                              In the
 United States Court of Appeals
                For the Seventh Circuit
                           ____________

No. 06-1490
ANGEL L. MORALES,
                                               Petitioner-Appellant,
                                  v.

MARK A. BEZY,
                                               Respondent-Appellee.
                           ____________
              Appeal from the United States District Court
      for the Southern District of Indiana, Indianapolis Division.
        No. 1:05-cv-1735-LJM—Larry J. McKinney, Chief Judge.
                           ____________
      ARGUED MAY 24, 2007—DECIDED AUGUST 24, 2007
                           ____________


  Before POSNER, KANNE, and ROVNER, Circuit Judges.
   POSNER, Circuit Judge. This appeal presents issues
concerning postconviction relief. The petitioner was
convicted in the federal district court for the Northern
District of Indiana in 1998 on his plea of guilty to having
participated in a conspiracy to launder money in an
illegal gambling business. 18 U.S.C. §§ 1956(a)(1)(A)(i),
1956(h). We affirmed his conviction and his sentence of 151
months in prison in United States v. Febus, 218 F.3d 784, 791-
95 (7th Cir. 2000). In 2005, while serving his sentence in a
federal prison in the Southern District of Indiana, he filed
a motion in the Northern District of Indiana under 28
2                                                 No. 06-1490

U.S.C. §§ 2241 and 2255 to set aside his conviction. The
motion was filed some 50 months after the conviction had
become final and therefore 38 months after the expira-
tion of the one-year statute of limitations for filing a sec-
tion 2255 motion. The district court in the northern district
therefore dismissed the section 2255 motion as untimely,
although it did not enter the dismissal on a piece of paper
separate from its opinion, as Fed. R. Civ. P. 58 requires. The
court transferred the petitioner’s section 2241 petition to
the federal district court for the Southern District of
Indiana, because such a petition must be filed in the dis-
trict in which the petitioner is confined rather than in the
one in which he was sentenced. Rumsfeld v. Padilla, 542
U.S. 426, 442-43 (2004). That court denied the petition on
the ground that the petitioner had had a remedy (in the
sense of a route to obtaining relief) under section 2255 in
the Northern District of Indiana that was not “inadequate
or ineffective to test the legality of his detention,” which is
a condition of a federal prisoner’s being allowed to file
a petition for habeas corpus under section 2241. 28 U.S.C.
§ 2255 ¶ 5.
  The remedy created by section 2255 is a substitute for
habeas corpus for federal prisoners; section 2241 backs it
up. Congress may have been anxious that without such a
backstop section 2255 might be thought an illicit attempt to
suspend habeas corpus, In re Davenport, 147 F.3d 605,
609 (7th Cir. 1998), though if this was its motive its anxiety
was misplaced. Habeas corpus as a postconviction
remedy is not the type of habeas corpus to which Article I,
§ 9, of the Constitution was referring when it provided that
Congress can suspend the writ only in times of invasion or
rebellion. Lindh v. Murphy, 96 F.3d 856, 867 (7th Cir. 1996)
(en banc), reversed on other grounds, 521 U.S. 320 (1997);
No. 06-1490                                                  3

Benefiel v. Davis, 403 F.3d 825, 827 (7th Cir. 2005); Taylor v.
Gilkey, 314 F.3d 832, 834-35 (7th Cir. 2002); Henry J.
Friendly, “Is Innocence Irrelevant? Collateral Attack on
Criminal Convictions,” 38 U. Chi. L. Rev. 143, 170-71 (1970).
“Over the years, Congress has authorized a much broader
use of habeas corpus; but curtailing an optional statutory
enlargement does not violate the suspension clause. That
would create an irrational ratchet. Habeas corpus could
always be enlarged, but once enlarged could not be
returned to its previous, less generous scope without a
constitutional amendment. Once this was understood,
there would be few if any further enlargements.” LaGuerre
v. Reno, 164 F.3d 1035, 1038 (7th Cir. 1998).
   Habeas corpus as a procedure for postconviction relief
is a different animal from habeas corpus as a remedy
against executive or military detention, merely sharing a
name with it. In Felker v. Turpin, 518 U.S. 651, 663-64 (1996),
it is true, the Supreme Court assumed that the suspension
clause is applicable to habeas corpus as a postconviction
remedy (see also Swain v. Pressley, 430 U.S. 372, 381 (1977);
In re Dorsainvil, 119 F.3d 245, 248 (3d Cir. 1997); Triestman
v. United States, 124 F.3d 361, 370, 378 (2d Cir. 1997)), but
it did not decide the question and we are confident that
should it ever do so it will reject the application of the
suspension clause. Otherwise Congress would have the
power to entrench a habeas corpus statute against repeal;
an expansion of habeas corpus could be rescinded only
by amending the suspension clause, just as if the expan-
sion had been by constitutional amendment. Since Con-
gress cannot amend the Constitution, the ratchet would
be not merely irrational but unconstitutional; it would
bypass the procedure specified in Article V for amending
the Constitution. That is not to say that a decision by
Congress to eliminate all postconviction remedies could
4                                                No. 06-1490

