206 F.3d 731 (7th Cir. 2000)
Ronald Romandine,    Petitioner-Appellant,v.United States of America,    Respondent-Appellee.
No. 99-1940
In the  United States Court of Appeals  For the Seventh Circuit
Argued January 18, 2000Decided March 14,  2000

Appeal from the United States District Court  for the Eastern District of Wisconsin.  No. 97-C-430 (93-CR-185)--C.N. Clevert, Judge.
Before Easterbrook, Kanne, and Diane P.  Wood, Circuit Judges.
Easterbrook, Circuit Judge.


1
Ronald  Romandine is a prisoner of Wisconsin,  serving time for racketeering and theft  offenses. He also has a federal  conviction for credit card fraud. 18  U.S.C. sec.1029(a)(2). The state and  federal offenses are unrelated.  Romandine's federal sentence, imposed in  January 1994, will commence after his  state sentence ends--or so the sentencing  judge declared. But Romandine contends in  this proceeding under 28 U.S.C. sec.2255  that a federal judge lacks authority to  make a sentence consecutive to a state  sentence that is not in existence when  the federal sentence is imposed. His  petition backfired: the district court  increased Romandine's sentence by five  months. Romandine's appeal protests both  the original sentence and the increase.  The chronology is sufficiently complex  and important that we set out the  sequence.


2
1-24-94:  Federal sentence  pronounced: 10 months' imprisonment,  $30,576.40 restitution, and three  years' supervised release.


3
3-11-94:  State sentence pronounced:  15 years' imprisonment, followed by  10 years' probation.


4
1-30-95:  Romandine files a pro se  motion asking the district judge to  clarify whether federal sentence is  consecutive to or concurrent with  the state sentence.


5
2-7-95:  Chief Judge Evans (as he was  before appointment to this court)  enters an order stating that the  sentences are consecutive.


6
2-21-95:  Romandine files a pro se  "Motion to Reconsider Sentencing" on  the ground that the 15-year state  sentence exceeds the 10-year term  that, Romandine asserts, both sides  in the federal proceedings expected.  Romandine also contends that his  payment of half the ordered  restitution, his wife's illness, and  his desire to help raise his eight-  year-old child, justify a "grant in  the form of sentence modification"  because "the sentencing court's  original intent was violated by what  occurred" in state court.


7
3-17-95:  Chief Judge Evans enters an  order denying the motion.


8
5-2-95:  Romandine (represented by  counsel from here on) files another  "motion for clarification" asserting  that "the Court specifically  retained the option of giving the  Defendant consideration of the final  five months of the sentence based on  the future" state sentence.


9
5-18-95:  Order by Chief Judge Evans:  "At the time of sentencing, I  reserved the issue of whether a  'split sentence' should be imposed,  pending resolution of Mr.  Romandine's other legal matters in  Oconto County, Wisconsin. Mr.  Romandine has now petitioned for a  clarification of the issue. Based on  the 15 year prison sentence imposed  in the state case on March 11, 1994,  for conduct unrelated to this case,  I have concluded that a split  sentence is appropriate.  Accordingly, IT IS HEREBY ORDERED  that Mr. Romandine's federal  sentence in this case be modified to  permit him to serve the last five  months of the sentence in a  community confinement setting."


10
4-14-97:  The United States and  Romandine file a "stipulation" that  the sentence imposed on January 24,  1994, has been served. According to  this document the order of March 17,  1995, "was legally in error in so  far as it modified a sentence  previously imposed so that its  service is to be consecutive" and,  as a result, Romandine's "10 month  sentence of incarceration has been  satisfied by virtue of his  uninterrupted incarceration since"  March 1994.


11
4-18-97:  District Judge Clevert (to  whom the case was reassigned) enters  an order treating the "stipulation"  as a motion to modify the sentence,  which as so construed is denied on  the ground that a district court  lacks authority to modify a sentence  years after its imposition.


12
4-22-97:  Romandine files his  petition under sec.2255, contending  that his federal sentence must be  concurrent to the state sentence  (and hence already has been served)  because a federal judge cannot make  a sentence consecutive to a state  sentence yet to be imposed.


13
12-30-98:  District Judge Clevert  enters an order denying Romandine's  petition but sua sponte vacating the  judgment of May 18, 1995, and  reinstating the original sentence of  January 24, 1994.


14
4-8-99:  The district judge issues a  certificate of appealability  identifying as the issue for appeal:  "whether a sentencing federal court  may impose a sentence which will run  consecutively to a state sentence  ordered a month after the federal  proceeding."


