Seventh Circuit tries to keep post-conviction attacks in order

Though a small per curiam opinion, the Seventh Circuit in Collins v. US, No. 07-1820 (7th Cir. Dec. 6, 2007) (“published” today and available here), makes many big points for defendants and litigants trying to sort through various avenues for seeking post-conviction relief following a federal conviction and sentence.  Here are snippets:

[B]oth the Supreme Court in Felker and this court in several opinions have held that judges must respect the plaintiff’s choice of statute to invoke — whether §2241, §2255, or 42 U.S.C. §1983 — and give the action the treatment appropriate under that law….

A motion in a criminal case — whether nominally under Fed. R. Crim. P. 33, or bearing an ancient title such as coram vobis or audita querela — may be treated as one under §2255, because the caption on a document does not matter… [though] the district judge first must alert the prisoner to the consequences of this step and give him an opportunity to withdraw the request. But §2241 and for that matter §1983 authorize distinct forms of relief in specific courts.  Persons who initiate independent litigation are entitled to have it resolved under the grant of authority they choose to invoke.

I have long believed that, in the wake of Blakely and Booker, enterprising lawyers (or even law students) can make a nice career out by figuring out (and helping others effective litigate) strategies for bringing appropriate collateral attacks to unlawful (but “final”) federal sentences.  This ruling in Collins, as well as the similar recent ruling from the Second Circuit in Richter concerning the writ of audita querela (details here), confirms my belief.