not be challenged. But the proper route would be the
due process clauses rather than the suspension clause,
which limits a much more ominous form of congressional
action than curtailing collateral attack on criminal
convictions—allowing executive or military detention,
bypassing all courts altogether.
  The petitioner’s appeal is from the judgment in the
Southern District of Indiana turning down his section
2241 petition. But it asks us also to decide whether he is
entitled to relief under section 2255 as well, even though
the district court in the southern district did not rule on
that issue. The court in the northern district had dismissed
his section 2255 motion and the court in the southern
district had no authority to consider it. Only the court
in the district in which the movant was sentenced, here
the northern district, has such authority.
  The petitioner argues that to require a petitioner in a dual
2241/2255 case to appeal separately from the denial of each
of the two petitions (technically, one petition and one
motion) raises the hideous spectre of “piecemeal appeals.”
That is a frivolous argument in a case such as this in
which the two petitions should have been filed in separate
districts and thus ruled on separately and (if denied)
given rise to separate appeals. The only reason they were
conjoined was that the petitioner didn’t realize that he
couldn’t file a habeas corpus petition in the district in
which he had been sentenced because he was not con-
fined there. His mistake does not entitle him to appeal from
the dismissal more than 60 days later, Fed. R. App. P.
4(a)(1)(B)—and without his ever having filed a notice of
appeal in the district court that had rendered the decision
he wants to appeal. Bowles v. Russell, 127 S. Ct. 2360 (2007);
Varhol v. National Railroad Passenger Corp., 909 F.2d 1557,
1561 (7th Cir. 1990) (en banc) (per curiam).
No. 06-1490                                                   5

   Lest we raise false hopes, we point out that although
the district court in the northern district did not enter a
Rule 58 judgment order dismissing the section 2255 motion,
the petitioner cannot now appeal the dismissal by filing a
notice of appeal in that district court and then invoking the
rule that if no Rule 58 judgment order has been entered the
party can postpone appealing from a final judgment until
it is entered. Fed. R. Civ. P. 58(b)(2)(A). That route is barred
to our petitioner by the next subsection of Rule 58, which
provides an outer limit to appeal of 150 days from when
the final judgment is entered on the district court’s
docket. Fed. R. Civ. P. 58(b)(2)(B); see Committee Notes to
2002 Amendments to Rule 58; 15B Charles A. Wright,
Arthur P. Miller & Edward H. Cooper, Federal Practice and
Procedure § 3915, at 253 (2007). That deadline expired more
than a year ago. So long a delay (two and a half years)
would doubtless bar the appeal under the doctrine of
laches, Pruitt v. City of Chicago, 472 F.3d 925, 927-28 (7th
Cir. 2006); see Teamsters & Employers Welfare Trust of Illinois
v. Gorman Bros. Ready Mix, 283 F.3d 877, 880 (7th Cir. 2002);
White v. Daniel, 909 F.2d 99, 102 (4th Cir. 1990), even if
there were no 150-day limit.
   All this is on the assumption that the dismissal of the
petitioner’s section 2255 motion was final despite the
absence of a Rule 58 judgment order. It was. Nothing in
the section 2255 proceeding remained for decision by
the district court; the court was through with it, which
is the meaning of finality for purposes of determining
appealability. Chase Manhattan Mortgage Corp. v. Moore,
446 F.3d 725, 726 (7th Cir. 2006); Moreau v. Harris County,
158 F.3d 241, 244 (5th Cir. 1998). The fact that a separate
action—the petition for habeas corpus under section
2241—was transferred rather than terminated is irrelevant.
It is irrelevant not only because the two actions should
6                                                 No. 06-1490

