224 F.3d 670 (7th Cir. 2000)
United States of America, Plaintiff-Appellee,v.Marcus O. Evans, Defendant-Appellant.
No. 99-1187
In the  United States Court of Appeals  For the Seventh Circuit
Submitted July 28, 2000Decided August 18, 2000

Appeal from the United States District Court  for the Northern District of Illinois, Western Division.  No. 93 CR 20024--Philip G. Reinhard, Judge.[Copyrighted Material Omitted]
Before Posner, Easterbrook, and Diane P. Wood, Circuit  Judges.
Easterbrook, Circuit Judge.


1
This appeal presents  the question whether a motion for a new trial,  purportedly based on Fed. R. Crim. P. 33, is a  collateral attack on a criminal judgment, and  therefore subject to the rule that advance  appellate approval is required to initiate a  successive collateral attack. 28 U.S.C. sec.2255  para.8. Two of our decisions--United States v.  Woods, 169 F.3d 1077 (7th Cir. 1999), and  O'Connor v. United States, 133 F.3d 548 (7th Cir.  1998)--reserve this question for future decision.  The future is now, and we hold that any post-  judgment motion in a criminal proceeding that  fits the description of sec.2255 para.1 is a  motion under sec.2255, and that the second (and  all subsequent) of these requires appellate  approval. For this purpose the caption that the  defendant puts on the motion is irrelevant; a  federal prisoner may not use Rule 33 to avoid  sec.2255 para.8. But a genuine claim of newly  discovered evidence tending to show innocence is  not within sec.2255 para.1 and therefore does not  require prior appellate approval, even if the  prisoner has litigated and lost a collateral  attack under sec.2255.


2
Section 2255 para.8 and 28 U.S.C. sec.2244(b),  both enacted in 1996 as part of the Antiterrorism  and Effective Death Penalty Act, replace the  doctrine of abuse-of-the-writ with a statutory  formula for successive collateral attacks.  Paragraph 8 says that "a second or successive  motion" is subject to this screening mechanism,  but the simplicity of the phrase is deceptive.  Does this mean any successive motion, so that a  new motion after the first was dismissed on  procedural grounds, is subject to prior screening  (and the stringent substantive limits)? A  substantial body of opinions have been devoted to  the question what counts as a collateral attack  for this purpose. E.g., Slack v. McDaniel, 120 S.  Ct. 1595 (2000); Stewart v. Martinez-Villareal,  523 U.S. 637 (1998); Calderon v. Thompson, 523  U.S. 538 (1998); Potts v. United States, 210 F.3d  770 (7th Cir. 2000); Gray-Bey v. United States,  209 F.3d 986 (7th Cir. 2000); In re Page, 179  F.3d 1024 (7th Cir. 1999); Benton v. Washington,  106 F.3d 162 (7th Cir. 1996); Burris v. Parke, 95  F.3d 465 (7th Cir. 1996) (en banc). Many of these  decisions try to cope with procedural  complexities--motions dismissed as premature or  otherwise irregular procedurally. But a few  address the substantive question: what  distinguishes a motion under sec.2255 (or  sec.2254), and thus countable under sec.2244(b)  and sec.2255 para.8, from other post-verdict  motions in a criminal case? Take Rule 33, which  provides


3
On a defendant's motion, the court may grant a  new trial to that defendant if the interests of  justice so require. . . . A motion for new trial  based on newly discovered evidence may be made  only within three years after the verdict or  finding of guilty. . . . A motion for a new trial  based on any other grounds may be made only  within 7 days after the verdict or finding of  guilty or within such further time as the court  may fix during the 7-day period.


4
No one supposes, for example, that a motion under  the last sentence, filed within 7 days of the  jury's verdict, is a collateral attack that  subjects any later sec.2255 motion to the  appellate screening mechanism. Yet Rule 33 also  authorizes new-trial motions as late as three  years after the verdict, which often will be  later than the period of limitations for motions  under sec.2255 para.6. These deferred motions are  a form of collateral attack even when they seek  to vindicate "the interests of justice" rather  than any constitutional norm, and as in this case  some Rule 33 motions may be indistinguishable  from successive motions under sec.2255.


