In the
United States Court of Appeals
For the Seventh Circuit

No. 99-1940

Ronald Romandine,

Petitioner-Appellant,

v.

United States of America,

Respondent-Appellee.



Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 97-C-430 (93-CR-185)--C.N. Clevert, Judge.


Argued January 18, 2000--Decided March 14,
2000



  Before Easterbrook, Kanne, and Diane P.
Wood, Circuit Judges.

  Easterbrook, Circuit Judge. Ronald
Romandine is a prisoner of Wisconsin,
serving time for racketeering and theft
offenses. He also has a federal
conviction for credit card fraud. 18
U.S.C. sec.1029(a)(2). The state and
federal offenses are unrelated.
Romandine’s federal sentence, imposed in
January 1994, will commence after his
state sentence ends--or so the sentencing
judge declared. But Romandine contends in
this proceeding under 28 U.S.C. sec.2255
that a federal judge lacks authority to
make a sentence consecutive to a state
sentence that is not in existence when
the federal sentence is imposed. His
petition backfired: the district court
increased Romandine’s sentence by five
months. Romandine’s appeal protests both
the original sentence and the increase.
The chronology is sufficiently complex
and important that we set out the
sequence.

1-24-94: Federal sentence
pronounced: 10 months’ imprisonment,
$30,576.40 restitution, and three
years’ supervised release.
3-11-94: State sentence pronounced:
15 years’ imprisonment, followed by
10 years’ probation.

1-30-95: Romandine files a pro se
motion asking the district judge to
clarify whether federal sentence is
consecutive to or concurrent with
the state sentence.

2-7-95: Chief Judge Evans (as he was
before appointment to this court)
enters an order stating that the
sentences are consecutive.

2-21-95: Romandine files a pro se
"Motion to Reconsider Sentencing" on
the ground that the 15-year state
sentence exceeds the 10-year term
that, Romandine asserts, both sides
in the federal proceedings expected.
Romandine also contends that his
payment of half the ordered
restitution, his wife’s illness, and
his desire to help raise his eight-
year-old child, justify a "grant in
the form of sentence modification"
because "the sentencing court’s
original intent was violated by what
occurred" in state court.

3-17-95: Chief Judge Evans enters an
order denying the motion.

5-2-95: Romandine (represented by
counsel from here on) files another
"motion for clarification" asserting
that "the Court specifically
retained the option of giving the
Defendant consideration of the final
five months of the sentence based on
the future" state sentence.

5-18-95: Order by Chief Judge Evans:
"At the time of sentencing, I
reserved the issue of whether a
’split sentence’ should be imposed,
pending resolution of Mr.
Romandine’s other legal matters in
Oconto County, Wisconsin. Mr.
Romandine has now petitioned for a
clarification of the issue. Based on
the 15 year prison sentence imposed
in the state case on March 11, 1994,
for conduct unrelated to this case,
I have concluded that a split
sentence is appropriate.
Accordingly, IT IS HEREBY ORDERED
that Mr. Romandine’s federal
sentence in this case be modified to
permit him to serve the last five
months of the sentence in a
community confinement setting."

4-14-97: The United States and
Romandine file a "stipulation" that
the sentence imposed on January 24,
1994, has been served. According to
this document the order of March 17,
1995, "was legally in error in so
far as it modified a sentence
previously imposed so that its
service is to be consecutive" and,
as a result, Romandine’s "10 month
sentence of incarceration has been
satisfied by virtue of his
uninterrupted incarceration since"
March 1994.

4-18-97: District Judge Clevert (to
whom the case was reassigned) enters
an order treating the "stipulation"
as a motion to modify the sentence,
which as so construed is denied on
the ground that a district court
lacks authority to modify a sentence
years after its imposition.

4-22-97: Romandine files his
petition under sec.2255, contending
that his federal sentence must be
concurrent to the state sentence
(and hence already has been served)
because a federal judge cannot make
a sentence consecutive to a state
sentence yet to be imposed.

12-30-98: District Judge Clevert
enters an order denying Romandine’s
petition but sua sponte vacating the
judgment of May 18, 1995, and
reinstating the original sentence of
January 24, 1994.

4-8-99: The district judge issues a
certificate of appealability
identifying as the issue for appeal:
"whether a sentencing federal court
may impose a sentence which will run
consecutively to a state sentence
ordered a month after the federal
proceeding."