15
Because a certificate of appealability  is essential to a prisoner's appeal from  an adverse decision in an action under  sec.2255, see 28 U.S.C.  sec.2253(c)(1)(B), Fed. R. App. P.  22(b)(1), we start with the certificate  that Judge Clevert issued. Section  2253(c)(2) provides that a certificate  "may issue under paragraph (1) only if  the applicant has made a substantial  showing of the denial of a constitutional  right." Section 2253(c)(3) adds that the  certificate must "indicate which specific  issue or issues satisfy the showing  required by paragraph (2)." Yet the  certificate issued in this case does not  identify any constitutional issue. A  federal court's authority to choose  between concurrent and consecutive terms  depends on federal statutes, not on the  Constitution. Compounding matters,  Romandine ignored the certificate of  appealability and briefed two different  issues: whether a district judge may  modify a sentence to make it consecutive  (which supposes, contrary to the premise  of the certificate and the order of  February 7, 1995, that the original  federal sentence ran concurrently to the  state sentence) and whether the district  court was authorized to reinstate the  original straight sentence of  imprisonment. If the United States had  brought these matters to our attention--  either by motion to dismiss the appeal  for want of a proper certificate, or by  motion to strike Romandine's brief for  its failure to address the only issue the  district judge certified--we would have  been inclined to dismiss the appeal. But  the United States chose to litigate on  Romandine's terms. Young v. United  States, 124 F.3d 794, 798-99 (7th Cir.  1997), holds that when the district judge  and the parties all disregard  sec.2253(c)(2), and the case is fully  briefed on statutory questions, we will  proceed to decide them: the United States  has forfeited the benefits of sec.2253.


16
Another procedural matter poses a  potentially greater hurdle, because  unlike sec.2253(c)(2) it concerns the  district court's authority to act:  whether the sec.2255 petition must be  treated as a second or successive  collateral attack. If the answer is yes,  then prior approval by this court was es  sential, 28 U.S.C. sec.sec. 2244(b), 2255  para.8, and as approval was neither  sought nor given the district court  lacked subject-matter jurisdiction. See  Nunez v. United States, 96 F.3d 990 (7th  Cir. 1996). Before filing his avowed  sec.2255 petition, Romandine had filed  four earlier requests (one jointly with  the prosecutor) for modification or  "clarification" of his sentence. None of  these stated a legal basis, but a  prisoner can't file multiple collateral  attacks just by omitting the designation  "sec.2255" from a motion substantively  under that section. United States v.  Woods, 169 F.3d 1077 (7th Cir. 1999),  drives that point home by holding that a  motion nominally under Fed. R. Crim. P.  33 must be treated as a petition under  sec.2255, because it made the arguments  and sought the relief provided by  sec.2255. See also, e.g., Banks v. United  States, 167 F.3d 1082 (7th Cir. 1999).  When a prisoner files a motion under  sec.2255 these days, the district court  swiftly should determine whether it is an  initial motion. Yet the district judge  did not do this, and at oral argument the  Assistant United States Attorney conceded  that it had not occurred to him, either,  to inquire how the prior four post-  judgment motions should be classified.


17
It is hard to see what rule or statute  Romandine could have been invoking,  except for sec.2255. He wanted a shorter  sentence, but the Sentencing Reform Act  of 1984 dramatically curtails a districtjudge's power to revise a sentence after  its imposition. Until the 1984 Act (which  took effect on November 1, 1987), Fed. R.  Crim. P. 35 allowed a district judge to  reduce a sentence, for almost any reason,  within 120 days after each of several  events, including the original sentencing  and the completion of the appellate  process. A district judge could have used  this power to reduce Romandine's sentence  on account of the unexpectedly long term  meted out by the state court. But even  had pre-1984 law continued into the  1990s, that power would have expired long  before Romandine made his first request--  and the 120-day period could not be  extended. See United States v. Addonizio,  442 U.S. 178, 189 (1979); United States  v. Kimberlin, 776 F.2d 1344 (7th Cir.  1985); Gaertner v. United States, 763  F.2d 787 (7th Cir. 1985); Fed. R. Crim.  P. 45(b). With the advent of the  Sentencing Guidelines, moreover, the 120-  day window was closed. Guidelines  sentences are determinate. Today Rule 35  allows only three exceptions. A sentence  may be revised on remand from a court of  appeals when necessary to correct legal  errors (Rule 35(a)); a sentence may be  reduced to reward post-sentencing  substantial assistance to the prosecution  (Rule 35(b)); and a district court,  "acting within 7 days after the  imposition of sentence, may correct a  sentence that was imposed as a result of  arithmetical, technical, or other clear  error." Rule 35(c). Romandine thus could  not seek a lower sentence under Rule 35.  It is tempting, therefore, to say that  Romandine's requests must have been under  sec.2255, because they could not have  been under anything else.


