In the
United States Court of Appeals
For the Seventh Circuit

No. 01-2989

Michael Henderson,

Petitioner,

v.

United States of America,

Respondent.

Appeal from the United States District Court
for the Northern District of Illinois, Western Division.
No. 3:01 CV 50200--Philip G. Reinhard, Judge.

Submitted July 30, 2001--Decided August 29, 2001


  Before Flaum, Chief Judge, and Bauer and
Posner, Circuit Judges.

  Posner, Circuit Judge. Henderson moves
us for leave to file a second motion
under 28 U.S.C. sec. 2255 attacking his
conviction and sentence. In United States
v. Evans, 224 F.3d 670 (7th Cir. 2000),
we held that a postconviction motion that
is functionally, substantively, a motion
under section 2255 (the federal
prisoner’s habeas corpus substitute)
should be treated as such, even if
labeled differently (in that case, as a
motion under Rule 33 of the Federal Rules
of Criminal Procedure), for purposes of
determining whether a subsequent section
2255 motion should be deemed a successive
such motion; if so, our permission for it
to be filed in the district court is
required. 28 U.S.C. sec. 2244(b). We said
that in such a case the district court
should advise the mislabeling movant that
his motion may be deemed a section 2255
motion and give him a chance to withdraw
it. 224 F.3d at 675. But we did not
indicate what consequence would follow
if, as happened in the present case
(decided after Evans), the district court
had failed to advise. We now join the
courts which hold that in such a case the
mislabeled motion will not be deemed a
section 2255 motion. See United States v.
Kelly, 235 F.3d 1238, 1242 (10th Cir.
2000); Raineri v. United States, 233 F.3d
96, 100-01 (1st Cir. 2000); United States
v. Miller, 197 F.3d 644, 652 (3d Cir.
1999); Adams v. United States, 155 F.3d
582, 584 (2d Cir. 1998) (per curiam). We
are mindful that In re Tolliver, 97 F.3d
89 (5th Cir. 1996) (per curiam), applied
section 2244(b) when the district court
had over the prisoner’s objection
construed a prior pleading as a section
2255 motion; apparently it hadn’t been
labeled. But as pointed out in United
States v. Miller, supra, 197 F.3d at 651,
this was done without any discussion of
the issue of notice considered in the
line of cases that began later with Adams
v. United States; as far as appears, no
such issue had been raised in Tolliver.

  Against the rule of Adams and the cases
following it one might argue that while
the outcome can be an equitable one--it
avoids ambushing a prisoner who might
have thought that his "Rule 33 motion"
would not count--it could also be
inequitable. The prisoner may have been
crafty and selected the Rule 33 label to
put one over on the court system and get
to make two collateral attacks on the
same underlying judgment. An even more
serious problem is locating the authority
for an equitable dispensation. If as
Evans holds a Rule 33 motion is a
collateral attack under section 2255 when
it raises claims described in that
section, why should poor or strategic
labeling on a prisoner’s part, or a slip
up by the district judge, allow the
prisoner to mount a second collateral
attack without prior approval and without
meeting the statutory standards for
successive collateral attacks? There is
no general equity escape hatch in the
Antiterrorism and Effective Death Penalty
Act, which overhauled federal
postconviction challenges. Lack of full
knowledge of the consequences of one’s
acts (for example, the consequence, for
one’s right to file a subsequent
application for habeas corpus, of the
initial application) is not a basis for
waiving AEDPA’s explicit requirements.
Burris v. Parke, 130 F.3d 782, 783-84
(7th Cir. 1997); Alexander v. United
States, 121 F.3d 312, 314 (7th Cir.
1997); Pratt v. United States, 129 F.3d
54, 58-59 (1st Cir. 1997); In re Medina,
109 F.3d 1556, 1561-62 (11th Cir. 1997);
see also Felker v. Turpin, 518 U.S. 651
(1996). (But note the exception for
mousetrapping that we carved in Burris v.
Parke, 95 F.3d 465, 468-69 (7th Cir.
1996) (en banc).) In Burris, the initial
application preceded the enactment of
AEDPA, which changed the impact of such
an application on the right to file
successive applications. Yet we held in
the 1997 decision that the initial
application could not be ignored in
applying the new statute’s standards for
successive applications.

  But there is an important difference
between cases like Burris and the present
case. Henderson’s first motion was not a
section 2255 motion as such; it is deemed
a section 2255 motion as a result of the
rule adopted in Evans and other cases,
such as Romandine v. United States, 206
F.3d 731, 734-35 (7th Cir. 2000); United
States v. Woods, 169 F.3d 1077, 1079 (7th
Cir. 1999); Johnson v. United States, 196
F.3d 802, 805 (7th Cir. 1999); United
States v. Williams, No. 00-3136, 2001 WL
238155 (D.C. Cir. Feb. 7, 2001) (per
curiam); United States v. Rich, 141 F.3d
550, 551-52 (5th Cir. 1998); cf. Allen v.
Massie, 236 F.3d 1243, 1244 (10th Cir.
2001) (per curiam). Nothing in AEDPA says
that a motion not labeled as a section
2255 motion shall nevertheless be deemed
one if it could have been so labeled
accurately. This is a purely judge-made
rule, and so its contours are up to the
judges to draw. All we hold today, and
all the cases that we have cited hold, is
that we won’t deem a Rule 33 (or other
mislabeled motion) a section 2255 motion
unless the movant has been warned about
the consequences of his mistake. Cf.
Moran v. Sondalle, 218 F.3d 647, 651 (7th
Cir. 2000); Pischke v. Listcher, 178 F.3d
497, 500 (7th Cir. 1999); Copus v. City
of Edgerton, 96 F.3d 1038, 1039 (7th Cir.
1996) (per curiam).

  No warning was given to Henderson that
his Rule 33 motion might be deemed a
section 2255 motion. So he is not
required to obtain our permission to file
such a motion, and his motion for leave
to file a second section 2255 motion is
therefore dismissed as moot.
