                      NONPRECEDENTIAL DISPOSITION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 September 20, 2007*
                             Decided October 12, 2007

                                        Before

                    Hon. ILANA DIAMOND ROVNER, Circuit Judge

                    Hon. DIANE P. WOOD, Circuit Judge

                    Hon. ANN CLAIRE WILLIAMS, Circuit Judge

No. 07-1057

MICHAEL V. WILKINS, SR.,                         Appeal from the United States District
             Petitioner-Appellant,               Court for the Northern District of
                                                 Illinois, Eastern Division
              v.
                                                 No. 01 C 7181
LISA MADIGAN, et al.,
           Respondents-Appellees.                Samuel Der-Yeghiayan,
                                                 Judge.

                                      ORDER

       Michael Wilkins challenges the requirement that his name remain on the
Illinois Sex Offender Registry. He contends that requiring him to remain registered as
a sex offender violates the Ex Post Facto clause of the Constitution. Wilkins also argues
that he was denied the effective assistance of counsel during the proceedings in the
district court. We dismiss the action for lack of jurisdiction.


      *
       After an examination of the briefs and the record, we have concluded that oral
argument is unnecessary. Thus the appeal is submitted on the briefs and the record.
See FED. R. APP. P. 34(a)(2).
No. 07-1057                                                                        Page 2

       The present dispute has its origins in a sentence that Wilkins has now fully
served . In June 1991 Wilkins pleaded guilty to third-degree rape in Kentucky and was
sentenced to four months’ house arrest and two years’ probation. After he served his
sentence and moved to Illinois, Wilkins’s name was added to the Sex Offender
Registry. See 730 ILCS 150/7. His tenure on the registry would have expired in June
2001, but, by his own admission, Wilkins “was a few days late” in his “recent
registration”; the state accordingly extended his registration for an additional ten
years. See 730 ILCS 150/7 (“The Director of State Police, consistent with
administrative rules, shall extend for 10 years the registration period of any sex
offender, as defined in Section 2 of this Act, who fails to comply with the provisions of
this Article.”). In September 2001 Wilkins challenged the lengthened registration term
in what he labeled a petition for a writ of habeas corpus under 28 U.S.C. § 2241.
Wilkins also filed a motion for appointment of counsel. The district court granted that
motion in December 2001.

       At that point, matters became confused in the district court. In June 2003, at a
time when Wilkins was not in prison, Wilkins’s appointed lawyer moved to withdraw
from the case. The district court granted that motion and stated that it would recruit
new counsel. In August 2003 the case was transferred to a different district judge. But
replacement counsel had not been appointed, and when the new judge held a status
hearing in May 2004, neither party appeared. The judge therefore dismissed the action
without prejudice for want of prosecution. See N.D. Ill. Loc. R. 41.1. In March 2005
Wilkins, who as of May 2004 was incarcerated on a separate charge, informed the court
in a written submission that he had been unaware of the dismissal. Evidently not
realizing that he was unrepresented at the time of the dismissal, Wilkins faulted his
attorney for failing to appear at the status hearing. He did not ask the judge to
reinstate the case, however, until November 2006, when he moved to reinstate his
lawsuit on the ground of his lawyer’s failings. The district court construed Wilkins’s
motion as one seeking relief from judgment under FED. R. CIV. P. 60(b)(6), but the court
noted that Wilkins provided no explanation for the eighteen-month delay in requesting
relief and no justification for reopening the judgment. The district court therefore
denied the motion. Wilkins timely filed his notice of appeal.

       We first assess federal jurisdiction. Wilkins’s claim is that the state violated the
Ex Post Facto clause by extending his period for registering on the sex offender
registry. But the statute that Wilkins invokes, 28 U.S.C. § 2241, requires that a
petitioner be in custody under the sentence giving rise to his claimed injury at the time
he filed suit, in order for federal jurisdiction to exist. See Samirah v. O'Connell, 335
F.3d 545, 549 (7th Cir. 2003). Wilkins was not “in custody” under the rape charge
(which gives rise to the challenged registration requirement) when he filed this suit.
The district court therefore did not have jurisdiction and should promptly have
dismissed the action on that ground. See id.
No. 07-1057                                                                      Page 3

       We recognize, as does the state, that Wilkins’s claim may be cognizable under
42 U.S.C. § 1983. But we will not on appeal convert his case into a civil rights action
because, as we have said before, such a conversion may lead to unfavorable
consequences for Wilkins. See generally Bunn v. Conley, 309 F.3d 1002, 1004-1007 (7th
Cir. 2002). If we decided that his complaint fails to state a claim upon which relief may
be granted, Wilkins would receive a strike under the Prison Litigation Reform Act, see
Lewis v. Sullivan, 279 F.3d 526, 527 (7th Cir. 2002). In addition, we would need to
consider issues that neither party has had reason to address, such as possible
exhaustion defenses, whether Wilkins named the correct defendant, and whether he
is prepared to pay the proper filing fee for a civil rights action (presently $350), as
opposed to the fee for a petition for a writ of habeas corpus($5).

       We note, in closing, that there was an unfortunate slip-up in the district court
that may have contributed to the length of these proceedings. Once the first district
judge assured Wilkins that the court would recruit replacement counsel, the second
judge either should have followed through on that assurance or notified Wilkins that
it would not recruit another lawyer before dismissing the case for want of prosecution.
That did not happen, and as a result, Wilkins had no idea that he was unrepresented
for a substantial period of time.

       The judgment of the district court is MODIFIED to be a dismissal for want of
jurisdiction.
