United States of America v. Kenneth R. Smith

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted November 17, 20221
Decided November 18, 2022
Before
DIANE P. WOOD, Circuit Judge
AMY J. ST. EVE, Circuit Judge
JOHN Z. LEE, Circuit Judge
No. 22-1958
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
KENNETH R. SMITH,
Defendant-Appellant.
Appeal from the United States District
Court for the Western District of
Wisconsin.
No. 08-CR-188-C-01
James D. Peterson,
Chief Judge.
O R D E R
Kenneth R. Smith is a federal prisoner appealing the denial of what he called a
motion for compassionate release. The district court addressed the motion on the
1 The United States filed a notice of noninvolvement and is not participating in
this appeal. We have agreed to decide the case without oral argument because the
appeal is frivolous. See F ED. R. A PP . P. 34(a)(2)(A).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with F ED. R. APP . P. 32.1

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No. 22-1958 Page 2
merits, but we conclude that it was an unauthorized successive collateral attack. Thus,
we vacate and remand with instructions to deny the motion for lack of jurisdiction.
In 2009, Kenneth Smith pleaded guilty to producing child pornography.
See 18 U.S.C. § 2251(a). Under a written plea agreement, he waived his right to a direct
appeal (but not to collateral attacks) and was sentenced to 20 years’ imprisonment.
Smith later moved to vacate the sentence under 28 U.S.C. § 2255 on the ground that
18 U.S.C. § 2251(a) does not reach the conduct that he engaged in. The district court
denied that motion, Smith v. United States, No. 15-cv-755-bbc, 2015 WL 7721845
(W.D. Wis. Nov. 30, 2015), as well as Smith’s request to reconsider and then a “motion
for clarification,” No. 15-cv-755-bbc, 2015 WL 9484522 (W.D. Wis. Dec. 29, 2015). Shortly
thereafter, the district court denied a second request for reconsideration and warned
Smith that further requests would likely be denied without explanation. No. 15-cv-755-
bbc (W.D. Wis. Feb. 23, 2016).
In the years since, Smith has continued to challenge his conviction—to no avail—
through filings such as one “motion for hearing to correct illegal sentence,” United States
v. Smith, No. 08-cr-188-bbc (W.D. Wis. May 23, 2016), one ”motion to file plain error,”
No. 15-cv-755-bbc (W.D. Wis. March 27, 2018), and two applications in this court for
leave to file a successive collateral attack, No. 16-1918 (7th Cir. April 26, 2016); No. 19-
2063 (7th Cir. June 4, 2019). All were unsuccessful.
Smith filed his first motion for compassionate release in 2021, once again
asserting the illegality of his conviction and citing it as an extraordinary and compelling
reason to reduce his sentence. See 18 U.S.C. § 3582(c)(1)(A)(i). The district court1 denied
the motion for failure to exhaust administrative remedies and further noted that Smith’s
arguments had been heard and rejected previously. United States v. Smith, No. 08-cr-188-
bbc, slip op. at 1 (W.D. Wis. Mar. 25, 2021). We affirmed, No. 21-1640 (7th Cir. Mar. 7,
2022), and acknowledged that even if Smith had exhausted administrative remedies, the
district court rightly denied relief because prisoners cannot use motions for
compassionate release to remedy supposed errors in a conviction or sentence, United
States v. Thacker, 4 F.4th 569, 574 (7th Cir. 2021), cert. denied, 142 S. Ct. 1363 (2022).
Smith then filed what he styled as another motion for compassionate release—
again raising arguments challenging his conviction—asserting that his due process
rights were violated because his conduct aligned with “manufacture of child
1 Judge Barbara B. Crabb was originally assigned to this case and handled all
prior motions until the one currently under review, which was ruled upon by Chief
Judge James D. Peterson.

