                        NONPRECEDENTIAL DISPOSITION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



                United States Court of Appeals
                                 For the Seventh Circuit
                                 Chicago, Illinois 60604

                                Submitted April 13, 2017 *
                                 Decided April 13, 2017

                                          Before

                      JOEL M. FLAUM, Circuit Judge

                      ILANA DIAMOND ROVNER, Circuit Judge

                      ANN CLAIRE WILLIAMS, Circuit Judge

No. 16-2431

MICHAEL SHENEMAN,                                  Appeal from the United States
    Plaintiff-Appellant,                           District Court for the Northern District
                                                   of Indiana, South Bend Division.
       v.
                                                   No. 3:13-CV-1155
DAVID P. JONES and NEWBY, LEWIS,
KAMINSKI & JONES, LLP,                             Theresa L. Springmann,
     Defendants-Appellees.                         Chief Judge.


                                        ORDER

       Michael Sheneman sued attorney David Jones and his law firm for malpractice,
invoking the district court’s diversity jurisdiction, see 28 U.S.C. § 1332. In answering
Sheneman’s complaint the defendants disputed the existence of diversity jurisdiction,
but later they asked the district court to dismiss the suit on the merits with prejudice,



       *
        We have agreed to decide this case without oral argument because the briefs
and record adequately present the facts and legal arguments, and oral argument would
not significantly aid the court. See FED. R. APP. P. 34(a)(2)(C).
No. 16-2431                                                                            Page 2

which the court did. On appeal Sheneman challenges the substance of that ruling, but we
conclude that the district court lacked subject-matter jurisdiction over this case.

        Sheneman was convicted of wire fraud in the Northern District of Indiana in 2011.
Jones and his law firm represented Sheneman at trial and on direct appeal. Until he was
sentenced Sheneman had lived his entire life in Indiana, where the fraud occurred. After
we affirmed his convictions, see United States v. Sheneman, 682 F.3d 623 (7th Cir. 2012),
Sheneman filed a collateral attack under 28 U.S.C. § 2255 claiming that Jones was
constitutionally ineffective at trial. While that § 2255 motion was pending, Sheneman
filed this malpractice action in the Northern District of Indiana. He alleged in his
complaint that he is incarcerated at a federal prison in Ohio, that he “has a post-release
residence with his wife” in Michigan, and that the defendants reside in Indiana.
Sheneman attached to his complaint a copy of his request that the Bureau of Prisons
update its records by changing his home address from Indiana to Michigan. The district
court proposed staying the malpractice action until the conclusion of the § 2255 case, a
proposal the defendants endorsed without alerting the district court to their answer
contesting subject-matter jurisdiction. Then after the § 2255 motion had been denied,
Sheneman v. United States, No. 3:12-CV-720 (N.D. Ind. July 8, 2015), the defendants asked
the court to dismiss the malpractice case with prejudice on the ground of issue
preclusion. The court granted that relief.

       In this court Sheneman filed a brief saying nothing about the district court’s
subject-matter jurisdiction. Jones and his law firm, on the other hand, assert in their brief
that Sheneman’s malpractice suit was “based on federal diversity jurisdiction” and that
the parties are diverse. Their brief does not disclose, however, the defendants’ earlier
denial that diversity jurisdiction exists. Skeptical, we asked the parties for memoranda
addressing Sheneman’s citizenship. He responded that he has dissolved his ties to
Indiana and “now identifies as a Michigan citizen.” His wife and mother reside in
Michigan, Sheneman explains, and he intends to live with them in Michigan after his
projected release from prison in October 2018. He adds that his home in Indiana was lost
to foreclosure after his incarceration. The defendants, in their memorandum, disavow
their brief and now assert that they and Sheneman are all citizens of Indiana.

       Diversity jurisdiction turns on citizenship, which means domicile, not residence.
Miss. Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 48 (1989). And establishing domicile
in a particular state requires physical presence while intending to remain there. See id.;
Texas v. Florida, 306 U.S. 398, 424–25 (1939); Denlinger v. Brennan, 87 F.3d 214, 216 (7th Cir.
1996). As Sheneman’s jurisdictional memorandum confirms, he was domiciled in
No. 16-2431                                                                            Page 3

Indiana, not Michigan, when he was incarcerated. Incarceration in a different state does
not alter an inmate’s domicile unless he intends to make the state of incarceration his
home after release. See Bontkowski v. Smith, 305 F.3d 757, 763 (7th Cir. 2002); Singletary v.
Cont’l Ill. Nat’l Bank & Tr. Co., 9 F.3d 1236, 1238 (7th Cir. 1993). Sheneman does not plan to
stay in Ohio, so he has not established domicile there. And neither has he established
domicile in Michigan; his intention to live there cannot confer citizenship without
physical presence. See Denlinger, 87 F.3d at 216. So when he filed this malpractice action,
Sheneman was—and he still is—a citizen of Indiana, the same as Jones and his law
partners. Thus, the district court did not have subject-matter jurisdiction and should
have dismissed the action on that ground rather than proceed to the merits.

       One further observation is warranted. In his memorandum Sheneman asserts that
his complaint alleged “numerous violations” of federal law in addition to his state-law
malpractice claim. That representation is false; Sheneman’s complaint exclusively alleges
malpractice in violation of Indiana tort law and expressly invokes § 1332, the diversity
statute. The complaint does not allege any federal claim.

       The judgment of the district court is VACATED, and the case is REMANDED
with instructions to dismiss Sheneman’s complaint for want of subject-matter
jurisdiction.
