In the

United States Court of Appeals

For the Seventh Circuit

No. 01-1847

Chris Jacobs,

Applicant,

v.

Gary R. McCaughtry,

Respondent.

On a Motion for an Order Authorizing the

District Court to Entertain a Second or

Successive Petition for Collateral Review

Submitted April 9, 2001--Decided May 9, 2001

 Before Harlington Wood, Jr., Rovner, and

Evans, Circuit Judges.

 Per Curiam. The district court dismissed

Chris Jacobs’s petition for a writ of

habeas corpus, 28 U.S.C. sec. 2254, on

the ground that it was a second or

successive petition that could not be

filed without prior authorization from

this court. See 28 U.S.C. sec.

2244(b)(3). Before us now is Jacobs’s

application under sec. 2244(b)(3),

seeking such authorization. We dismiss

the application as unnecessary and

instruct the district court to accept

Jacobs’s petition.

 In 1988 Jacobs was charged with five

counts of first degree murder. He was

tried before a jury in October 1989 and

acquitted on all five counts.

Approximately 4 years later, the State,

armed with new evidence, charged Jacobs

again, this time with kidnapping and

false imprisonment. Jacobs moved to

dismiss the new charges on double

jeopardy grounds, but the state courts

denied his motion. Jacobs then filed a

petition for a writ of habeas corpus in

federal district court, arguing that

double jeopardy and/or collateral

estoppel barred prosecution. The district

court denied the petition, and this court

affirmed on appeal. Jacobs v. Marathon

County, Wis., 73 F.3d 164 (7th Cir.
1996).

 In August 1998 Jacobs was convicted

after a jury trial on the kidnapping and

false imprisonment charges. After

exhausting his state remedies, Jacobs

filed a sec. 2254 petition in federal

district court, challenging both his

conviction and his sentence. The district

court concluded that this petition was

second or successive and dismissed for

lack of jurisdiction under 28 U.S.C. sec.

2244(b)(3)(A).

 Jacobs now argues that the petition he

wishes to file is not a second or

successive collateral attack within the

meaning of sec. 2244. We agree. Jacobs’s

first petition is properly classified as

a sec. 2241 petition because it was filed

pretrial and not while he was "in custody

pursuant to judgment of a state court."

See Walker v. O’Brien, 216 F.3d 626, 633

(7th Cir. 2000) (sec. 2254 is the vehicle

for prisoners in custody pursuant to the

judgment of a state court, but not those

in state custody for some other reason,

such as preconviction custody; in the

latter case, sec. 2241 remains

available); see also Santamaria v.

Horsley, 133 F.3d 1242, 1243 (9th Cir.

1998) (reviewing pretrial habeas petition

under sec. 2241); Palmer v. Clarke, 961

F.2d 771, 774 (8th Cir. 1992) (stating

that "federal district courts can

entertain pretrial habeas petitions

[under sec. 2241] in which the petitioner

asserts [that] an impending state trial

violates the Double Jeopardy Clause");

Dickerson v. Louisiana, 816 F.2d 220, 224

(5th Cir. 1987) (holding that inmate’s

pretrial habeas petition was properly

brought under sec. 2241, which applies to

persons in custody regardless of whether

final judgment has been rendered and

regardless of the present status of the

case pending against him). And sec. 2244,

by its terms, does not apply to petitions

brought under sec. 2241. Rather, it

requires permission only before "a second

or successive habeas corpus application

under section 2254" may be commenced. 28

U.S.C. sec. 2244(b)(1), (2) (emphasis

added); see also Valona v. United States,

138 F.3d 693, 694 (7th Cir. 1998) (the

prior-approval mechanism of sec. 2244

does not apply to petitions brought under

sec. 2241). Thus, because Jacobs’s first

collateral attack is not covered under

sec. 2244, the petition he now seeks to
file is not second or successive within

the meaning of that section: it is, in

fact, Jacobs’s first federal challenge to

his conviction and sentence.

 Because the petition Jacobs seeks to

file is not second or successive within

the meaning of sec. 2244, authorization

from this court is unnecessary.

Accordingly, the application for

authorization is DISMISSED. We instruct

the district court to accept filing of

Jacobs’s petition for a writ of habeas

corpus nunc pro tunc to the date he

originally filed the petition. Walker v.

Roth, 133 F.3d 454, 455 (7th Cir. 1997).