United States v. Jeff Boyd ( 2010 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 09-2067
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
JEFF B OYD ,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 89 CR 908-4—Robert W. Gettleman, Judge.
S UBMITTED O CTOBER 19, 2009—D ECIDED JANUARY 14, 2010
Before P OSNER, R IPPLE, and R OVNER, Circuit Judges.
P OSNER, Circuit Judge. The defendant, Jeff Boyd, was
convicted of a variety of drug-related crimes and sen-
tenced to 50 years in prison. We affirmed, 208 F.3d 638 (7th
Cir. 2000), shortly before the Supreme Court decided
Apprendi v. New Jersey, 530 U.S. 466 (2000). Citing Apprendi,
Boyd petitioned for certiorari, arguing that his sentence
had been increased beyond the limits in the statutory
provisions under which he had been convicted, without
the jury’s having been required to decide whether the
2 No. 09-2067
type or quantity of drugs justified his higher sentence. The
Supreme Court denied Boyd’s petition for certiorari but
in the same order vacated his codefendants’ sentences
and remanded their cases for reconsideration in light
of Apprendi. Boyd v. United States, 531 U.S. 1135 (2001).
Boyd renewed his Apprendi challenge (and added
other contentions) in a motion that he filed in the district
court under 28 U.S.C. § 2255, the federal-prisoner substi-
tute for habeas corpus. The judge denied the motion.
Regarding Apprendi, he said that the failure to submit
issues of drug type and quantity to the jury had been
harmless, given the overwhelming evidence of the scope
of the drug conspiracy. United States v. Boyd, No. 01 C 2086,
2002 WL 1949724, at *4 (N.D. Ill. Aug. 22, 2002). Boyd
then filed a motion under the old Rule 35(a) of the
Federal Rules of Criminal Procedure—the version that
allows for the correction at any time of an illegal sen-
tence imposed for offenses committed before the
effective date of the Sentencing Reform Act (November 1,
1987). This motion advanced the same grounds as Boyd’s
section 2255 motion. The district judge denied the motion
because there was nothing new in it. Boyd appeals that
denial.
Had he captioned his motion a motion under section
2255, it would have had to be denied as a successive
motion not permitted by the statute because it had not
been certified by us, in advance of the filing, as falling
within an exception to the statutory ban on successive
section 2255 motions. 28 U.S.C. § 2255(h); United States v.
Prevatte, 300 F.3d 792, 797 (7th Cir. 2002); Alexander v.
No. 09-2067 3
United States, 121 F.3d 312, 314 (7th Cir. 1997). Recaptioning
doesn’t allow a prisoner to avoid the ban. E.g., Melton v.
United States, 359 F.3d 855, 857 (7th Cir. 2004); see also
Gonzalez v. Crosby, 545 U.S. 524, 530-32 (2005); United
States v. Woods, 169 F.3d 1077, 1079 (7th Cir. 1999); United
States v. Rich, 141 F.3d 550, 553 (5th Cir. 1998). Substance
trumps form; failure to apply that principle would
greatly increase the burden on the federal courts, given
prisoners’ voracious appetite for litigation.
Most of the cases involve captions other than Rule 35(a).
But United States v. Canino, 212 F.3d 383 (7th Cir. 2000), is
explicit that recaptioning a section 2255 motion as a
motion under that rule is unavailing. Canino, however, is
distinguishable from the present case, though only
faintly. The prisoner was trying to use the rule to chal-
lenge his conviction rather than his sentence, and
the rule is limited to correction of illegal sentences. But
the no-recaptioning principle is secure and its logic is
clearly applicable to a case such as this, as United States v.
Rivera, 376 F.3d 86, 92 (2d Cir. 2004), holds. See also United
States v. Bennett, 172 F.3d 952, 953-54 (7th Cir. 1999); United
States v. Little, 392 F.3d 671, 677-79 (4th Cir. 2004). Some-
times the principle that captions don’t control works to the
advantage of the prisoner, as in United States v. Eatinger,
902 F.2d 1383 (9th Cir. 1990) (per curiam), where the
prisoner had sought under Rule 35 relief available only
under section 2255. See also Andrews v. United States,
373 U.S. 334, 337-38 (1963). But not in this case.
Yet Rule 35(a) recaptionings present complexities that
other recaptionings do not, as illustrated by an earlier
4 No. 09-2067
case in our court that might seem (though it is not) incon-
sistent with Canino and Rivera: United States v. Mazak, 789
F.2d 580 (7th Cir. 1986). We held that a Rule 35(a) motion
that seeks to reopen an issue previously decided in the
same litigation can be denied, in accordance with the
doctrine of the law of the case and thus without consider-
ation of its merits, “unless there is some good reason
for reexamining” the previous ruling. Id. at 581. We
based decision on the principles governing relitigation
in postconviction proceedings that had been declared in
Sanders v. United States, 373 U.S. 1, 15-17 (1963), and were
still in force when Mazak was decided in 1986. Sanders
was largely superseded a decade later by the amend-
ment to section 2255 that added what is now (by virtue
of a further amendment) captioned subsection (h). Burris
v. Parke, 95 F.3d 465, 469 (7th Cir. 1996) (en banc);
Unthank v. Jett, 549 F.3d 534, 535 (7th Cir. 2008); Taylor v.