5
Evans was sentenced to life imprisonment for  his role in a large-scale, long-running cocaine  distribution operation. On direct appeal we  affirmed his conviction and sentence. United  States v. Evans, 92 F.3d 540 (7th Cir. 1996).  Evans then filed a motion under sec.2255  specifying twelve grounds on which, he believed,  he was entitled to collateral relief. The  district court denied the motion, and we declined  to issue a certificate of appealability. Evans v.  United States, No. 98-3870 (7th Cir. Apr. 30,  1999) (unpublished order). Meanwhile Evans filed  his motion under Rule 33, seeking a new trial on  the basis of what he called "newly discovered  evidence"--that the prosecution had withheld  until after the end of his trial information that  his lawyer might have used to impeach Melvin  Jones, one of the witnesses against him. Delay in  disclosing this information violated the due  process clause and entitled him to a new trial,  if not to dismissal of the indictment, Evans  insisted. See Brady v. Maryland, 373 U.S. 83  (1963). Evans also contended that he is entitled  to a new trial because the prosecution's use of  witnesses who expected lenience in exchange for  their testimony violated federal law. See United  States v. Singleton, 144 F.3d 1343 (10th Cir.  1998), reversed en banc, 165 F.3d 1297 (1999),  and disapproved by United States v. Condon, 170  F.3d 687 (7th Cir. 1999). Evans had tried to add  the Brady claim to his sec.2255 proceeding, but  the district judge declined to allow him to amend  his motion; the Singleton claim was new. But both  the Brady claim and the Singleton claim readily  could have been presented under sec.2255. Both  fit the description in sec.2255 para.1


6
A prisoner in custody under sentence of a court  established by Act of Congress claiming the right  to be released upon the ground that the sentence  was imposed in violation of the Constitution or  laws of the United States, or that the court was  without jurisdiction to impose such sentence, or  that the sentence was in excess of the maximum  authorized by law, or is otherwise subject to  collateral attack, may move the court which  imposed the sentence to vacate, set aside or  correct the sentence.


7
If a motion within the scope of sec.2255 para.1  is the kind of "motion" to which sec.2255 para.8  refers, then Evans's motion was a second or  successive collateral attack requiring this  court's prior approval. Without considering the  possibility that he was looking at a second  collateral attack, the district judge denied  Evans's motion on the merits (and redundantly  held that it was untimely). When Evans sought  leave to proceed on appeal in forma pauperis, we  directed the parties to file memoranda addressing  the question whether the district judge had  jurisdiction to entertain the motion at all.  These memoranda have been received, and the case  is ready for decision.


8
It is awfully hard to see how the "motion" to  which sec.2255 para.8 refers could be anything  other than a motion fitting the description of  para.1. This is how we understood matters in  Romandine v. United States, 206 F.3d 731, 734-36  (7th Cir. 2000), and Valona v. United States, 138  F.3d 693, 694 (7th Cir. 1998); the approach those  opinions take is generalizable: any motion filed  after the expiration of the time for direct  appeal, and invoking grounds mentioned in  sec.2255 para.1, is a collateral attack for  purposes of para.8. The qualification relating to  the time for appeal is important, because issues  presented to the district court in time for  inclusion on direct appeal are not collateral  attacks on a judgment. Reading sec.2255 para.8 in  this manner treats likes alike. Any other  approach enables prisoners to defeat the AEDPA by  changing the captions on their papers and  proceeding as if the Act did not exist. But, as  Romandine added, a corollary is that proceedings  that do not meet the description of sec.2255  para.1 are not motions for purposes of para.8,  even if they otherwise walk and talk like  collateral attacks. 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. We know from  Herrera v. Collins, 506 U.S. 390 (1993), that a  conviction does not violate the Constitution (or  become otherwise subject to collateral attack)  just because newly discovered evidence implies  that the defendant is innocent. See also Guinan  v. United States, 6 F.3d 468, 470-71 (7th Cir.  1993) (observing that a Rule 33 motion is  designed to rectify factual injustice, not to  correct legal error). The Constitution guarantees  a trial designed to separate the guilty from the  innocent; it does not ensure that these  procedures always work. Like most states, the  federal government provides a window during which  prisoners may present newly discovered evidence,  leading to new trials in the interest of justice,  even though the Constitution does not require  this procedure. The only significance of newly  discovered evidence for genuine collateral  attacks, Herrera holds, is that


9
a petitioner otherwise subject to defenses of  abusive or successive use of the writ may have  his federal constitutional claim considered on  the merits if he makes a proper showing of actual  innocence. This rule, or fundamental miscarriage  of justice exception, is grounded in the  "equitable discretion" of habeas courts to see  that federal constitutional errors do not result  in the incarceration of innocent persons. But  this body of our habeas jurisprudence makes clear  that a claim of "actual innocence" is not itself  a constitutional claim, but instead a gateway  through which a habeas petitioner must pass to  have his otherwise barred constitutional claim  considered on the merits.


