UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted May 9, 2005*
Decided May 16, 2005
Before
Hon. THOMAS E. FAIRCHILD, Circuit Judge
Hon. RICHARD A. POSNER, Circuit Judge
Hon. MICHAEL S. KANNE, Circuit Judge**
No. 04-3771
Appeal from the United States District
MORRIS T. LEWIS, Court for the Central District of
Plaintiff-Appellant, Illinois
v. No. 04-1158
UNITED STATES PAROLE Michael M. Mihm,
COMMISSION and RICK V. Judge.
VEACH, Warden,**
Defendants-Appellees.
ORDER
For the second time Morris Lewis has filed a petition under 28 U.S.C. § 2241
arguing that he should be released from prison because he is currently serving a
term of imprisonment on a “void” judgment and commitment order. Treating it as a
petition challenging the validity of his conviction, it was partially dismissed for lack
of jurisdiction. Believing that Lewis was also challenging the calculation of his
sentence, the court addressed that argument on the merits and denied the
*
After an examination of 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).
**
Pursuant to Federal Rule of Appellate Procedure 43(c), we have substituted
Rick Veach for Suzanne Hastings as the named respondent.
No. 04-3771 Page 2
remainder of the petition. Lewis now appeals only the dismissal for lack of
jurisdiction.
Lewis incurred two convictions that are relevant to this case, one in the
Northern District of Illinois in February 1980 and one in the Northern District of
Indiana in July 1980. He was sentenced to serve 25 years for the first conviction
and 20 years for the second, which was to run consecutive to the first. Lewis was
paroled in 1989, but he violated his parole and was returned to custody to serve the
balance of his two sentences. (His crimes predated the 1987 Sentencing Reform
Act, which eliminated parole in the federal system). Lewis contends now that he is
entitled to mandatory parole because he served two-thirds of his February 1980
sentence. He argues that the judgment and commitment order for his July 1980
sentence is invalid because it was not signed by the clerk of the court or affixed
with the court’s seal. He contends that he is thus is not required to serve that
sentence at all, or at least not unless the errors in the judgment and commitment
order are corrected.
Lewis made a nearly identical argument in a previous petition. He argued
before that he did not have to serve the July 1980 sentence because the judgment
and commitment order was void and he was thus never properly committed to the
custody of the Attorney General for service of his sentence. The district court
concluded that Lewis’s challenge to the validity of the judgment and commitment
order was a challenge to the validity, not execution, of the sentence, so Lewis had to
bring the argument under 28 U.S.C. § 2255 instead. See Lewis v. Ciolli, No. 03-
1040 at 3 (C.D. Ill. May 21, 2003); see also Thurman v. Gramley, 97 F.3d 185, 187
(7th Cir. 1996) overruled on other grounds by Walker v. O’Brien, 216 F.3d 626 (7th
Cir. 2000). Lewis appealed that court’s decision and we summarily affirmed. See
Lewis v. Hastings, No. 03-2639 (7th Cir. Nov. 12, 2003) (unpublished order).
In this case Lewis is making a very similar argument: that the judgment and
commitment order from his July 1980 conviction is void because it lacked the seal of
the court and the signature of the clerk of the court, which, in his opinion, are
required under 28 U.S.C. § 1691. The district court reached the same conclusion
that it had previously—that Lewis’s attack on the validity of the judgment and
commitment order targets the validity, not execution, of his sentence, and is thus
inappropriate in a § 2241 petition. The district court also generously construed
Lewis’s petition to assert a proper § 2241 argument. Specifically, assuming the
validity of the July 1980 conviction, the United States Parole Commission was
miscalculating his parole date in executing his sentence. Such an argument would
be proper under § 2241 because it challenges the execution of the sentence. See
Clemente v. Allen, 120 F.3d 703, 705 (7th Cir. 1997). We are not convinced that
Lewis ever raised that argument in the district court, but we will not consider the
propriety of the district court’s interpretation because Lewis is certainly not
No. 04-3771 Page 3
challenging the execution of his sentence here. On appeal Lewis’s entire argument
rests on the premise that the judgment and commitment order for the July 1980
conviction is invalid. As the district court and this court have said three times
already, Lewis’s contention that the judgment and commitment order is defective
and unenforceable is an attack on the validity of the sentence, not the execution of
it. Lewis may bring that argument only in a § 2255 petition in the Northern
District of Illinois where he was convicted. We stand by our previous decision that
Lewis’s argument targets the validity of the sentence as the law of the case. See
Peoples v. United States, No. 03-2774, 2005 WL 767062, at *2 (7th Cir. Apr. 6,
2005). We agree with the district court that it lacked jurisdiction to consider the
argument in a § 2241 petition.
Because Lewis has already litigated a § 2255 petition, see United States v.
Lewis, Nos 79-CR-579-3, 94-C-1419, 1994 WL 622182 (N.D. Ill. Nov. 7, 1994), he
must seek permission from this court to litigate a second one, 28 U.S.C. § 2244(b).
He may not circumvent that requirement by repeatedly bringing his argument
under § 2241. We AFFIRM the district court’s dismissal of Lewis’s petition for lack
of jurisdiction. Lewis has not challenged the district court’s denial of the remainder
of his petition.