Sveum, Michael A. v. Smith, Judy P. ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-1225
MICHAEL A. SVEUM,
Petitioner-Appellant,
v.
JUDY P. SMITH,
Respondent-Appellee.
____________
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 00-C-563-C—Barbara B. Crabb, Chief Judge.
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SUBMITTED FEBRUARY 25, 2005—DECIDED MARCH 31, 2005
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Before POSNER, WOOD, and EVANS, Circuit Judges.
PER CURIAM. The district court denied Michael Sveum’s
habeas corpus petition in December 2000. Four years later,
Sveum filed a motion under Fed. R. Civ. P. 60(b) arguing
that the district court had improperly denied his petition by
not holding an evidentiary hearing on his ineffective
assistance of counsel claim. The district court concluded that
Sveum’s motion was an unauthorized successive collateral
attack, dismissed the motion for lack of jurisdiction, and
later denied Sveum’s motion for reconsideration.
2 No. 05-1225
In deciding whether to grant Sveum’s request for leave
to proceed in forma pauperis on appeal, the district court
struggled with the issue of whether a petitioner who files an
unauthorized collateral attack needs a certificate of ap-
pealability in order to be allowed to appeal. Jones v. Braxton,
392 F.3d 683 (4th Cir. 2004), holds that a district court’s dis-
missal of a motion on the ground that it is an unauthorized
successive collateral attack constitutes a final order within
the scope of 28 U.S.C. § 2253(c), and therefore a certificate of
appealability is required. Id. at 688. We agree. Were this not
the rule, a prisoner could circumvent the certificate require-
ment just by labeling his successive collateral attack a Rule
60(b) motion. Sveum’s Rule 60(b) motion was a mislabeled
habeas corpus petition reasserting his ineffective assistance
of counsel claim. Dunlap v. Litscher, 301 F.3d 873, 875 (7th
Cir. 2002). He must therefore obtain a certificate of appeal-
ability in order to be able to proceed. Jones v. Braxton, supra,392 F.3d at 688. And because this is an unauthorized suc-
cessive collateral attack, Sveum cannot satisfy the criteria for
a certificate of appealability, so we DENY his request for one.
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—3-31-05