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No. 22-1958 Page 3
pornography” but he was convicted of “sexual exploitation of a minor.” The district
court summarily denied his motion, citing Thacker and noting that Smith was yet again
raising similar, if not the same, arguments about his conviction.
To the extent that Smith’s motion was one for compassionate release, the district
judge was correct that § 3582(c)(1) is not the mechanism to challenge an illegal
conviction. Thacker, 4 F.4th at 574; see also United States v. Brock, 39 F.4th 462 (7th Cir.
2022); United States v. Martin, 21 F.4th 944 (7th Cir. 2021).
In light of the clear pattern of behavior that Smith’s filings have displayed, we do
not think Smith’s request should be treated as a compassionate-release motion. The
substance, not the label, of a request for relief controls how a court should treat it.
United States v. Carraway, 478 F.3d 845, 848–49 (7th Cir. 2007). Smith raises the same
theory regarding the unconstitutionality of his conviction that he raised in his original
§ 2255 motion, his § 2255(h) requests to file subsequent motions, and his first
compassionate-release motion. Because Smith’s post-conviction motion seeks to vacate,
set aside, or correct a sentence, it substantively falls within the scope of § 2255. Gonzalez
v. Crosby, 545 U.S. 524, 531 (2005); Carraway, 478 F.3d at 848. It might be the rare
compassionate-release case in which we strictly apply this rule, but we do so here
because Smith’s record leaves no doubt.
As Smith is aware, permission from the court of appeals is required to file a
successive collateral attack in district court. 28 U.S.C. § 2255(h); Carraway, 478 F.3d
at 849. But he did not to seek or obtain permission before filing the “compassionate
release” motion under review. Labelling a collateral attack as a different kind of motion
does not allow Smith to circumvent the jurisdictional limitation on successive habeas
actions. Curry v. United States, 507 F.3d 603, 605 (7th Cir. 2007); Melton v. United States,
359 F.3d 855, 857 (7th Cir. 2004). The district court lacked jurisdiction to address the
merits. Curry, 507 F.3d at 605–06; United States v. Lloyd, 398 F.3d 978, 980 (7th Cir. 2005).
As for the appeal, we can construe Smith’s notice of appeal as an implicit request
for permission to mount a successive collateral attack. See Melton, 359 F.3d at 858; Lloyd,
398 F.3d at 981. It is denied. Smith’s challenge does not meet the statutory criteria under
28 U.S.C. § 2255(h) for successive collateral attacks: He has presented no newly
discovered evidence nor a new, retroactive decision by the Supreme Court of the United
States. He is rehashing arguments that this court and the district court have rejected
multiple times; including in a properly labeled (first) motion to bring a successive
collateral attack. See No. 16-1918 (7th Cir. May 9, 2016).
Smith has been warned repeatedly about his pattern of filings: The district court
told him in 2016—after three motions for reconsideration of the denial of his § 2255

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No. 22-1958 Page 4
motion—that any more would likely be denied without explanation. No. 15-cv-755-bbc
(W.D. Wis. Feb. 23, 2016). After he filed more motions and wrote directly to the court
seeking a response, the court again told him that “any motion attacking your sentence
will be reviewed and, unless it is accompanied by an order of the Court of Appeals for
the Seventh Circuit permitting the filing, [the district judge would] place the document
in the file of this case and make no response to it.” No. 15-cv-755-bbc (W.D. Wis.
Aug. 22, 2016). Neither warning stopped Smith from filing, between 2016 and 2020, four
additional motions, variously labelled, challenging the validity of his conviction. In
February 2020, Smith received yet another warning from the district court that “[u]nless
and until the law changes to permit [Smith] to file a successive collateral attack under
28 U.S.C. § 2255(h)(2), any documents, including motions, that [Smith] files in 08-cr-188
or in 15-cv-755 will be added to his court file, but not acknowledged or docketed.”
No. 15-cv-755-bbc, 2020 WL 5414895, slip op. at 1 (W.D. Wis. Feb. 24, 2020). It is
apparent that these warnings have not stopped Smith from seeking to set aside, vacate,
or correct his criminal sentence by mislabeling his motions and requests for relief.
We therefore conclude by warning Smith that he risks monetary sanctions and a
filing bar under Alexander v. United States, 121 F.3d 312 (7th Cir. 1997) if he files another
motion, no matter how labeled, challenging the validity of his conviction or sentence.
We VACATE the decision of the district court and REMAND with instructions to
deny the motion for want of jurisdiction.

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