In the
United States Court of Appeals
For the Seventh Circuit
No. 10-3792
U NITED STATES OF A MERICA,
Plaintiff-Appellee,
v.
JOHN M. W YATT,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Illinois.
No. 02-CR-30060-DRH—David R. Herndon, Chief Judge.
On Petition for Rehearing
D ECIDED M ARCH 6, 2012
Before E ASTERBROOK, Chief Judge, and C OFFEY and
R OVNER, Circuit Judges.
Circuit Judge Coffey retired on January 1, 2012, and did not
participate in the decision of this petition for rehearing. The
case is being resolved by a quorum of the panel under 28 U.S.C.
§ 46(d).
2 No. 10-3792
R OVNER, Circuit Judge. John M. Wyatt is caught in a
procedural mess from which we cannot extricate him.
Wyatt was convicted of a drug offense in the Southern
District of Illinois, a court sitting within the Seventh
Circuit. He is incarcerated in the Western District of
Texas, which sits in the Fifth Circuit. The district court
that sentenced him concluded that he was a career
offender under section 4B1.1 of the Sentencing Guide-
lines, based, in part, on an erroneous assumption that
it should treat his prior conviction for a walkaway
escape from a halfway house as a qualifying felony for
the career-offender adjustment. The court did not make
this assumption without cause; that was the law of
this circuit at the time. See United States v. Bryant, 310
F.3d 550, 554 (7th Cir. 2002). With the career offender
finding, Wyatt’s sentencing guidelines range was 262 to
327 months’ imprisonment, and the court sentenced
Wyatt to 262 months. Although it is difficult to discern
from the record as it currently stands what the range
would have been without the career offender finding,
Wyatt’s base offense level for his conviction was 26,
which, combined with his criminal history category of VI
would have resulted in a guidelines range of 120 to
150 months.1
1
Wyatt was convicted of one count of possession with intent
to distribute more than 100 kilograms of marijuana, in viola-
tion of 21 U.S.C. § 841(a)(1). The career offender finding by
itself would have resulted in a sentencing guideline level of 37,
which the sentencing court apparently reduced by three
(continued...)
No. 10-3792 3
We affirmed Wyatt’s conviction and sentence on
direct appeal, rejecting his argument that the walkaway
escape was not a crime of violence under the career
offender guideline. United States v. Wyatt, 133 F.App’x
310, 316 (7th Cir. 2005) (“Wyatt I”). His attorney failed to
file a petition for a writ of certiorari challenging
our affirmance, which, in retrospect, is unfortunate
because the Supreme Court later held in another defen-
dant’s case (as we discuss below) that a walkaway
escape is not a crime of violence.
We also affirmed the district court’s subsequent denial
of Wyatt’s first motion under 28 U.S.C. § 2255. United
States v. Wyatt, 574 F.3d 455 (7th Cir. 2009), cert. denied,
130 S. Ct. 1925 (2010) (“Wyatt II”). In that appeal, Wyatt
argued that he received ineffective assistance of counsel
at trial and in the direct appeal process. He cited his
attorney’s failure to file a petition for a writ of certiorari
challenging his conviction and sentence after we
affirmed the district court’s judgment on direct appeal.
He also complained that his attorney failed to inform
1
(...continued)
levels for acceptance of responsibility. The resulting offense
level of 34, combined with Wyatt’s criminal history category
of VI, resulted in a sentencing guidelines range of 262 to 327
months. If Wyatt had not been sentenced as a career offender,
it is difficult to tell from the record as it stands what enhance-
ments and reductions the court might have applied to his
base level of 26. There is little doubt that the career offender
enhancement significantly raised the guidelines range for Wyatt.
4 No. 10-3792
him before he pled guilty that he could be sentenced as
a career offender based on his walkway escape from a
halfway house. Apart from his ineffective assistance
argument, however, Wyatt did not raise in his section
2255 appeal a stand-alone claim that his escape was
improperly treated as a crime of violence for the
purposes of the career offender guideline. In Wyatt II,
we found that the failure of Wyatt’s attorney to file
a petition for a writ of certiorari in his direct appeal
could not constitute ineffective assistance of counsel
because a defendant has no right to an attorney in seeking
review with the Supreme Court. Wyatt II, 574 F.3d at 459.