  Because a certificate of appealability
is essential to a prisoner’s appeal from
an adverse decision in an action under
sec.2255, see 28 U.S.C.
sec.2253(c)(1)(B), Fed. R. App. P.
22(b)(1), we start with the certificate
that Judge Clevert issued. Section
2253(c)(2) provides that a certificate
"may issue under paragraph (1) only if
the applicant has made a substantial
showing of the denial of a constitutional
right." Section 2253(c)(3) adds that the
certificate must "indicate which specific
issue or issues satisfy the showing
required by paragraph (2)." Yet the
certificate issued in this case does not
identify any constitutional issue. A
federal court’s authority to choose
between concurrent and consecutive terms
depends on federal statutes, not on the
Constitution. Compounding matters,
Romandine ignored the certificate of
appealability and briefed two different
issues: whether a district judge may
modify a sentence to make it consecutive
(which supposes, contrary to the premise
of the certificate and the order of
February 7, 1995, that the original
federal sentence ran concurrently to the
state sentence) and whether the district
court was authorized to reinstate the
original straight sentence of
imprisonment. If the United States had
brought these matters to our attention--
either by motion to dismiss the appeal
for want of a proper certificate, or by
motion to strike Romandine’s brief for
its failure to address the only issue the
district judge certified--we would have
been inclined to dismiss the appeal. But
the United States chose to litigate on
Romandine’s terms. Young v. United
States, 124 F.3d 794, 798-99 (7th Cir.
1997), holds that when the district judge
and the parties all disregard
sec.2253(c)(2), and the case is fully
briefed on statutory questions, we will
proceed to decide them: the United States
has forfeited the benefits of sec.2253.

  Another procedural matter poses a
potentially greater hurdle, because
unlike sec.2253(c)(2) it concerns the
district court’s authority to act:
whether the sec.2255 petition must be
treated as a second or successive
collateral attack. If the answer is yes,
then prior approval by this court was es
sential, 28 U.S.C. sec.sec. 2244(b), 2255
para.8, and as approval was neither
sought nor given the district court
lacked subject-matter jurisdiction. See
Nunez v. United States, 96 F.3d 990 (7th
Cir. 1996). Before filing his avowed
sec.2255 petition, Romandine had filed
four earlier requests (one jointly with
the prosecutor) for modification or
"clarification" of his sentence. None of
these stated a legal basis, but a
prisoner can’t file multiple collateral
attacks just by omitting the designation
"sec.2255" from a motion substantively
under that section. United States v.
Woods, 169 F.3d 1077 (7th Cir. 1999),
drives that point home by holding that a
motion nominally under Fed. R. Crim. P.
33 must be treated as a petition under
sec.2255, because it made the arguments
and sought the relief provided by
sec.2255. See also, e.g., Banks v. United
States, 167 F.3d 1082 (7th Cir. 1999).
When a prisoner files a motion under
sec.2255 these days, the district court
swiftly should determine whether it is an
initial motion. Yet the district judge
did not do this, and at oral argument the
Assistant United States Attorney conceded
that it had not occurred to him, either,
to inquire how the prior four post-
judgment motions should be classified.

  It is hard to see what rule or statute
Romandine could have been invoking,
except for sec.2255. He wanted a shorter
sentence, but the Sentencing Reform Act
of 1984 dramatically curtails a district
judge’s power to revise a sentence after
its imposition. Until the 1984 Act (which
took effect on November 1, 1987), Fed. R.
Crim. P. 35 allowed a district judge to
reduce a sentence, for almost any reason,
within 120 days after each of several
events, including the original sentencing
and the completion of the appellate
process. A district judge could have used
this power to reduce Romandine’s sentence
on account of the unexpectedly long term
meted out by the state court. But even
had pre-1984 law continued into the
1990s, that power would have expired long
before Romandine made his first request--
and the 120-day period could not be
extended. See United States v. Addonizio,
442 U.S. 178, 189 (1979); United States
v. Kimberlin, 776 F.2d 1344 (7th Cir.
1985); Gaertner v. United States, 763
F.2d 787 (7th Cir. 1985); Fed. R. Crim.
P. 45(b). With the advent of the
Sentencing Guidelines, moreover, the 120-
day window was closed. Guidelines
sentences are determinate. Today Rule 35
allows only three exceptions. A sentence
may be revised on remand from a court of
appeals when necessary to correct legal
errors (Rule 35(a)); a sentence may be
reduced to reward post-sentencing
substantial assistance to the prosecution
(Rule 35(b)); and a district court,
"acting within 7 days after the
imposition of sentence, may correct a
sentence that was imposed as a result of
arithmetical, technical, or other clear
error." Rule 35(c). Romandine thus could
not seek a lower sentence under Rule 35.
It is tempting, therefore, to say that
Romandine’s requests must have been under
sec.2255, because they could not have
been under anything else.