18
Still, that Romandine's requests could  not have been based on anything in the  Rules of Criminal Procedure does not show  that they did rest on sec.2255. Maybe  they were just hot air. A motion  imploring the judge to disregard Rule 35  and the Sentencing Guidelines, and to  reduce the sentence for no reason other  than that the defendant prefers a short  sentence to a long one, does not rest on  any body of law. Section 2255 para.1  authorizes a motion by a person "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". Did any of Romandine's four  requests come within this language?  Certainly not the first, which asked the  judge to clarify Romandine's  understanding of the sentence but did not  seek its alteration. The next two  requested lower sentences, but not on any  of the grounds mentioned in sec.2255. The  "motion for reconsideration" filed on  February 21, 1995, came the closest. As  in Addonizio, a prisoner implored a judge  to reduce a sentence on the theory that  subsequent developments had defeated the  judge's expectations about how long the  defendant would remain in prison.  Addonizio brought his motion under  sec.2255, but the Supreme Court held that  sec.2255 did not authorize any such  theory of relief. Doubtless a prisoner's  collateral attack may fall under sec.2255  even though not based on a good theory--  indeed, even though the Supreme Court  rejected the theory before the petition  was filed--but the problem in both  Addonizio and Romandine's case is that  when a defendant requests a break because  of events after the judgment that affect  the judge's "expectations," it is  impossible to characterize the request as  a collateral attack on the judgment. It  is, Addonizio held, just wishful  thinking. That is also a fair description  of Romandine's filings in February and  May 1995. The district court should have  rejected them out of hand, and perhaps  would have done so had the United States  reminded it of Addonizio and Rule 35's  time limits. But the United States did  not respond to Romandine's first three  requests, did not move for  reconsideration or take an appeal after  the district judge altered the sentence  in response to the third request, and was  complicit in thefourth. That  "stipulation" nominally sought  modification of the sentence (oddly, of  the original 10-month straight sentence,  rather than the split sentence imposed by  the May 1995 order) but actually  requested not a modification of the  judgment but a declaration that the  sentence had been served. Section 2255  does not provide for such declarations--  and this turns out to be an additional  wrinkle affecting application of the  successive-petition rule.


19
Even if it were best to understand one  of Romandine's first four requests as a  collateral attack on his sentence, we  would be reluctant to dismiss his latest  petition--because we very much doubt that  Romandine's current petition is based on  sec.2255. He did not seek a change or  reduction in the sentence so much as he  sought a declaration that he has  completed its service. In other words,  Romandine wants time already spent in  state custody credited against his  federal sentence. Requests for sentence  credit, or for recalculation of time yet  to serve, do not come under sec.2255.  They must be presented to the Attorney  General (or her delegate, the Bureau of  Prisons), and adverse decisions may be  reviewed by an action under 28 U.S.C.  sec.2241, or perhaps a suit under the  Administrative Procedure Act (to the  extent 28 U.S.C. sec.3625 permits). See  Reno v. Koray, 515 U.S. 50 (1995); United  States v. Wilson, 503 U.S. 329 (1992);  cf. Valona v. United States Parole  Commission, 165 F.3d 508 (7th Cir. 1998).  Recent limitations on successive motions  do not apply to sec.2241 or the apa. See  Felker v. Turpin, 518 U.S. 651 (1996);  Valona v. United States, 138 F.3d 693  (7th Cir. 1998). The United States failed  to point this out to the district court,  which forfeits any opportunity to obtain  dismissal for failure to exhaust  administrative remedies. Nor did the  United States say that the action should  be dismissed for failure to name the  proper respondent (the Attorney General).