While Wyatt’s appeal from the denial of his first
section 2255 motion was pending, he filed a habeas corpus
petition under 28 U.S.C. § 2241 in the Western District of
Texas based on the Supreme Court’s then-recent decision
in Chambers v. United States, 555 U.S. 122 (2009). In Cham-
bers, the Court held that the passive offense of failing
to report to a penal institution was not properly
classified as a violent felony under the Armed Career
Criminal Act (the “ACCA”). The ACCA uses language
identical to that in section 4B1.2 2 of the Sentencing Guide-
lines to define the term “crime of violence,” and we
have therefore analyzed the statute and the guideline in
the same way. See United States v. Womack, 610 F.3d 427,
433 (7th Cir. 2010), cert. denied, 131 S. Ct. 3020 (2011)
2
Section 4B1.1 of the Sentencing Guidelines defines the term
“career offender,” and section 4B1.2 defines the term “crime
of violence” as it is used in section 4B1.1.
No. 10-3792 5
(noting that we “interpret coterminously the ACCA
and the career offender § 4B1.1 provision”). The Court
had also recently decided Begay v. United States, 553
U.S. 137 (2008), where it held that whether a crime is a
violent felony under the ACCA is determined by how
the law defines it and not how an individual offender
might have committed it on a particular occasion.
Based on those two cases, Wyatt asked in his section
2241 petition that his sentence be vacated because the
sentencing court (in the Southern District of Illinois)
had erred in concluding that his conviction for walking
away from a halfway house was a qualifying violent
crime for career offender status under the guidelines.
The district court (in the Western District of Texas) deter-
mined that Wyatt could not bring a section 2241
petition challenging this sentencing error because the
escape hatch of section 2255(e) was not satisfied.3 Wyatt
3
Section 2255(e) provides: “An application for a writ of
habeas corpus in behalf of a prisoner who is authorized to
apply for relief by motion pursuant to this section, shall not
be entertained if it appears that the applicant has failed to
apply for relief, by motion, to the court which sentenced him,
or that such court has denied him relief, unless it also
appears that the remedy by motion is inadequate or inef-
fective to test the legality of his detention.” This provision
is commonly known as the “escape hatch” because it allows
a prisoner to file an application for habeas corpus relief
without first moving for section 2255 relief, and also allows a
prisoner to apply for habeas corpus relief if section 2255 relief
(continued...)
6 No. 10-3792
v. Bragg, No. EP-09-CA-71-DB (W.D. Tex. Mar. 4, 2009).
The Texas court also recharacterized W yatt’s
section 2241 petition as an application to file a succes-
sive section 2255 motion and transferred it to the
Seventh Circuit. Id.
We issued an order transferring the matter to Wyatt’s
pending appeal of his section 2255 action and construing
it as a motion to amend the certificate of appealability.4
Wyatt v. United States, No. 09-1624 (7th Cir. Mar. 13,
2009). Although we characterized the transferred sec-
tion 2241 petition as a request to amend the certificate
of appealability in Wyatt’s appeal of his section 2255
motion, we ultimately did not treat it as such. Instead
we concluded that it was improper for the Texas court
to recharacterize the section 2241 petition, but we
found that it would be pointless to transfer it back to the
Western District of Texas where it had been considered
3
(...continued)
has already been denied, if section 2255 is “inadequate or inef-
fective to test the legality of his detention.”
4
Shortly after we entered this order, Wyatt filed a second
section 2241 petition in the Western District of Texas,
this time challenging his conviction under the Supreme
Court’s then-recent decision in Arizona v. Gant, 556 U.S. 332,
129 S. Ct. 1710 (2009). The district court again found that the
challenge could not be brought in a section 2241 petition,
recharacterized Wyatt’s claim as an application to file a second
or successive section 2255 motion and transferred it to the
Seventh Circuit. We subsequently granted Wyatt’s motion to
dismiss the transferred Gant-based application.
No. 10-3792 7
and dismissed. Wyatt II, 574 F.3d at 460. See also Collins
v. Holinka, 510 F.3d 666, 667 (7th Cir. 2007) (section 2241
is a distinct form of relief in a specific court, and
persons initiating such claims are entitled to have
them resolved under the grant of authority they chose
to invoke). We also noted that no district court within
the Seventh Circuit could entertain Wyatt’s section
2241 claim because the proper venue for such a claim is
the district in which the prisoner is confined. Wyatt II,
574 F.3d at 460.
After we affirmed the denial of Wyatt’s first section
2255 motion, he filed in the Seventh Circuit his first
application for permission to file a second or successive
section 2255 motion, raising a stand-alone Chambers/Begay
issue. See 28 U.S.C. § 2244(b)(3). As we have noted,
Wyatt previously raised this issue in his first section
2255 appeal only in the context of ineffective
assistance of counsel. We denied Wyatt’s application
because Chambers and Begay did not announce constitu-
tional rules but instead interpreted statutory terms.
Wyatt’s application therefore failed to meet the
standard for authorizing a second or successive
section 2255 motion. See Wyatt v. United States, No. 10-
2386 (7th Cir. June 15, 2010).
