In the

United States Court of Appeals

For the Seventh Circuit

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No. 03-4053

FRANK MOORE,

Petitioner-Appellant,

v.

KEITH E. OLSON, Warden, United States

Penitentiary, Terre Haute, Indiana,

Respondent-Appellee.

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Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 01 C 9842—Robert W. Gettleman, Judge.

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ARGUED APRIL 2, 2004—DECIDED MAY 17, 2004

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Before EASTERBROOK, MANION, and WILLIAMS, Circuit

Judges.

EASTERBROOK, Circuit Judge. The caption of this opinion

reveals a problem: federal judges are entitled to issue writs

of habeas corpus “within their respective jurisdictions”, 28

U.S.C. §2241(a), and Indiana lies outside the Northern

District of Illinois. When the case began, the respondent

was the Warden of the United States Penitentiary at

Leavenworth, Kansas, which is not even within the Seventh

Circuit. Surprisingly, the district court held that it was
2 No. 03-4053

nevertheless authorized to adjudicate the petition. 284 F.

Supp. 2d 1092 (N.D. Ill. 2003). Almost as surprisingly, the

respondent, having contested jurisdiction vigorously in the

district court, ignored that subject on appeal, apparently

believing that a victory on the merits (the district judge

denied Moore’s petition) was superior to a jurisdictional

dismissal. We raised at oral argument the question whether

a custodian located outside a judicial district is authorized

to consent to a decision on the merits. See Ahrens v. Clark,

335 U.S. 188, 193 (1948) (holding that because the parties’

location is a “jurisdictional” question on collateral review,

a custodian’s waiver or forfeiture is ineffectual). In

post-argument filings, Moore’s custodian switched sides

again, insisting that the district court lacked subject-matter

jurisdiction and that the issue therefore can be neither

waived nor forfeited. We conclude, to the contrary, that

after Braden v. 30th Judicial Circuit Court, 410 U.S. 484

(1973), which overruled Ahrens, the location of a collateral

attack is best understood as a matter of venue, which

means that both waiver and forfeiture are possible.

The Parole Commission revoked Moore’s parole after concluding that he had committed a murder. While an administrative appeal was pending, and Moore was held at the

Metropolitan Correctional Center in Chicago, he filed a

petition under §2241(a). The district court correctly dismissed this petition as premature, for Moore had yet

to exhaust his administrative remedies. By the time the

Commission’s decision became final, Moore was at USP

Leavenworth. Instead of filing a petition in Kansas, however, Moore asked the judge to reopen the proceeding in

Illinois. The judge obliged and held that this maneuver

enabled the court to assert jurisdiction over Moore’s new

custodian. That decision is hard to reconcile with the

principle that the litigation must occur in the district of the

prisoner’s custody. See, e.g., al-Marri v. Rumsfeld, 360 F.3d

707 (7th Cir. 2004). A prisoner transferred while litigation
No. 03-4053 3

is pending need not re-file in the new district, see Ex parte

Endo, 323 U.S. 283 (1944), but no suit was pending when

Moore left Illinois for Kansas. Filing new pleadings in a

long-dismissed action—and naming a different respondent

to boot—does not alter the fact that district judges may

resolve claims under §2241 only when the custodian is local.

Perhaps the old action could have been revived had Moore

remained in Chicago, but an action against a different

custodian is a new action, which should have commenced in

Kansas.

Having prevailed on the merits, however, the Warden of

Leavenworth initially elected not to contest this issue on

appeal. He switched sides in a post-argument memorandum. This is not the only problem linked to the location of

Moore’s custody. The Department of Justice, which both

operates the Federal Bureau of Prisons and represents

the warden, appears to have disregarded Fed. R. App. P.

23(a), which requires judicial approval of transfer during

appellate review of a proceeding seeking a writ of habeas

corpus. Moore has been moved to USP Terre Haute without

any judge’s permission. Counsel also violated Circuit Rule

43, which requires notice to this court that a prisoner has

been moved and substitution of the new custodian. The

Department’s brief and post-argument memorandum both

identify N.L. Conner, the Warden of Leavenworth, as the

respondent even though Moore was transferred to Terre

Haute earlier. Moore has not sought return to Leavenworth,

and no other remedy would be appropriate, but the performance of the Department of Justice in this court is a

disappointment.

Defendants are entitled to waive any shortcomings in

venue or jurisdiction over the person; these issues also may

be forfeited by failure to present them at the proper time.

Defects in subject-matter jurisdiction, however, may not be

waived or forfeited. Courts often use the word “jurisdiction”

when referring to §2241(a)’s requirement—understandably,
4 No. 03-4053

as the word appears in the statute—but without distinguishing among subject-matter jurisdiction, jurisdiction

over the person of the custodian, and the court’s territorial

extent (a species of venue). Ahrens must have assumed that

the issue is one of subject-matter jurisdiction, as it said that

the issue could not be waived, but did not explain why.

Braden overruled Ahrens but did not distinguish between

rejecting its technical holding— which was that the presence of the detained person (in addition to the custodian)

within the territory of the federal judicial district is

essential—and disapproving its assumption that the locus

of the suit concerns subject-matter jurisdiction. In between

these two decisions, Schlanger v. Seamans, 401 U.S. 487,

490-91 (1971), referred to the matter as one of “territorial

jurisdiction”, which implies that the issue is one of venue

rather than either subject-matter or personal jurisdiction,

but once again the Court did not explain why.

