                            In the
 United States Court of Appeals
              For the Seventh Circuit
                         ____________

No. 03-3334
UNITED STATES OF AMERICA,
                                              Plaintiff-Appellee,
                               v.

MARIO HOWARD LLOYD,
                                          Defendant-Appellant.
                         ____________
       Appeal from the United States District Court for the
         Northern District of Illinois, Eastern Division.
           No. 89 CR 427—Marvin E. Aspen, Judge.
                         ____________
  SUBMITTED JANUARY 21, 2005—DECIDED MARCH 1, 2005
                    ____________


 Before EASTERBROOK, MANION, and ROVNER, Circuit
Judges.
  EASTERBROOK, Circuit Judge. More than a decade ago,
Mario Lloyd was convicted of multiple federal charges and
sentenced to 15 terms of life imprisonment. We affirmed his
convictions and those of several confederates. See United
States v. Walker, 25 F.3d 540 (7th Cir. 1994); United States
v. Soto-Rodriguez, 7 F.3d 96 (7th Cir. 1993). On collateral
review under 28 U.S.C. §2255, the district judge concluded
that the correct number of life sentences should have been
5 rather than 15, and Lloyd was resentenced accordingly,
see United States v. Lloyd, 983 F. Supp. 738 (N.D. Ill.
1997)—though the change made no practical difference, for
1 life sentence has the same effect as 100. (Lloyd does not
2                                               No. 03-3334

profess concern about whether additional life sentences
would affect him following reincarnation.)
  In 2003 Lloyd asked the district court to reduce his
sentence under 18 U.S.C. §3582(c)(2), which permits a court
to do this when the Sentencing Commission has reduced the
applicable Guideline range and made the change retroac-
tive. See 28 U.S.C. §994(o). Lloyd did not rely on any post-
1997 change, however; instead he contended that his
sentences had been unlawful when imposed, because the
district judge had miscalculated his relevant conduct and
because the Continuing Criminal Enterprise statute, 21
U.S.C. §848, under which he had been sentenced, did not
apply to his offenses. This led the United States to contend
that Lloyd had launched a second collateral attack, forbid-
den by 28 U.S.C. §2255 ¶8 (incorporating 28 U.S.C.
§2244(b)) because this court had not approved it in advance.
The district court, however, did not address this contention
and entered an order that reads in full: “Petitioner’s motion
for sentence modification pursuant to §3582(c)(2) (767-1) is
denied.” This unexplained resolution violates Circuit Rule
50, which requires district judges to give reasons for all
appealable orders. And, if the United States is right about
the nature of Lloyd’s motion, the order is a substantive
blunder as well, for the only proper disposition would have
been dismissal for lack of jurisdiction. See Nuñez v. United
States, 96 F.3d 990 (7th Cir. 1996).
  When the time came for the United States to tender a
brief, it filed instead a motion to dismiss the appeal. The
gist of its argument is that Lloyd lacked our permission
to commence a second collateral attack. What that has to do
with the propriety of an appeal is a mystery. The district
court made a final decision, and Lloyd filed a timely notice
of appeal. What more is necessary to appellate jurisdiction?
Lloyd is entitled to appellate review to test whether the
United States is right about the characterization of his
motion in the district court (or whether, as the district
No. 03-3334                                                 3

judge thought, it is defective for some other reason). Instead
of asking us to dismiss Lloyd’s appeal, the United States
should have asked us to vacate the district court’s decision
and remand with instructions to dismiss for want of
jurisdiction. As we must consider jurisdictional questions on
our own, even though the prosecutor has asked for the
wrong relief, we turn to that subject.
  Although Lloyd captioned his papers in the district
court as a request for a sentence reduction under
§3582(c)(2), his request is unrelated to that statute. Many
decisions in this circuit hold that substance controls
over the caption.
    Any motion filed in the district court that imposed
    the sentence, and substantively within the scope of
    §2255 ¶1, is a motion under §2255, no matter what
    title the prisoner plasters on the cover. See, e.g.,
    Ramunno v. United States, 264 F.3d 723 (7th Cir.
    2001). Call it a motion for a new trial, arrest of
    judgment, mandamus, prohibition, coram nobis,
    coram vobis, audita querela, certiorari, capias,
    habeas corpus, ejectment, quare impedit, bill of
    review, writ of error, or an application for a Get-
    Out-of-Jail Card; the name makes no difference. It
    is substance that controls. See Thurman v.
    Gramley, 97 F.3d 185, 186-87 (7th Cir. 1996).
Melton v. United States, 359 F.3d 855, 857 (7th Cir. 2004)
(emphasis in original). Lloyd’s motion advanced the kind of
arguments and sought the kind of relief covered by §2255
¶1. It therefore was a collateral attack, and because we had
not granted permission for its commencement the district
court was obliged to dismiss it for lack of jurisdiction.
Although a miscaptioned initial collateral attack does not
count for purposes of §2244(b) and §2255 ¶8 unless the
district judge alerts the prisoner that it will use up the one
allowed as of right, see Castro v. United States, 540 U.S.
4                                                 No. 03-3334