10
506 U.S. at 404 (citation omitted). The AEDPA  supersedes the common-law equitable discretion to  which Herrera refers but likewise allows actual  innocence to open the door to a successive  collateral attack. See sec.2244(b)(2)(B),  sec.2255 para.8(1).


11
Because a claim of innocence based on newly  discovered evidence is not itself a ground of  collateral attack, the AEDPA does not affect the  operation of (or three-year window to file) bona  fide motions under Rule 33. A defendant whose  argument is not that newly discovered evidence  supports a claim of innocence, but instead that  he has new evidence of a constitutional violation  or other ground of collateral attack, is making  a motion under sec.2255 (or sec.2254) no matter  what caption he puts on the document. This is the  burden of Evans's motion. He claimed to have  evidence of a Brady problem, not evidence  demonstrating his innocence. (What is more, his  evidence suggesting a Brady problem was not  "newly discovered." Evans's lawyer learned after  trial, but before sentencing, that Melvin Jones  was a drug user and was featured in a police  report as a suspect in an armed robbery; these  matters might have been useful in impeachment,  and thus set the stage for a Brady argument, but  by the time Evans had been sentenced they were no  longer "newly discovered.") The panel decision in  Singleton may have been "newly discovered" but it  was not "evidence" and again was only  tangentially related to innocence. Both the Brady  claim and the Singleton claim are classic grounds  of collateral attack. They fall within sec.2255  para.1 and, because Evans already has had a  collateral attack, they may be pursued only with  advance appellate approval. The district court  accordingly lacked jurisdiction to entertain  Evans's motion.


12
One caveat is in order. Our case is easy  because Evans filed a motion explicitly under  sec.2255, then tried to evade the limitations on  successive motions by placing a Rule 33 caption  on his next collateral attack. Suppose the  sequence had been reversed: a motion nominally  under Rule 33 but actually making Brady and  Singleton claims, followed by an avowed sec.2255  motion. Should the district judge recharacterize  the Rule 33 motion in retrospect as one under  sec.2255 and then dismiss the express sec.2255  motion? Like at least two other circuits, see  United States v. Miller, 197 F.3d 644 (3d Cir.  1999); Adams v. United States, 155 F.3d 582 (2d  Cir. 1998), we have been reluctant to allow  district judges to convert one kind of motion  into another with different procedural effects  under the AEDPA and its cousin the Prison  Litigation Reform Act. See, e.g., Valona, 138  F.3d at 694-95; Moore v. Pemberton, 110 F.3d 22  (7th Cir. 1997); Copus v. Edgerton, 96 F.3d 1038  (7th Cir. 1996). When a prisoner who has yet to  file a motion under sec.2255 invokes Rule 33 but  presents issues substantively within sec.2255  para.1, the district judge should alert the  movant that this can preclude any later  collateral proceedings and ask whether the  prisoner wishes to withdraw the claim (or add any  other arguments for collateral relief). We  postpone, until the occasion requires, deciding  what should happen if the district judge fails to  deliver that advice, denies the Rule 33 motion on  the merits, and the prisoner then files what  would otherwise be a timely sec.2255 petition.


13
The judgment of the district court is vacated,  and the case is remanded with instructions to  dismiss for want of jurisdiction. Nu ez v. United  States, 96 F.3d 990 (7th Cir. 1996). Treating  Evans's papers as an implied application for  leave to commence a second collateral attack, we  deny the application. Evans does not point to any  new rule of constitutional law made retroactive  by the Supreme Court, sec.2255 para.8(2), and  although he uses the phrase "newly discovered  evidence" he does not contend that this is "newly  discovered evidence that, if proven and viewed in  light of the evidence as a whole, would be  sufficient to establish by clear and convincing  evidence that no reasonable factfinder would have  found [him] guilty of the offense", sec.2255  para.8(1). Evans therefore is not entitled to a  second round of collateral review.