Wyatt then filed his third section 2241 petition in
the Western District of Texas, this one also based on
Begay and Chambers. As it had done before, the Texas
district court determined that Wyatt could not bring
this claim in a section 2241 petition, and the court
again recharacterized the petition as an application
8 No. 10-3792
to file a second or successive section 2255 motion and
transferred it to the Seventh Circuit. Wyatt v. Bragg,
No. EP-10-CA-237-DB (W.D. Tex. June 29, 2010) (Wyatt III).
We dismissed that transferred matter as duplicative
of Wyatt’s first Seventh Circuit application for a second
or successive section 2255 motion. We noted, however,
that, “under this circuit’s law, Wyatt properly brought
his Begay/Chambers claim under § 2241 in Texas, where
the court has jurisdiction over his custodian.” Wyatt v.
United States, No. 10-2607 (7th Cir. July 12, 2010). See also
Welch v. United States, 604 F.3d 408 (7th Cir. 2010), cert.
denied, 131 S. Ct. 3019 (2011). We noted that the Texas
court disagreed with Welch, finding instead that
section 2255 is not inadequate or ineffective to test
Wyatt’s claim because he is challenging his sentence,
not his conviction. We hinted that Wyatt might still be
able to appeal the decision denying his section 2241
petition. Wyatt apparently followed our suggestion
and filed an appeal in the Fifth Circuit challenging
the denial and transfer of his section 2241 petition.
This tortured history brings us to Wyatt’s latest
attempt to obtain relief from his sentence as a career
offender, a status that he would not be assigned under
current Supreme Court and Seventh Circuit law. On
November 1, 2010, Wyatt filed a Rule 33(a) motion for
a new trial in the Southern District of Illinois, where he
was originally sentenced. Wyatt argued that he was
entitled to a new trial because Chambers and Begay con-
stituted newly discovered evidence of his innocence.
The district court found that Wyatt’s motion was
untimely and that Supreme Court cases do not con-
No. 10-3792 9
stitute evidence. The court then concluded that Wyatt’s
motion was an unauthorized successive collateral attack
on his conviction and the court dismissed the motion
for lack of jurisdiction. On appeal, we affirmed the
district court. We noted that Wyatt had an appeal
pending in the Fifth Circuit related to a prior dismissal
of one of his section 2241 petitions in which he raised
the same Chambers/Begay issue. Again citing our decision
in Welch, we advised Wyatt that this was the proper
vehicle for obtaining relief. See United States v. Wyatt,
No. 10-3792 (7th Cir. April 4, 2011) (“Wyatt IV”) (Order
affirming denial of Rule 33 motion).
Before us now is Wyatt’s Petition for Rehearing in
Wyatt IV as well as his December 22, 2011 request to
convert his Rule 33 motion into an application for a
successive section 2255 motion. Since we last advised
Wyatt that his Fifth Circuit appeal was the proper
avenue of relief, the Fifth Circuit has sidestepped the
substantive question. Wyatt v. Bragg, 422 F.App’x 352
(5th Cir. 2011) (“Wyatt V”). The Fifth Circuit held that
the district court’s transfer order was a nonappealable
interlocutory order and dismissed the appeal for lack
of jurisdiction. See also Wyatt v. Bragg, 2011 WL 1839057
(W.D. Texas May 12, 2011) (construing Wyatt’s latest
petition for habeas relief as a section 2255 claim and dis-
missing it for lack of jurisdiction but not transferring it
to the Seventh Circuit). The Texas district court’s refusal
to consider Wyatt’s section 2241 petitions on the merits
coupled with the recharacterization to applications to
file successive section 2255 motions and repeated trans-
fers to this circuit have resulted in Wyatt’s inability to
10 No. 10-3792
challenge the Texas court’s denial of a section 2241
claim on the merits.
The Supreme Court has held that the first decision
about where a suit belongs is the law of the case, and
that in the usual case another court should not respond
by batting the suit back again. Christianson v. Colt Indus.
Operating Corp., 486 U.S. 800, 816-17 (1988). The Court
also held, though, that a “court has the power to
revisit prior decisions of its own or of a coordinate court
in any circumstance, although as a rule courts should
be loathe to do so in the absence of extraordinary cir-
cumstances such as where the initial decision was
clearly erroneous[.]” Christianson, 486 U.S. at 817. The
initial order of the Western District of Texas transferring
the matter to us was clearly erroneous. See Wyatt II, 574
F.3d at 459-60. We explained in Wyatt II why Wyatt’s
claims cannot be raised in a successive section 2255
motion, why the Western District of Texas is the only
appropriate district, and why a procedurally valid
section 2241 petition (valid because both Wyatt and
his custodian are in the Western District of Texas)
cannot be treated as something else and litigated some-
where else. Wyatt II, 574 F.3d at 460. And, in compliance
with Christianson, we did not transfer that case back to
Texas; we dismissed it. Perhaps the district court in
the Western District of Texas is not aware of our decision.