Section 2241(a) uses the word “jurisdiction” in a way that

suggests equivalence to “the territory within the judicial

district.” Braden holds that the detained person need not be

in that district. This decision allows a petitioner serving

consecutive sentences (or facing trial in another state) to

challenge his future custody as well as his current custody,

provided that the litigation takes place where the custodian

may be found. We did not need to choose in al-Marri among

the ways to characterize this requirement. Braden suggests,

however, that it is a matter of both jurisdiction over the

person (the custodian must be within reach of the district

court’s process) and venue, with §2241 taken as a special

venue rule superseding 28 U.S.C. §1391(e) to the extent of

any conflict. That is the implication not only of §2241(a) but

also of §2241(d), which provides that, when a prisoner

sentenced within one part of a state that has multiple

federal districts is being held outside that district but still

within that state, the petition may be filed in the district

where the sentence was imposed. Section 2241(d) is so
No. 03-4053 5

clearly a special venue provision that it becomes jarring to

read §2241(a) as a rule of subject-matter jurisdiction; if it

were so read, it would nullify the effect of §2241(d). All of

the subsections make sense, however, if understood to

determine the venue of collateral litigation. The need for

personal jurisdiction over the custodian comes from general

principles outside §2241 itself. Subject-matter jurisdiction,

however, is supplied by 28 U.S.C. §1331, as any claim under

§2241 entails a federal question.

Because the word “jurisdiction” is such a chameleon,

referring (according to context) to the adjudicatory competence of the court, the amenability of the defendant to

process in the district, the territory of the judicial district,

the time at which critical documents (e.g., a claim in bankruptcy) are filed, and many other subjects, it becomes easy

to confuse those jurisdictional issues that a court must raise

on its own with those that the parties may waive or forfeit.

The Supreme Court observed in Kontrick v. Ryan, 124 S. Ct.

906 (2004), and reiterated in Scarborough v. Principi, No.

02-1657 (May 3, 2004), slip op. 9-11, that only the limits of

federal courts’ adjudicatory competence should be sorted

into the subject-matter-jurisdiction bin. If Congress has

authorized federal courts to resolve particular claims, and

if the claim presents a case or controversy within the scope

of Article III, then federal courts have subject-matter

jurisdiction. These conditions are satisfied here: Congress

has authorized the federal judiciary to resolve Moore’s claim

of entitlement to immediate release, and his petition falls

within Article III. Whether that litigation should take place

in Illinois or Kansas is a question of venue, not of subject-matter jurisdiction. Warden Conner, the respondent

when the post-exhaustion litigation began, has not contested service of process and could not do so, as Fed. R. Civ.

P. 4(i)(2)(A) creates national service for federal employees

sued in their official capacities. Thus only venue is at stake,

and the defense of improper venue was forfeited when it
6 No. 03-4053

was omitted from the custodian’s opening brief.

On to the merits. The Parole Commission concluded that

Moore killed Gary Horton, a crime of which he was convicted by a jury in a state prosecution. The state’s appellate

court reversed the conviction after concluding that the

evidence was insufficient to demonstrate guilt. See People

v. Moore, No. 2-99-0564 (Ill. App. 2d Dist. Nov. 28, 2000).

Moore insists that this decision shows that he did not

commit the offense, and thus that his parole cannot be

revoked, but to say that a charge has not been established

beyond a reasonable doubt is not to say that the accused

was innocent. That is why a criminal act may be taken into

account in federal sentencing (for a different offense) even

after a jury has acquitted the defendant. See United States

v. Watts, 519 U.S. 148 (1997). Moore received a federal

hearing, and the Commission concluded by a preponderance

of the evidence (the right standard) that he had murdered

Horton. On review under §2241(a), the only question is

whether some evidence supports the Commission’s decision.

See Kramer v. Jenkins, 803 F.2d 896 (7th Cir. 1986). To this

question the answer is yes.

Moore had been in Horton’s company on the final night of

Horton’s life (so much is common ground), and after a

dispute about drug money Horton ended up dead—shot and

then burned. Etta Bunch, Moore’s companion that evening,

told the police (and testified at Horton’s state trial) that

she, Moore, and Horton spent much of that evening cruising

in Moore’s van. According to Bunch, she was dozing in the

back seat in a drug-induced stupor when she heard two or

three bangs; by the time she was fully alert Horton was

gone. Police recovered two spent cartridges at the place

where Bunch said she had heard the bangs. A cellmate to

whom Moore explained his role in the events testified at the

state trial that Moore had confessed killing Horton. Moore

contends that this evidence was unreliable, and that may

well be. Jailhouse informants do not have sterling track
No. 03-4053 7

records. Moreover, Bunch later changed her story and

insisted that Moore had dropped Horton off at a friend’s

house that evening (an undisputed point) and never again

picked him up (a hotly disputed point). If Bunch’s second

version is correct, then Moore did not kill Horton—at least

not in the way Bunch and the informant described the

events. But this just shows that there was a tough factual

issue for the Commission. It resolved credibility matters

adversely to Moore, and collateral review under §2241 does

not permit the federal judiciary to make an independent

decision. The district judge deemed it significant that the

jailhouse informant related that Horton had been burned

after the shooting, a fact not released to the public. Moore

maintains that knowledge of Horton’s burning could have

reached the informant after Moore discussed discovery

material with a different prisoner, and if so the inference

that Moore confessed to the informant is not as strong, but

the fact remains that there is some evidence that Moore

was the killer. The resulting incarceration is not “punishment for a murder he did not commit,” as Moore would have

it, but insistence that he complete his federal sentence for

armed robbery, the crime from which he had been paroled.

Moore concedes violating the terms of his parole by becoming involved in drugs; the Commission found that he also

had possessed a firearm, a second violation; that the

Commission thought his final tally of transgressions even

longer, and the appropriate response a return to prison

until mandatory release in 2005, is not so obviously unsupported that relief under §2241 is warranted.

AFFIRMED.
8 No. 03-4053

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—5-17-04