never have been joined, but also because relinquishing
jurisdiction over a part of a case to another court (or to
an agency) does not affect the finality of the dismissal of
the rest of the case. An example is a case in which a dis-
trict court dismisses the federal claim that conferred
jurisdiction on the court but relinquishes the plaintiff’s
supplemental state-law claim to the state courts. Ross ex rel.
Ross v. Board of Education, 486 F.3d 279, 281 (7th Cir. 2007);
Disher v. Information Resources, Inc., 873 F.2d 136, 139 (7th
Cir. 1989); Erie County Retirees Ass’n v. County of Erie, 220
F.3d 193, 202 (3d Cir. 2000).
  So the petitioner cannot challenge the denial of his
section 2255 motion in this court. We therefore cannot
reach the merits of his claim that the district court should
have excused, under the doctrine of equitable tolling, his
failure to have filed his section 2255 motion until 38 months
after the deadline for filing it. Gildon v. Bowen, 384 F.3d 883,
886-87 (7th Cir. 2004); Green v. United States, 260 F.3d 78,
82 (2d Cir. 2001).
  All this would be of no moment if the petitioner’s sec-
tion 2241 action (habeas corpus) had merit, but it does not.
He cannot show that his section 2255 remedy was inade-
quate or ineffective. A prisoner cannot be permitted to
lever his way into section 2241 by making his section 2255
remedy inadequate, here by failing to appeal from the
denial of his section 2255 motion. Taylor v. Gilkey, supra, 314
F.3d at 835-36; Cradle v. United States ex rel. Miner, 290 F.3d
536, 538-39 (3d Cir. 2002) (per curiam); United States v.
Lurie, 207 F.3d 1075, 1077-78 (8th Cir. 2000); see also Garza
v. Lappin, 253 F.3d 918, 920-21 (7th Cir. 2001); Charles v.
Chandler, 180 F.3d 753, 757-58 (6th Cir. 1999) (per curiam).
What is true but irrelevant is that the ground on which the
petitioner wanted to challenge his conviction—that he was
No. 06-1490                                                   7

convicted under 8 U.S.C. § 1956(a)(1) of engaging in con-
duct, namely using gross receipts from a gambling enter-
prise to promote the enterprise, that the statute does not
punish—had no case support until this court decided
United States v. Scialabba, 282 F.3d 475 (7th Cir. 2002),
shortly after the one-year deadline for the filing of the
petitioner’s section 2255 motion had passed. His
codefendants, having filed their section 2255 motions
earlier, were able to take advantage of the Scialabba deci-
sion. Santos v. United States, 461 F.3d 886 (7th Cir. 2006).
But the fact that a position is novel does not allow a
prisoner to bypass section 2255, with its one-year dead-
line, for that would blow away the deadline and leave
nothing in its place, as there is no statute of limitations
applicable to a federal prisoner’s filing a section 2241
petition. Compare 28 U.S.C. § 2244(d)(1); Owens v. Boyd, 235
F.3d 356, 360 (7th Cir. 2000). Only if the position is fore-
closed (as distinct from not being supported by—from
being, in other words, novel) by precedent is the deadline
lifted. United States v. Prevatte, 300 F.3d 792, 799-800 (7th
Cir. 2002); In re Davenport, supra, 147 F.3d at 610-12.
  The petitioner argues finally that Scialabba and Santos
establish that he is actually innocent of the crime of which
he was convicted, as distinct from his having been the
victim merely of a procedural irregularity that would
justify at most a new trial, Davis v. United States, 417 U.S.
333, 346-47 (1974); Cooper v. United States, 199 F.3d 898,
901 (7th Cir. 1999); Triestman v. United States, supra, 124 F.3d
at 378-80, and that a person who is actually innocent
should be allowed to file a section 2241 petition at any time,
subject to the limitations in section 2244. But the peti-
tioner’s claim of innocence is premature. There is an
intercircuit split, see United States v. Grasso, 381 F.3d 160,
166-68 (3d Cir. 2004); United States v. Iacaboni, 363 F.3d 1,
8                                                 No. 06-1490