20
We are conscious that these efforts to  determine the right characterization of  various filings are in tension with the  principle that district courts should  treat prisoners' papers as what they  purport to be, rather than converting  suits from one kind to another--from  sec.2241 to sec.2255, or from sec.1983  damages actions to collateral attacks.  See Valona v. United States, 138 F.3d 693  (7th Cir. 1998); Moore v. Pemberton, 110  F.3d 22 (7th Cir. 1997); Copus v.  Edgerton, 96 F.3d 1038 (7th Cir. 1996).  Like other circuits, e.g., United States  v. Miller, 197 F.3d 644 (3d Cir. 1999);  Adams v. United States, 155 F.3d 582 (2d  Cir. 1998), we have recognized that  converting a case from one kind of action  to another can have consequences that the  prisoner may not have anticipated.  Reclassifying an action for civil damages  as a collateral attack may bring the  prohibition of successive petitions into  play; the opposite conversion may require  the prisoner's trust account to be tapped  for filing fees and lead to problems  under Heck v. Humphrey, 512 U.S. 477  (1994). But there is no alternative to  examining the substance of a pleading if  the successive-petitions rule is to be  enforced. See Johnson v. United States,  196 F.3d 802 (7th Cir. 1999) (describing  many kinds of recharacterization). None  of Romandine's filings has been converted  procedurally. What we have done--what is  essential under sec.sec. 2244(b) and 2255  para.8--is to ask whether two or more of  Romandine's filings meet the description  of sec.2255 para.1. The answer is no, so  the current filing is not  jurisdictionally precluded by Romandine's  failure to seek prior appellate leave.  Thus we proceed to the merits.


21
Judge Clevert was entirely right to  conclude that the sentence reduction of  May 18, 1995, was unlawful. It would have  been unlawful before the Sentencing  Reform Act, for reasons given in  Addonizio, Kimberlin, and Gaertner. Under  current law, the district judge has even  less discretion. The judge's apparent  beliefthat he could retain control over  the sentence indefinitely just by  announcing at sentencing that he reserves  the right to alter it cannot be  reconciled with Fed. R. Crim. P. 45(b),  which forbids the extension of the time  limits in Rule 35. Seven days after  Romandine's sentence was imposed was the  limit of the district judge's alteration  power--and then he could modify the  sentence only to "correct a sentence that  was imposed as a result of arithmetical,  technical, or other clear error", none of  which occurred in Romandine's case. (Rule  36 permits a district court to correct  clerical errors at any time, but no one  thinks that either the original sentence  or the modification in May 1995 was a  "clerical mistake.")


22
For the same reason that the sentence  reduction of May 18, 1995, was unlawful,  the sentence increase of December 30,  1998, was unlawful. Under the version of  Rule 35(a) that preceded the Sentencing  Reform Act, a district judge could  "correct an illegal sentence at any  time". District judges no longer possess  that power. Today an illegal sentence may  be corrected only if the aggrieved party  appeals and the court of appeals remands  for that purpose under Rule 35(a), or if  the error is so grave that relief becomes  available under sec.2255. The United  States could have taken an appeal from  the order of May 18, 1995, and had this  been done we would have reversed for  reasons that by now are obvious. But the  United States did not appeal, or even ask  the district court to reconsider its  decision. At oral argument, the Assistant  United States Attorney (who has handled  Romandine's case since the indictment in  1993) revealed that his office did not  notify the Criminal Division; apparently  prosecutors in the Eastern District of  Wisconsin are under the misapprehension  that the Criminal Division (and thus the  Solicitor General) need not be alerted to  an adverse decision unless the United  States Attorney wants to appeal. Proper  implementation of the Department of  Justice's rules, see 28 C.F.R.  sec.0.20(b); United States Attorneys'  Manual sec.2-2.110, might have avoided  the problem now presented. But the past  cannot be rewritten. When the time for  appeal expired, so did any possibility of  correcting the error.


23
Well, then, has the sentence expired  along with the time to appeal?  Romandine's premise is that a district  judge may not impose a sentence that will  run consecutively to a state sentence not  then in existence. This supposes that the  effective sentence is the one pronounced  on January 24, 1994. But that is not so;  Romandine was resentenced on May 18,  1995, and again in December 1998, well  after the state sentence. Our order  vacating the 1998 sentence restores the  1995 sentence, which responds directly to  the state sentence. Romandine concedes  that a federal sentence may run  consecutively to a state sentence already  in existence, so he has no complaint.


