In the
United States Court of Appeals
For the Seventh Circuit

No. 01-2006

GEORGE HERMAN RUTH,

Petitioner-Appellant,

v.

UNITED STATES OF AMERICA,

Respondent-Appellee.

Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. IP 01-138-C-T/F--John D. Tinder, Judge.

Submitted June 22, 2001--Decided September 12, 2001


  Before Manion, Diane P. Wood, and Williams,
Circuit Judges.

  Diane P. Wood, Circuit Judge. George Ruth
filed a motion under 28 U.S.C. sec. 2255
collaterally attacking his 120-month
prison sentence, imposed in 1994 for
possession of phenylacetic acid with
intent to manufacture methamphetamine.
The district court determined that Ruth’s
prior motion for a new trial under
Federal Rule of Criminal Procedure 33
constituted a collateral attack within
the scope of sec. 2255 para. 1, and thus
that his current sec. 2255 motion was
successive. Because Ruth lacked
permission from this court to file a
successive challenge, the district court
dismissed Ruth’s motion for lack of
jurisdiction. Ruth appeals the dismissal
of his sec. 2255 motion and disputes the
district court’s construction of his
prior Rule 33 motion.

  This case illustrates a point we made in
United States v. Evans, 224 F.3d 670 (7th
Cir. 2000): "A bona fide motion for a new
trial on the basis of newly discovered
evidence falls outside sec. 2255 para. 1
because it does not contend that the
conviction or sentence violates the
Constitution or any statute." Id. at 673-
74. As we explain below, Ruth’s prior
motion for a new trial was a bona fide
Rule 33 motion. The district court’s
conclusion that his current sec. 2255
motion constitutes an improper second
collateral attack was therefore
incorrect. Accordingly, we vacate the
district court order and remand the case
for further proceedings.

  Following a 1995 conviction for
possession of phenylacetic acid (PAA)
with intent to manufacture
methamphetamine, Ruth was sentenced to
120 months’ imprisonment and three years’
supervised release. We affirmed his
conviction and sentence on direct appeal.
United States v. Ruth, 65 F.3d 599 (7th
Cir. 1995). In April 1998 Ruth filed a
Rule 33 motion for a new trial based on
newly discovered evidence. At trial the
government had theorized that Ruth had
utilized numerous aliases, including an
allegedly phony company called
Countryside Fragrances, to arrange his
purchases of PAA. Ruth contended that
newly discovered evidence, which he
received following a Freedom of
Information Act request, supported his
argument that Countryside Fragrances was
a legitimate company that existed
independently of him. This new evidence,
he argued, bolstered his claim of
innocence and required a new trial. The
government opposed Ruth’s motion,
claiming that the evidence of his guilt
was overwhelming. In denying Ruth’s
motion, the district court held that the
evidence Ruth offered was merely
cumulative and would not likely lead to
an acquittal if presented at a new trial.

  Earlier this year, Ruth filed a sec.
2255 motion raising an argument under
Apprendi v. New Jersey, 530 U.S. 466
(2000), and asking the district court to
correct his sentence because the amount
of PAA for which he was held responsible
was not included in the indictment. The
district court acknowledged Ruth’s
earlier Rule 33 motion and, citing Evans,
concluded that it "must" be treated as a
sec. 2255 motion. The district court then
determined that it lacked jurisdiction to
hear Ruth’s sec. 2255 motion because he
had not obtained this court’s permission
to file a second or successive collateral
attack and dismissed the motion. See
Nunez v. United States, 96 F.3d 990 (7th
Cir. 1996).

  Ruth then filed a motion under Federal
Rule of Civil Procedure 59(e) asking the
district court to reconsider its judgment
because, according to Ruth, the court
erred in construing his prior Rule 33
motion as a collateral attack under sec.
2255 para. 1. The district court denied
Ruth’s motion to reconsider because it
believed Ruth’s Rule 33 motion fit the
description of sec. 2255 para. 1. See,
e.g., Evans, 224 F.3d at 672 (holding
that "any post-judgment motion in a
criminal proceeding that fits the
description of sec. 2255 para. 1 is a
motion under sec. 2255"). Ruth renews his
arguments in this court.

  A Rule 33 motion must be considered a
collateral attack for purposes of sec.
2255 para. 8, the provision governing
successive habeas corpus filings, when
the substance of the motion falls within
the scope of sec. 2255 para. 1. Evans,
224 F.3d at 672-73; see also Romandine v.
United States, 206 F.3d 731, 734-35 (7th
Cir. 2000). In Evans, a prisoner who lost
his direct appeal and his first sec. 2255
motion filed a Rule 33 motion seeking a
new trial on the basis of what he
considered to be "newly discovered
evidence." Evans’s motion, however,
revealed a different underlying argument.
His purported "new evidence" was that the
prosecution had failed to disclose
evidence in violation of his due process
rights under Brady v. Maryland, 373 U.S.
83 (1963). Evans also argued that he was
entitled to a new trial because the
prosecution violated federal law by using
witnesses who anticipated lenient
treatment in exchange for their
testimony. Labels to one side, these were
the kinds of arguments contemplated by
sec. 2255 para. 1: the Brady argument
raised a constitutional attack on the
conviction, and the witness argument
rested on statutory grounds. We held that
his motion, properly construed, was a
collateral attack and instructed the
district court to dismiss for lack of
jurisdiction under Nunez.

  In analyzing Evans’s motion and our
prior law concerning successive filings,
we noted that "[a] bona fide motion for a
new trial on the basis of newly
discovered evidence falls outside sec.
2255 para. 1 because it does not contend
that the conviction or sentence violates
the Constitution or any statute." Evans,
224 F.3d at 673-74. An argument of actual
innocence, based on newly discovered
evidence, does not implicate the
Constitution, Herrera v. Collins, 506
U.S. 390, 400-01 (1993), and so a Rule 33
motion that actually argues innocence,
rather than offers "new evidence of a
constitutional violation or other ground
of collateral attack," is not a sec. 2255
filing.

  The latter kind of motion is what we
have here. Ruth asserted in his Rule 33
motion that his new evidence of
Countryside Fragrances’s legitimate and
independent existence supported his claim
of innocence. He did not argue that the
government violated Brady by failing to
disclose this information, nor did he
assert that the existence of this
information rendered his sentence
excessive or called into question the
jurisdiction of the court. If he had
raised those arguments--all listed in
sec. 2255 para. 1 as grounds for a
collateral attack--the district court’s
resolution would have been correct.
Instead, Ruth’s bona fide Rule 33 motion
is not properly characterized as one
under sec. 2255. His latest filing is
therefore his first collateral attack
under sec. 2255, and the district court
should have addressed it on its merits.
Accordingly, we Vacate the district court
judgment and Remand the case with
instructions to do so.