4 (1st Cir. 2004), to be resolved next year by the Supreme
Court, see United States v. Santos, No. 06-1005, 127 S. Ct.
2098 (Apr. 23, 2007) (granting certiorari), over the issue that
was decided in Scialabba and Santos in favor of the peti-
tioner’s position. The question of his innocence is thus in
limbo. This is not to say that a determination of actual
innocence can never be made until the Supreme Court
has resolved the issue underlying the claim of actual
innocence, for of course the Court leaves many issues to
simmer at the circuit level indefinitely. But given that the
issue underlying the petitioner’s claim of actual innocence
is before the Court, it would be paradoxical to deem him
innocent by virtue of our decisions though within a year
it may turn out that he is guilty by virtue of the Court’s
rejecting those decisions. In re Davenport, supra, 147 F.3d
at 612. If the Court affirms Santos or somehow fails to
resolve the issue, leaving our decisions intact, our peti-
tioner can file a new section 2241 petition.
                                                   AFFIRMED.




  ROVNER, Circuit Judge, dissenting. The court today
resolves that a man who under our circuit law is inno-
cent of the federal crime for which he has been imprisoned,
should remain in prison on the chance that the Supreme
Court will disagree with our understanding of the law
and deem his conduct a crime. It is the antithesis of our
justice system to hold that an innocent man should be
imprisoned for fear that a guilty man will go free. Schlup v.
No. 06-1490                                                  9

Delo, 513 U.S. 298, 325 (1995) (“Indeed, concern about
the injustice that results from the conviction of an inno-
cent person has long been at the core of our criminal justice
system. That concern is reflected . . . in the ‘fundamental
value determination of our society that it is far worse to
convict an innocent man than to let a guilty man go
free.’ ”). Yet that is what the court has chosen today, and I
respectfully dissent.
  The majority declares that the question of Morales’
innocence is in limbo because there is an intercircuit split,
which the Supreme Court may resolve next year in a
case in which it has granted certiorari. But the definition of
actual innocence cannot hinge on the status of certiorari
petitions in the Supreme Court, and an intercircuit split
should not preclude an actual innocence claim on the
possibility that the Supreme Court in the future may hear
the issue and decide differently. Until the Supreme Court
tells us otherwise, our cases should control, and under
our caselaw, he has a meritorious claim of actual innocence.
In addition to revealing an unsettling level of insecurity
about the soundness of our own decisions, the majority’s
reliance on the certiorari status of other cases poses all
kinds of problems, including the real possibility that the
Supreme Court will subsequently decide that certiorari was
improvidently granted, or will otherwise fail to reach the
merits when the claim is heard. Moreover, it is inconceiv-
able that we would pursue the same path in a case with a
circuit split but no similar case pending before the Supreme
Court. In that case, the defendant faces the same circuit
split, and there is still the possibility that within a year or
less the Supreme Court would reject our cases. Yet, that
defendant would be set free, and this one is not. The law
should not tolerate such arbitrariness. That, of course,
assumes that the majority would not require that defendant
10                                             No. 06-1490

to wait as well. It appears that whether a defendant may
proceed with his claim of actual innocence or not depends
on whether we think the Supreme Court will rule on a case
in the future, perhaps only the near future. In any case, it
allows a defendant with a claim of actual innocence to
languish in prison indefinitely awaiting a Supreme Court
action that might never occur.
  There is simply no support in any caselaw for interject-
ing such a consideration into the analysis of whether a
defendant may proceed on a claim of actual innocence.
Until the Supreme Court actually decides an issue, we
should follow our circuit’s decisions concerning statutory
interpretation, and under that law he has a valid claim of
innocence. Moreover, this is different from Davenport—
which is the only case cited by the majority for its novel
proposition—because in this case there is no split between
the circuit in which he is incarcerated and the circuit in
which he was convicted. In re Davenport, 147 F.3d 605,
612 (7th Cir. 1998). We are both the circuit of conviction
and incarceration here, so there is no concern about
which law applies to the claim of actual innocence.
   Recognizing that under our law, Morales has a valid
claim of actual innocence may be only one of the steps.
Many courts, including our own—although the courts
have not always been consistent—have held that a § 2241
is available only when there is both a valid claim of actual
innocence and the petitioner has not had an unobstructed
opportunity to present the claim prior to this time. Compare
Taylor v. Gilkey, 314 F.3d 832, 835 (7th Cir. 2002) (holding
that “§ 2255 is ‘inadequate or ineffective’ only when a
structural problem in § 2255 forecloses even one round
of effective review—and then only when the claim being
foreclosed is one of actual innocence.”); Ivy v. Pontesso,
No. 06-1490                                                  11

