                          NONPRECEDENTIAL DISPOSITION
                   To be cited only in accordance with Fed. R. App. P. 32.1



                  United
                   To be citedStates       Court
                               only in accordance      of R.Appeals
                                                  with Fed.  App. P.
                          32.1Not to be cited per Circuit Rule 53
                                 For the Seventh Circuit
                                 Chicago, Illinois 60604
                                    December 6, 2007


                                          Before

                     Hon. FRANK H. EASTERBROOK, Chief Judge

                     Hon. WILLIAM J. BAUER, Circuit Judge

                     Hon. DANIEL A. MANION, Circuit Judge




No. 07-1820
                                                           Appeal from the United
BOBBY MARVIN COLLINS,                                      States District Court for the
     Petitioner-Appellant,                                 Western District of
                                                           Wisconsin.
             v.
                                                           No. 07 C 130
UNITED STATES OF AMERICA,                                  Barbara B. Crabb,
     Respondent-Appellee.                                  Chief Judge.




                                           Order

       Bobby Collins, an inmate of the Federal Correctional Institution in Oxford,
Wisconsin, filed in the Western District of Wisconsin a petition for a writ of habeas
corpus under 28 U.S.C. §2241. The district court concluded that this petition should
have been filed under 28 U.S.C. §2255, because it challenges the validity of
petitioner’s conviction, and dismissed it (rather than transferring it to the District
of Minnesota, the right venue under §2255) because Collins has already filed and
lost under §2255.

       Two assumptions appear to lie behind this ruling. One is that §2241 deals
only with conditions of confinement and cannot be used to contest a conviction’s
validity. That is incorrect; §2241 by its terms covers any claim for release by a
person who contends that his custody violates the Constitution or laws of the
No. 07-1820                                                                Page 2


United States. Until 1948, when §2255 was enacted, §2241 was the normal means
of obtaining collateral review of federal convictions. Congress did not amend or
repeal §2241 when §2255 was enacted--though paragraph 5 of §2255 makes that
section the exclusive remedy unless “the remedy by motion is inadequate or
ineffective to test the legality of his detention.”

       The district court’s other assumption is that the statutory limits on the
number of actions invoking §2255, and the requirement of appellate approval for
successive motions, also apply to proceedings under §2241. That assumption is
inconsistent with Felker v. Turpin, 518 U.S. 651 (1996), which holds that changes
made by the Antiterrorism and Effective Death Penalty Act of 1996 do not apply to
proceedings under §2241. See also, e.g., Valona v. United States, 138 F.3d 693 (7th
Cir. 1998).

       This is a genuine proceeding under §2241. Collins is in federal custody; the
action was filed, against his custodian, in the district of custody. It cannot be
treated as an action under §2255, because only the District of Minnesota may
entertain such an action. Moreover, both 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. See, e.g., Copus v. Edgerton, 96 F.3d 1038
(7th Cir. 1996).

       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. (Section 2255
authorizes motions “in” the original criminal case.) See, e.g., Melton v. United
States, 359 F.3d 855 (7th Cir. 2004). Castro v. United States, 540 U.S. 375 (2003),
adds that the district judge first must notify the movant of the consequences of this
step and give him an opportunity to withdraw the request. Cf. Gonzalez v. Crosby,
545 U.S. 524 (2005) (motion nominally under Fed. R. Civ. P. 60(b) in an action
seeking collateral relief may be treated as a successive request for collateral relief it
it directly challenges the validity of the conviction or sentence). But §2241 and for
that matter §1983 authorize distinct forms of relief in different courts. Persons who
initiate independent litigation are entitled to have it resolved under the grant of
authority that has been invoked.

       Collins contends that he is entitled to relief under §2241. If, as seems likely,
§2255 offered him one full and fair opportunity to contest his conviction in
Minnesota, then the §2241 action must be dismissed under §2255 ¶5. But if for
some reason §2255 did not offer him an adequate opportunity to test the validity of
his conviction, then the district court must entertain this §2241 action on the
merits. See In re Davenport, 147 F.3d 605 (7th Cir. 1998).

                                                               VACATED AND REMANDED