  Still, that Romandine’s requests could
not have been based on anything in the
Rules of Criminal Procedure does not show
that they did rest on sec.2255. Maybe
they were just hot air. A motion
imploring the judge to disregard Rule 35
and the Sentencing Guidelines, and to
reduce the sentence for no reason other
than that the defendant prefers a short
sentence to a long one, does not rest on
any body of law. Section 2255 para.1
authorizes a motion by a person "claiming
the right to be released upon the ground
that the sentence was imposed in
violation of the Constitution or laws of
the United States, or that the court was
without jurisdiction to impose such
sentence, or that the sentence was in
excess of the maximum authorized by law,
or is otherwise subject to collateral
attack". Did any of Romandine’s four
requests come within this language?
Certainly not the first, which asked the
judge to clarify Romandine’s
understanding of the sentence but did not
seek its alteration. The next two
requested lower sentences, but not on any
of the grounds mentioned in sec.2255. The
"motion for reconsideration" filed on
February 21, 1995, came the closest. As
in Addonizio, a prisoner implored a judge
to reduce a sentence on the theory that
subsequent developments had defeated the
judge’s expectations about how long the
defendant would remain in prison.
Addonizio brought his motion under
sec.2255, but the Supreme Court held that
sec.2255 did not authorize any such
theory of relief. Doubtless a prisoner’s
collateral attack may fall under sec.2255
even though not based on a good theory--
indeed, even though the Supreme Court
rejected the theory before the petition
was filed--but the problem in both
Addonizio and Romandine’s case is that
when a defendant requests a break because
of events after the judgment that affect
the judge’s "expectations," it is
impossible to characterize the request as
a collateral attack on the judgment. It
is, Addonizio held, just wishful
thinking. That is also a fair description
of Romandine’s filings in February and
May 1995. The district court should have
rejected them out of hand, and perhaps
would have done so had the United States
reminded it of Addonizio and Rule 35’s
time limits. But the United States did
not respond to Romandine’s first three
requests, did not move for
reconsideration or take an appeal after
the district judge altered the sentence
in response to the third request, and was
complicit in the fourth. That
"stipulation" nominally sought
modification of the sentence (oddly, of
the original 10-month straight sentence,
rather than the split sentence imposed by
the May 1995 order) but actually
requested not a modification of the
judgment but a declaration that the
sentence had been served. Section 2255
does not provide for such declarations--
and this turns out to be an additional
wrinkle affecting application of the
successive-petition rule.

  Even if it were best to understand one
of Romandine’s first four requests as a
collateral attack on his sentence, we
would be reluctant to dismiss his latest
petition--because we very much doubt that
Romandine’s current petition is based on
sec.2255. He did not seek a change or
reduction in the sentence so much as he
sought a declaration that he has
completed its service. In other words,
Romandine wants time already spent in
state custody credited against his
federal sentence. Requests for sentence
credit, or for recalculation of time yet
to serve, do not come under sec.2255.
They must be presented to the Attorney
General (or her delegate, the Bureau of
Prisons), and adverse decisions may be
reviewed by an action under 28 U.S.C.
sec.2241, or perhaps a suit under the
Administrative Procedure Act (to the
extent 28 U.S.C. sec.3625 permits). See
Reno v. Koray, 515 U.S. 50 (1995); United
States v. Wilson, 503 U.S. 329 (1992);
cf. Valona v. United States Parole
Commission, 165 F.3d 508 (7th Cir. 1998).
Recent limitations on successive motions
do not apply to sec.2241 or the apa. See
Felker v. Turpin, 518 U.S. 651 (1996);
Valona v. United States, 138 F.3d 693
(7th Cir. 1998). The United States failed
to point this out to the district court,
which forfeits any opportunity to obtain
dismissal for failure to exhaust
administrative remedies. Nor did the
United States say that the action should
be dismissed for failure to name the
proper respondent (the Attorney General).