The most recent transfer order, Wyatt III, does not
mention either Christianson or our decision in Wyatt II.
We cannot directly review the transfer decision, of
course, but we hope our decision today clarifies the
situation for further proceedings in the Western District
of Texas.
No. 10-3792 11
Regardless of where the case proceeds, it is doubtful
that Wyatt has a viable claim for relief on collateral
review at this stage of the proceedings. We now know
from Chambers and Begay that if Wyatt had filed a
petition for a writ of certiorari in his direct appeal, the
Supreme Court likely would have ruled in his favor.
We know from Narvaez v. United States, ___ F.3d ___, 2011
WL 6382106 (7th Cir. Dec. 6, 2011), that if Wyatt had
raised this challenge as a stand-alone issue (instead of as
a challenge to the effectiveness of his counsel) in his
first section 2255 motion in this court, we might have
granted relief. We say “might” because Narvaez was
sentenced under a mandatory guidelines scheme and
Wyatt was sentenced at a time when the district
court was aware the guidelines would be considered
advisory and so we have not yet considered this precise
scenario. A defendant challenging a conviction on col-
lateral review after the Supreme Court narrowed
the statute under which the defendant was convicted
would be entitled to relief under section 2241. In re Daven-
port, 147 F.3d 605 (7th Cir. 1998). In an ACCA case,
a defendant in Wyatt’s circumstances could well be
entitled to relief under section 2241 if he were incar-
cerated in the Seventh Circuit. Welch, 604 F.3d at 415.
But this is not a statutory case or an ACCA case; it is
a sentencing guidelines case, and it does not appear
that, at this stage, Wyatt is entitled to any relief on col-
lateral review in these circumstances. See Welch, 604 F.3d
at 412 n.4 (noting that deviations from the guidelines
generally are not cognizable on a section 2255 motion
and collecting cases). See also Gilbert v. United States, 640
12 No. 10-3792
F.3d 1293, 1323 (11th Cir. 2011) (en banc) (“[T]he savings
clause [of section 2255(e)] does not authorize a federal
prisoner to bring in a [section] 2241 petition a claim,
which would otherwise be barred by [section] 2255(h),
that the sentencing guidelines were misapplied in a way
that resulted in a longer sentence not exceeding the
statutory maximum.”).
We have told Wyatt that section 2255 is not the
proper vehicle for having his claim considered on the
merits. Our denial of leave to file a second or successive
section 2255 is not appealable and the district courts
lack jurisdiction to consider a section 2255 motion by
Wyatt. Therefore, Wyatt will get nowhere filing a
section 2255 motion or an application under section
2244(b) in the Seventh Circuit. See 28 U.S.C. § 2244(b)(3)(E)
(“The grant or denial of an authorization by a court of
appeals to file a second or successive application shall
not be appealable and shall not be the subject of a
petition for rehearing or for a writ of certiorari.”). The
time has expired for Wyatt to file a petition for a writ
of certiorari from Wyatt V, the Fifth Circuit’s dismissal
of Wyatt’s appeal of his third section 2241 petition in
the Western District of Texas.
The instant case, which came to us as a motion for a
new trial, is not the correct vehicle for relief, and so we
deny Wyatt’s Petition for Rehearing. We also deny
his recent request to convert his Rule 33 motion into
an application for a successive section 2255 motion. For
the reasons we stated in Wyatt II, he cannot meet the
standards for a second or successive section 2255 mo-
No. 10-3792 13
tion. The district court in Texas repeatedly has declined
to rule on Wyatt’s section 2241 petitions on the merits,
instead erroneously recharacterizing his petitions as
successive section 2255 claims. And the Fifth Circuit
has held that it has no jurisdiction to review the district
court’s orders transferring Wyatt’s claims to us. See
Wyatt V, 422 F.App’x at 353.
Wyatt would not be sentenced as a career offender
today and likely would receive a substantially lower
sentence; the taxpayer is footing the bill to keep Wyatt
in prison far longer than Congress or the Sentencing
Commission intended, but there is no longer any
judicial procedure to remedy the situation. At this
point, only the executive branch has the authority to
grant Wyatt the relief he seeks. See Herrera v. Collins,
506 U.S. 390, 411-12 (1993) (clemency is the historic
remedy for preventing miscarriages of justice where
judicial process has been exhausted). As matters stand
now, Wyatt’s claims are being batted back and forth
between two circuits with differing views of how (and
perhaps whether) he may be heard on the merits of
his claim. This is an untenable and unseemly waste of
judicial resources. The pending motion and the Petition
for Rehearing are
D ENIED.
3-6-12