Gilkey, 314 F.3d 832, 836 (7th Cir. 2002); see also 28
U.S.C. § 2244(b). The former Rule 35(a), which remains
in force for prisoners whose offenses predated the Sen-
tencing Reform Act, was not amended. But that makes
no difference. What Boyd labels as a Rule 35(a) motion is,
by virtue of the substance-over-form principle used to
interpret section 2255, a motion under and governed by
section 2255. Mazak remains good law for bona fide
Rule 35(a) motions, because such motions are not
governed by section 2255. United States v. Landrum, 93 F.3d
122, 125 (4th Cir. 1996). But the second motion in this
case was not really a Rule 35(a) motion; it was a section
2255 motion—a wolf in sheep’s clothing.
Not that it is always easy to distinguish a bona fide
Rule 35(a) motion from a section 2255 motion. Section 2255
No. 09-2067 5
can after all be used to challenge a sentence and not just
the conviction that underlies it. E.g., Bifulco v. United
States, 447 U.S. 381, 385-86 (1980); Buchmeier v. United
States, 581 F.3d 561, 563 (7th Cir. 2009) (en banc). But there
is a helpful distinction in the rule’s text: “the court may
correct an illegal sentence at any time and may correct a
sentence imposed in an illegal manner within the time
provided herein for the reduction of sentence.” The “time
provided” is 120 days from the time the sentence
becomes final. Fed. R. Crim. P. 35(b) (1983). For later (“at
any time”) motions, like Boyd’s, the court’s authority is
limited to correcting sentences that are illegal even if
there was no irregularity in the sentencing proceeding; the
court may not “re-examine errors occurring at the trial
or other proceedings prior to the imposition of sentence.”
Hill v. United States, 368 U.S. 424, 430 (1962). The sentence
in Hill was not illegal because “the punishment meted
out was not in excess of that prescribed by the relevant
statutes, multiple terms were not imposed for the same
offense, nor were the terms of the sentence itself legally
or constitutionally invalid in any other respect.” Id. Or
as we put it in United States v. Bennett, 172 F.3d 952 (7th
Cir. 1999), an illegal sentence within the meaning of
Rule 35(a) is not “a judgment that rests on an error”; it is
a sentence “that is ambiguous, inconsistent with the
defendant’s conviction, or otherwise defective.” See also
United States v. Corbitt, 13 F.3d 207, 210-11 n. 6 (7th Cir.
1993); United States v. Montalvo, 581 F.3d 1147, 1153
(9th Cir. 2009).
A potential problem is that section 2255 and Rule 35(a)
overlap. It is unclear whether any challenge to a sen-
6 No. 09-2067
tence under the rule couldn’t also be based on the
statute, which allows a federal prisoner to challenge his
sentence on the ground that it “was imposed in violation
of the Constitution or laws of the United States, or that
the [sentencing] court was without jurisdiction to
impose such sentence, or that the sentence was in excess
of the maximum authorized by law, or that the sentence
was otherwise subject to collateral attack.” 28 U.S.C.
§ 2255(a). Although United States v. Carraway, 478 F.3d
845, 848-49 (7th Cir. 2007), states that “any post-judgment
motion in a criminal proceeding that fits the description
of a motion to vacate, set aside, or correct a sentence set
forth in the first paragraph of section 2255 should be
treated as a section 2255 motion,” echoing Melton v.
United States, supra, 359 F.3d at 857, and United States v.
Evans, 224 F.3d 670, 672 (7th Cir. 2000), none of these
cases involved a Rule 35(a) motion. If “any motion” were
read to encompass every Rule 35(a) motion that could
have been brought under section 2255 instead, this
would be tantamount to repealing the rule’s “at any time”
provision. It is perilous to infer from general language in
a judicial opinion an intention of abolishing all excep-
tions. The prisoner is entitled to have his motion,
however captioned, treated as a Rule 35(a) motion if it is
within the scope of the rule. Cf. Berry v. United States, 435
F.2d 224, 227 and n. 5 (7th Cir. 1970); Marshall v.
United States, 431 F.2d 355, 359 (7th Cir. 1970).
But that can be of no help to Boyd. His motion was
based on Apprendi, and thus on an alleged error that
occurred in the proceedings prior to the imposition of
sentence and so was beyond the reach of a Rule 35(a)
No. 09-2067 7
motion made after 120 days. The district judge was there-
fore right to reject the so-called Rule 35(a) motion—it
was really a successive section 2255 motion.
But as we explained in the Canino case, he should have
dismissed the motion rather than denied it. 212 F.3d at 384.
A district court has no jurisdiction to entertain a suc-
cessive section 2255 motion without the consent of the
court of appeals, here not sought or given—and Boyd’s
second motion was in substance and therefore in law
a section 2255 motion.
The denial of the motion is modified accordingly, and
as modified is
A FFIRMED.
1-14-10