  We are conscious that these efforts to
determine the right characterization of
various filings are in tension with the
principle that district courts should
treat prisoners’ papers as what they
purport to be, rather than converting
suits from one kind to another--from
sec.2241 to sec.2255, or from sec.1983
damages actions to collateral attacks.
See Valona v. United States, 138 F.3d 693
(7th Cir. 1998); Moore v. Pemberton, 110
F.3d 22 (7th Cir. 1997); Copus v.
Edgerton, 96 F.3d 1038 (7th Cir. 1996).
Like other circuits, e.g., United States
v. Miller, 197 F.3d 644 (3d Cir. 1999);
Adams v. United States, 155 F.3d 582 (2d
Cir. 1998), we have recognized that
converting a case from one kind of action
to another can have consequences that the
prisoner may not have anticipated.
Reclassifying an action for civil damages
as a collateral attack may bring the
prohibition of successive petitions into
play; the opposite conversion may require
the prisoner’s trust account to be tapped
for filing fees and lead to problems
under Heck v. Humphrey, 512 U.S. 477
(1994). But there is no alternative to
examining the substance of a pleading if
the successive-petitions rule is to be
enforced. See Johnson v. United States,
196 F.3d 802 (7th Cir. 1999) (describing
many kinds of recharacterization). None
of Romandine’s filings has been converted
procedurally. What we have done--what is
essential under sec.sec. 2244(b) and 2255
para.8--is to ask whether two or more of
Romandine’s filings meet the description
of sec.2255 para.1. The answer is no, so
the current filing is not
jurisdictionally precluded by Romandine’s
failure to seek prior appellate leave.
Thus we proceed to the merits.

  Judge Clevert was entirely right to
conclude that the sentence reduction of
May 18, 1995, was unlawful. It would have
been unlawful before the Sentencing
Reform Act, for reasons given in
Addonizio, Kimberlin, and Gaertner. Under
current law, the district judge has even
less discretion. The judge’s apparent
belief that he could retain control over
the sentence indefinitely just by
announcing at sentencing that he reserves
the right to alter it cannot be
reconciled with Fed. R. Crim. P. 45(b),
which forbids the extension of the time
limits in Rule 35. Seven days after
Romandine’s sentence was imposed was the
limit of the district judge’s alteration
power--and then he could modify the
sentence only to "correct a sentence that
was imposed as a result of arithmetical,
technical, or other clear error", none of
which occurred in Romandine’s case. (Rule
36 permits a district court to correct
clerical errors at any time, but no one
thinks that either the original sentence
or the modification in May 1995 was a
"clerical mistake.")

  For the same reason that the sentence
reduction of May 18, 1995, was unlawful,
the sentence increase of December 30,
1998, was unlawful. Under the version of
Rule 35(a) that preceded the Sentencing
Reform Act, a district judge could
"correct an illegal sentence at any
time". District judges no longer possess
that power. Today an illegal sentence may
be corrected only if the aggrieved party
appeals and the court of appeals remands
for that purpose under Rule 35(a), or if
the error is so grave that relief becomes
available under sec.2255. The United
States could have taken an appeal from
the order of May 18, 1995, and had this
been done we would have reversed for
reasons that by now are obvious. But the
United States did not appeal, or even ask
the district court to reconsider its
decision. At oral argument, the Assistant
United States Attorney (who has handled
Romandine’s case since the indictment in
1993) revealed that his office did not
notify the Criminal Division; apparently
prosecutors in the Eastern District of
Wisconsin are under the misapprehension
that the Criminal Division (and thus the
Solicitor General) need not be alerted to
an adverse decision unless the United
States Attorney wants to appeal. Proper
implementation of the Department of
Justice’s rules, see 28 C.F.R.
sec.0.20(b); United States Attorneys’
Manual sec.2-2.110, might have avoided
the problem now presented. But the past
cannot be rewritten. When the time for
appeal expired, so did any possibility of
correcting the error.
  Well, then, has the sentence expired
along with the time to appeal?
Romandine’s premise is that a district
judge may not impose a sentence that will
run consecutively to a state sentence not
then in existence. This supposes that the
effective sentence is the one pronounced
on January 24, 1994. But that is not so;
Romandine was resentenced on May 18,
1995, and again in December 1998, well
after the state sentence. Our order
vacating the 1998 sentence restores the
1995 sentence, which responds directly to
the state sentence. Romandine concedes
that a federal sentence may run
consecutively to a state sentence already
in existence, so he has no complaint.

