NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted March 10, 2010*
Decided March 12, 2010
Before
WILLIAM J. BAUER, Circuit Judge
TERENCE T. EVANS, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 09‐3668
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Eastern District of Wisconsin.
v. No. 07‐CR‐73
CHARLES T. McINTOSH, William C. Griesbach,
Defendant‐Appellant. Judge.
O R D E R
Federal inmate Charles McIntosh pleaded guilty to one count of conspiring to
distribute crack cocaine and was sentenced to 173 months’ imprisonment.1 In July 2009,
*
After examining the briefs and the record, we have concluded that oral argument is
unnecessary. Thus, the appeal is submitted on the briefs and the record. See FED. R. APP. P.
34(a)(2)(C).
1
McIntosh initially was sentenced to 216 months’ imprisonment, but the district court
(continued...)
No. 09‐3668 Page 2
after filing an unsuccessful motion for collateral relief under 28 U.S.C. § 2255, McIntosh filed
a motion captioned as a “Bill of Review Atlas Motion.” The district court denied (rather
than dismiss for lack of subject‐matter jurisdiction) McIntosh’s motion, noting that he had
not raised any issues that could be reviewed at that point in the proceedings and that the
time for filing post‐conviction motions for relief had already passed. McIntosh appeals,
claiming that, under the holding of Hazel‐Atlas Glass Co. v. Hartford‐Empire Co., 322 U.S. 238
(1944), the district court always has authority to set aside or correct a judgment procured
through fraud, which, he contends, was the nature of his motion. Specifically McIntosh
argues, as he did in his earlier § 2255 motion, that the police, with the help of the prosecutor,
submitted fraudulent affidavits and investigation reports to the state magistrate judge in
order to obtain the warrants for his arrest and to search his house. We conclude that the
district court did not have jurisdiction to consider McIntosh’s “Bill of Review Atlas Motion”
because it should have been construed as an unauthorized successive § 2255 motion.
We first recount the procedural background. After his guilty plea, McIntosh never
appealed his conviction or sentence. Instead, he filed his § 2255 motion in December
2007—14 months after the date of judgment—despite prior warnings from the district court
that he must meet the one‐year filing deadline. See 28 U.S.C. § 2255(f). In his motion
McIntosh set forth four grounds for relief: a claim that, in violation of the Fourth
Amendment, police submitted false affidavits to obtain the warrants for his arrest warrant
and to search his house; a claim of prosecutorial misconduct alleging that the prosecutor
conspired with police to knowingly submit false or fraudulent documents to the court; an
insufficient‐evidence claim; and a claim of ineffective assistance of counsel. The district
court denied McIntosh’s motion as untimely, and McIntosh did not appeal that decision
either.
The denial of his § 2255 motion did not, however, stop McIntosh from trying to find
other ways to attack his conviction collaterally. He later filed a motion to dismiss his
conspiracy conviction, alleging that all seven of the counts initially listed in his indictment
(the conspiracy charge plus six drug‐distribution counts) were duplicitous. The district
court denied the motion, explaining that it was not only untimely, but also constituted a
second or successive § 2255 motion for which McIntosh had not obtained permission from
this court to file. See 28 U.S.C. § 2244(b)(3).
1
(...continued)
later granted the parties’ joint motion under 18 U.S.C. § 3582(c)(2) to reduce his sentence to 173
months based on retroactive amendments made to the Sentencing Guidelines relating to crack
cocaine. See U.S.S.G. Supp. to App. C, 226‐31(2009) (Amendment 706).
No. 09‐3668 Page 3
McIntosh’s “Bill of Review Atlas Motion” is his latest attempt to challenge his
conspiracy conviction on the basis of the “fraudulent” warrant application. He invokes the
Hazel‐Atlas case, in which the Supreme Court held that federal courts possess the inherent
power to vacate a judgment obtained by fraud on the court. The government responds that,
while the district court possesses such power in general, § 2244(b)(3) nonetheless constrains
the court to construe the “Bill of Review” as another successive § 2255 motion because it
raises the same claims of fraud as he did in his prior, untimely § 2255 motion.
“[I]t is the substance of the petitioner’s motion that controls how his request for relief
shall be treated.” United States v. Carraway, 478 F.3d 845, 848 (7th Cir. 2007). The substance
of McIntosh’s post‐judgment motion is a request for relief from the underlying criminal
judgment. Such a request, regardless of its caption, requires advance authorization from the
court of appeals where, as here, its substance attacks the constitutional validity of the
criminal judgment on the merits. Gonzalez v. Crosby, 545 U.S. 524 (2005); see also § 2255(h); §
2244(b)(3); Nuñez v. United States, 96 F.3d 990, 991 (7th Cir. 1996). Because he did not obtain
the necessary authorization, the district court lacked jurisdiction to consider his motion. See
Jackson v. United States, 463 F.3d 635, 639‐40 (7th Cir. 2006); United States v. Lloyd, 398 F.3d
978, 980 (7th Cir. 2005). And because the conditions of § 2244(b)(3) have not been met, we
also deny any implied request for permission now.
Therefore, we VACATE the district court’s dismissal and REMAND with
instructions to DISMISS for lack of subject‐matter jurisdiction.