24
Romandine's concession is sound. "[I]f  a term of imprisonment is imposed on a  defendant who is already subject to an  undischarged term of imprisonment, the  terms may run concurrently or  consecutively". 18 U.S.C. sec.3584(a). By  the time of his resentencing in May 1995,  Romandine was "already subject to an  undischarged term of imprisonment". Even  if we were to treat the sentence of  January 1994 as the one now in effect,  however, Romandine would have nothing to  gain. Neither sec.3584(a) nor any other  statute of which we are aware authorizes  a federal judge to declare that his  sentence must run consecutively to some  sentence that may be imposed in the  future. Thus the orders of February 7,  1995, and March 17, 1995, have no  discernible source of legal support (and  the orders themselves cite none). But  sentences may well run consecutively by  force of law; indeed, the subject may  simply be out of the judge's hands. The  final sentence of sec.3584(a) reads:  "Multiple terms of imprisonment imposed  at different times run consecutively  unless the court orders that the terms  are to run concurrently." A judgecannot  make his sentence concurrent to  nonexistent sentences that some other  tribunal may or may not impose; thus the  sentence is automatically consecutive.


25
The next judge in line may make service  concurrent in practical effect. For  example, the state judge could have given  Romandine a discount of 10 months on  account of his undischarged federal  sentence. Likewise the Attorney General  could make the federal sentence run  concurrently by designating the state  prison as a place of federal confinement,  so that the clock would start to tick on  the federal sentence. "A sentence to a  term of imprisonment commences on the  date the defendant is received in custody  . . . [at] the official detention  facility at which the sentence is to be  served." 18 U.S.C. sec.3585(a). All the  Attorney General has to do is designate  the state prison as "the official  detention facility at which the sentence  is to be served." See 18 U.S.C.  sec.3621(b); United States v. Hill, 48  F.3d 228, 234 (7th Cir. 1995). By  refusing to make this designation, and by  instead lodging a detainer with state  officials, the Attorney General can  ensure consecutive service (although the  Attorney General could not prevent the  state from releasing its prisoner early  because of the state's anticipation that  federal time lay ahead). A legal error  one way or the other in the exercise of  this power could be reviewed under  sec.2241. But Romandine, who has never  asked the Attorney General to designate  the state prison as a place of federal  confinement, is not well situated to  protest--and we do not perceive any legal  rule that would require the Attorney  General to act favorably on such a  request. If the Attorney General shares  the view expressed by an Assistant United  States Attorney in the "stipulation" of  April 14, 1997, then she is free to  declare that Romandine's federal time has  been served or to instruct the Director  of the Bureau of Prisons to file a motion  under sec.3582(c); but the United States  Attorney's Office apparently thinks the  "stipulation" a blunder, for its brief on  this appeal disavows the position it took  in 1997.


26
Other courts of appeals are divided on  the question whether a district court may  require its sentence to be served  consecutively to a state sentence that  will be imposed in the future. See United  States v. Brown, 920 F.2d 1212, 1217 (5th  Cir. 1991) (yes); United States v.  Quintero, 157 F.3d 1038 (6th Cir. 1998)  (no); United States v. Clayton, 927 F.2d  491 (9th Cir. 1991) (no); United States  v. Williams, 46 F.3d 57 (10th Cir. 1995)  (yes); United States v. Ballard, 6 F.3d  1502, 1510 (11th Cir. 1993) (yes). We  join the circuits that answer "no,"  because sec.3584(a) allows the district  judge to specify the sequence of service  only when sentences are imposed at the  same time, or the other sentence is "an  undischarged term of imprisonment" to  which the defendant is "already subject".  But the answer does not matter, and the  conflict is illusory, for reasons we have  given: the final sentence of sec.3584(a)  makes the federal sentence presumptively  consecutive in all unprovided-for cases,  and the effective decision then is made  by the Attorney General (or the state  judge) rather than the federal judge. We  disagree with the reasoning of McCarthy  v. Doe, 146 F.3d 118, 121-22 (2d Cir.  1998), to the extent the second circuit  believes that the final sentence of  sec.3584(a) is limited to those  situations also covered by the first  sentence (that is, to defendants serving  undischarged terms, or other terms  imposed on the same occasion). Limiting  the final sentence in this way makes it  surplusage. It is best read as covering  all situations not otherwise provided  for. Still, even this disagreement is  irrelevant, for the state judge and the  Attorney General, exercising power under  sec.3585(a), have the effective last  word. Thus we agree with McCarthy's  bottom line. The Attorney General has  discretion, which she must exercise  without supposing that the district  judge's views or the final sentence of  sec.3585(a) forbid concurrent service.  Accord, Barden v. Keohane, 921 F.2d 476  (3d Cir. 1990).Romandine must serve his  federal sentence after his state sentence  ends, unless he can persuade the Attorney  General to start the federal clock while  he is still in state custody.


27
Vacated and Remanded for Restoration  of the May 1995 Sentence

