From Casetext: Smarter Legal Research

Beverly v. Reno

United States Court of Appeals, Seventh Circuit
Apr 21, 1994
23 F.3d 158 (7th Cir. 1994)

Summary

involving claim that federal statute under which the plaintiff was convicted was unconstitutional

Summary of this case from Barnard v. Bires

Opinion

No. 93-2270.

Submitted March 7, 1994.

Decided April 21, 1994.

Alex Beverly, Jr., pro se.

George Brown, pro se.

Jack Donatelli, Asst. Atty. Gen., Civ. Div., Appellate Section, Chicago, IL, for defendants-appellees.

Appeal from the United States District Court for the Northern District of Illinois.

Before POSNER, Chief Judge, and BAUER and COFFEY, Circuit Judges.


After his conviction for federal narcotics violations was affirmed, United States v. Beverly, 913 F.2d 337 (7th Cir. 1990), Alex Beverly brought this civil suit to obtain a declaration that the statute under which he was convicted is unconstitutional. Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). Beverly had not made this claim in his appeal from his conviction, and he has offered no excuse for failing to do so. If, therefore, he had sought to attack the statute by instituting a postconviction proceeding under 28 U.S.C. § 2255, the federal prisoner's substitute for habeas corpus, he would be barred by the doctrine of waiver. Reed v. United States, 985 F.2d 880 (7th Cir. 1993); Liss v. United States, 915 F.2d 287, 290 (7th Cir. 1990). The question is whether he can avoid the bar by bringing an independent civil action. The answer is no, as three other circuits have already held. Marchetti v. Bitterolf, 968 F.2d 963, 966-67 (9th Cir. 1992); Spina v. Aaron, 821 F.2d 1126 (5th Cir. 1987); Dees v. Murphy, 794 F.2d 1543 (11th Cir. 1986). It is true that the interest secured by the waiver doctrine in the federal-prisoner postconviction setting is the interest in the finality of criminal judgments and that Beverly is not purporting to seek to vacate his conviction or sentence. But if he got a declaration that the statute under which he was convicted is unconstitutional, he would undoubtedly try to use the declaration to get his conviction set aside and if he succeeded in this he would have engineered a perfect evasion of the waiver doctrine. If he failed and sought solace in a damages judgment, he could not possibly obtain one, as everyone he might sue (Congress? the Attorney General? the U.S. Attorney? the warden of the prison in which he is incarcerated?) would have immunity. If he wants neither release nor damages, and is pursuing the suit out of merely academic curiosity about the constitutionality of the statute under which he was convicted, then he does not have the kind of interest in the outcome of the suit that will support federal jurisdiction, consistently with Article III of the Constitution. But probably he seeks a key that will unlock the prison door to him, and that quest, though one that he has standing to pursue, is barred by the waiver doctrine. The suit has no possible merit, therefore, and so was properly dismissed.

AFFIRMED.


Summaries of

Beverly v. Reno

United States Court of Appeals, Seventh Circuit
Apr 21, 1994
23 F.3d 158 (7th Cir. 1994)

involving claim that federal statute under which the plaintiff was convicted was unconstitutional

Summary of this case from Barnard v. Bires
Case details for

Beverly v. Reno

Case Details

Full title:ALEX BEVERLY, PLAINTIFF-APPELLANT, v. JANET RENO, ET AL.…

Court:United States Court of Appeals, Seventh Circuit

Date published: Apr 21, 1994

Citations

23 F.3d 158 (7th Cir. 1994)

Citing Cases

U.S. v. Collins

A conviction cannot be collaterally challenged by a civil rights claim for damages unless the…

Robertson v. Linder

These claims are subject to dismissal. First, § 1983 cannot be used as a substitute for a criminal appeal.…