  Romandine’s concession is sound. "[I]f
a term of imprisonment is imposed on a
defendant who is already subject to an
undischarged term of imprisonment, the
terms may run concurrently or
consecutively". 18 U.S.C. sec.3584(a). By
the time of his resentencing in May 1995,
Romandine was "already subject to an
undischarged term of imprisonment". Even
if we were to treat the sentence of
January 1994 as the one now in effect,
however, Romandine would have nothing to
gain. Neither sec.3584(a) nor any other
statute of which we are aware authorizes
a federal judge to declare that his
sentence must run consecutively to some
sentence that may be imposed in the
future. Thus the orders of February 7,
1995, and March 17, 1995, have no
discernible source of legal support (and
the orders themselves cite none). But
sentences may well run consecutively by
force of law; indeed, the subject may
simply be out of the judge’s hands. The
final sentence of sec.3584(a) reads:
"Multiple terms of imprisonment imposed
at different times run consecutively
unless the court orders that the terms
are to run concurrently." A judge cannot
make his sentence concurrent to
nonexistent sentences that some other
tribunal may or may not impose; thus the
sentence is automatically consecutive.

  The next judge in line may make service
concurrent in practical effect. For
example, the state judge could have given
Romandine a discount of 10 months on
account of his undischarged federal
sentence. Likewise the Attorney General
could make the federal sentence run
concurrently by designating the state
prison as a place of federal confinement,
so that the clock would start to tick on
the federal sentence. "A sentence to a
term of imprisonment commences on the
date the defendant is received in custody
. . . [at] the official detention
facility at which the sentence is to be
served." 18 U.S.C. sec.3585(a). All the
Attorney General has to do is designate
the state prison as "the official
detention facility at which the sentence
is to be served." See 18 U.S.C.
sec.3621(b); United States v. Hill, 48
F.3d 228, 234 (7th Cir. 1995). By
refusing to make this designation, and by
instead lodging a detainer with state
officials, the Attorney General can
ensure consecutive service (although the
Attorney General could not prevent the
state from releasing its prisoner early
because of the state’s anticipation that
federal time lay ahead). A legal error
one way or the other in the exercise of
this power could be reviewed under
sec.2241. But Romandine, who has never
asked the Attorney General to designate
the state prison as a place of federal
confinement, is not well situated to
protest--and we do not perceive any legal
rule that would require the Attorney
General to act favorably on such a
request. If the Attorney General shares
the view expressed by an Assistant United
States Attorney in the "stipulation" of
April 14, 1997, then she is free to
declare that Romandine’s federal time has
been served or to instruct the Director
of the Bureau of Prisons to file a motion
under sec.3582(c); but the United States
Attorney’s Office apparently thinks the
"stipulation" a blunder, for its brief on
this appeal disavows the position it took
in 1997.

  Other courts of appeals are divided on
the question whether a district court may
require its sentence to be served
consecutively to a state sentence that
will be imposed in the future. See United
States v. Brown, 920 F.2d 1212, 1217 (5th
Cir. 1991) (yes); United States v.
Quintero, 157 F.3d 1038 (6th Cir. 1998)
(no); United States v. Clayton, 927 F.2d
491 (9th Cir. 1991) (no); United States
v. Williams, 46 F.3d 57 (10th Cir. 1995)
(yes); United States v. Ballard, 6 F.3d
1502, 1510 (11th Cir. 1993) (yes). We
join the circuits that answer "no,"
because sec.3584(a) allows the district
judge to specify the sequence of service
only when sentences are imposed at the
same time, or the other sentence is "an
undischarged term of imprisonment" to
which the defendant is "already subject".
But the answer does not matter, and the
conflict is illusory, for reasons we have
given: the final sentence of sec.3584(a)
makes the federal sentence presumptively
consecutive in all unprovided-for cases,
and the effective decision then is made
by the Attorney General (or the state
judge) rather than the federal judge. We
disagree with the reasoning of McCarthy
v. Doe, 146 F.3d 118, 121-22 (2d Cir.
1998), to the extent the second circuit
believes that the final sentence of
sec.3584(a) is limited to those
situations also covered by the first
sentence (that is, to defendants serving
undischarged terms, or other terms
imposed on the same occasion). Limiting
the final sentence in this way makes it
surplusage. It is best read as covering
all situations not otherwise provided
for. Still, even this disagreement is
irrelevant, for the state judge and the
Attorney General, exercising power under
sec.3585(a), have the effective last
word. Thus we agree with McCarthy’s
bottom line. The Attorney General has
discretion, which she must exercise
without supposing that the district
judge’s views or the final sentence of
sec.3585(a) forbid concurrent service.
Accord, Barden v. Keohane, 921 F.2d 476
(3d Cir. 1990). Romandine must serve his
federal sentence after his state sentence
ends, unless he can persuade the Attorney
General to start the federal clock while
he is still in state custody.

Vacated and Remanded for Restoration
of the May 1995 Sentence
