial, arrest of judgment,

mandamus, prohibition, coram nobis . . . the name makes no

difference. It is substance that controls.”). Accordingly,

“[a]ny 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.” Id. (emphasis in original); see also

United States v. Scott, 414 F.3d 815 (7th Cir. 2005) (holding

that Scott’s request for his grand jury transcripts was really

a mislabeled § 2255 motion); Benefiel v. Davis, 403 F.3d 825

(7th Cir. 2005) (treating a motion to reopen the original

collateral proceedings that argues constitutional claims as

the equivalent of a fresh collateral attack); Godoski, 304 F.3d

at 764 (determining that a coram nobis petition attacking the

petitioner’s conviction as unconstitutional is really a

mislabeled § 2255 motion); United States v. Evans, 224 F.3d

670 (7th Cir. 2000) (holding that Evans’ motion for a

new trial, which argued a claim governed by § 2255 ¶ 1, is

a collateral attack and, because it is his second, it is subject to ¶ 8).

The contrary is true as well: Claims that do not arise

under § 2255 ¶ 1 are not subject to § 2244(b) and § 2255 ¶ 8.

See Evans, 224 F.3d at 673 (“[P]roceedings that do not meet

the description of § 2255 ¶ 1 are not motions for purposes of

¶ 8, even if they otherwise walk and talk like collateral

attacks.” (emphasis in original)). A claim arises under § 2255

¶ 1 when brought by a federal prisoner attacking his
4 No. 06-1056

sentence on the ground that it resulted from a violation of

his rights under the Constitution. See id. at 673-74.

Mr. Guyton’s coram nobis petition argued that the district

court wrongly denied his first § 2255 motion as untimely

because it erroneously refused to apply the mailbox rule to

his pleadings. That claim does not arise under § 2255 ¶ 1; it

neither attacks his conviction nor alleges a constitutional

violation. Cf. Gonzalez v. Crosby, 125 S. Ct. 2641, 2648 (2005)

(holding that an argument about the timeliness of a § 2255

motion does not arise under ¶ 1 and, thus, is not barred by

¶ 8 and may properly be pursued in a motion under Rule

60(b)). Because Mr. Guyton’s most recent petition does not

attack his conviction, it does not arise under § 2255 ¶ 1 and

§ 2244(b) does not strip the district court of jurisdiction over

the claim.

Nevertheless, as we repeatedly have informed Mr.

Guyton, the time to contest the erroneous denial of his first

§ 2255 motion was within 60 days of the decision. He may

not collaterally attack the decision denying his § 2255

motion through a subsequent motion; his only avenue for

relief was a direct appeal. See Taylor v. Gilkey, 314 F.3d 832,

836 (7th Cir. 2002) (“Once an initial collateral attack has

reached its conclusion, however, a claim of error in the

decision cannot be entertained.”); Bell v. Eastman Kodak

Co., 214 F.3d 798, 801 (7th Cir. 2000). Because Mr. Guyton

did not appeal, the argument is foreclosed. Moreover, the

district court is quite right: A petitioner cannot obtain coram

nobis relief from the conviction and sentence giving rise to

present custody. See Owens v. Boyd, 235 F.3d 356, 360 (7th

Cir. 2000) (“[W]rits in the nature of coram nobis are limited

to former prisoners who seek to escape the collateral civil

consequences of wrongful conviction.”). Accordingly, the

district court judgment is affirmed.

AFFIRMED
No. 06-1056 5

A true Copy:

Teste:

 _____________________________

Clerk of the United States Court of 

Appeals for the Seventh Circuit 

USCA-02-C-0072—6-30-06