328 F.3d 1057, 1060 (9th Cir. 2003) (“it is not enough that
the petitioner is presently barred from raising his claim of
innocence by motion under § 2255. He must never have
had the opportunity to raise it by motion.”); with Cooper
v. United States, 199 F.3d 898, 901 (7th Cir. 1999) (noting
that a conviction of a non-existent crime is “in anyone’s
book . . . a clear miscarriage of justice,” and that “a valid
claim of actual innocence would be enforceable under
§ 2241 without regard to time limits under § 2255 if re-
lief under that section was not, for some reason, avail-
able.”); see also Bousley v. United States, 523 U.S. 614, 623,
630 (1998) (procedurally defaulted claim could neverthe-
less be raised if petitioner could establish that the con-
stitutional error probably resulted in the conviction of one
who is actually innocent). The majority conveys the
impression that if the Supreme Court upholds Scialabba,
Morales can proceed with a new petition, but the majority
fails to explain why the reasoning in this opinion in
rejecting the § 2241 petition would not equally doom the
later petition in establishing that he had an unobstructed
opportunity to present the claim prior to this.
  Although the majority does not explain that, I agree
that a § 2241 petition is available because he did not
have an unobstructed opportunity to present the claim
prior to this time. Scialabba was decided after the one-year
time period expired for the filing of his § 2255 petition, and
for purposes of an actual innocence claim, that should be
enough. Stephens, Jr. v. Al Herrera, 464 F.3d 895, 898 (9th Cir.
2006). We should not foreclose review of a claim of actual
innocence solely because a defendant did not anticipate
any novel argument that could possibly be made. See, e.g.,
Bousley, 523 U.S. at 622 (recognizing that a claim may be so
novel that its legal basis is not reasonably available to
12                                               No. 06-1490

counsel). That would encourage the kind of scattershot
approach to litigation that vexes the courts already. It
would also mean that the creativity of a defendant’s
attorney, if he even has one, or the sheer luck of timing
would be the definitive factor in who remains in prison for
a non-existent crime and who gets out. This case illustrates
it precisely, as his co-defendants had pending § 2255
petitions at the time Scialabba was decided, and therefore
were able to successfully raise the claim in the § 2255
petition and have long been released. Instead, the question
should be whether, once the claim was recognized and
available in this court, the petitioner had an unobstructed
opportunity to present it. He did not, and therefore should
be allowed to proceed with it at this time. See Kramer v.
Olson, 347 F.3d 214, 217 (7th Cir. 2003) (recognizing that a
defendant “must first show that the legal theory he ad-
vances relies on a change in law that postdates his first
§ 2255 motion . . . and ‘eludes permission in section 2255
for successive motions’ ”); Abdullah v. Hedrick, 392 F.3d 957,
959 (8th Cir. 2004) (holding that Abdullah had
an unobstructed opportunity to raise the claim because
after the case was decided establishing his actual inno-
cence, he failed to raise it properly in a pending § 2255
petition). As we stated in Cooper v. United States, 199 F.3d
898, 901 (7th Cir. 1999), a conviction of a non-existent
crime is “in anyone’s book . . . a clear miscarriage of
justice,” and as we have the authority to redress it, I see
no reason why we should fail to do so at this time. Accord-
ingly, I respectfully dissent.
No. 06-1490                                          13

A true Copy:
      Teste:

                     _____________________________
                     Clerk of the United States Court of
                       Appeals for the Seventh Circuit




               USCA-02-C-0072—8-24-07