375 (2003), all later collateral attacks must be seen for what
they are. A captioning error in a successive collateral
proceeding cannot cost the prisoner any legal entitlement,
so Castro’s warn-and-allow-withdrawal approach does not
apply. See Melton, 359 F.3d at 857.
  All of this is straightforward, so it is puzzling that both
the district court and the prosecutor have mishandled the
situation. What led us to issue a published opinion, how-
ever, is not these oversights but the litigation strategy
adopted by the United States. It is a strategy that is all
too common, has been disapproved, see Ramos v. Ashcroft,
371 F.3d 948, 949-50 (7th Cir. 2004), yet continues. The
strategy is this: instead of filing a brief on the due date, the
appellee files something else, such as a motion to dismiss.
The goal and often the effect is to obtain a self-help exten-
sion of time even though the court would be unlikely to
grant an extension if one were requested openly.
   It also creates busywork for the court and its staff. One of
the prosecutor’s motions (to defer briefing while the motion
to dismiss was under advisement) went to a staff attorney
and then to a motions judge; several orders were entered
(including one directing Lloyd to respond); next the motion
to dismiss and response were routed to a different motions
judge (the identity of the motions judge changes weekly),
who had to convene a three-judge motions panel to rule on
the dispositive motion. Because the United States’ position
is frivolous (it does not begin to demonstrate that this court
lacks jurisdiction), the normal result would have been an
order denying the motion. Next the United States would
have filed a brief, following several months’ delay while the
motions were kicking around inside the court, and the
appeal would have been submitted to another panel. By
then seven appellate judges (plus two or three staff attor-
neys) could have become involved in three waves of motions
and briefs. And for what? Just because one attorney let an
No. 03-3334                                                  5

appeal get too close to a briefing deadline and decided to file
a three-page motion in lieu of a ten-page brief?
   Every brief must contain a jurisdictional section, where
any problems with our jurisdiction could have been noted.
A separate motion to dismiss was unnecessary. But instead
of waiting for the brief to flag a jurisdictional problem,
counsel should call it to the court’s attention at the outset.
Circuit Rule 3(c)(1) requires each appellant to file a docket-
ing statement containing jurisdictional particulars. Lloyd
filed his on September 15, 2003. Rule 3(c)(1) adds: “If the
docketing statement is not complete and correct, the
appellee must provide a complete one to the court of appeals
clerk within 14 days after the date of the filing of the
appellant’s docketing statement.” That would have been
September 29, 2003. The United States let that date pass in
silence and did not say “boo” about appellate jurisdiction
until November 9, 2004, when it filed the motion to dismiss
Lloyd’s appeal. Why didn’t the United States make this
point a year earlier?
   Thus we repeat what we said in Ramos: “If events jus-
tify a last-minute motion concerning jurisdiction, venue,
sanctions, or any other subject, then that motion may
accompany the brief; a motion is not a substitute for a
brief.” 371 F.3d at 950 (emphasis in original). Briefs
must be filed when due, and jurisdictional objections should
be made at the outset of the appeal, as Circuit Rule 3(c)(1)
contemplates. We trust that all litigants— especially
institutional ones such as the Department of Justice—will
conform their practice to this court’s rules.
  The “Motion to Dismiss Appeal” is denied. The decision of
the district court is vacated, and the matter is remanded
with instructions to dismiss for lack of subject-matter
jurisdiction. We have treated Lloyd’s brief as an implied
request for permission to commence a second collateral
attack. Because none of the criteria for that step, see
§2244(b)(2), has been satisfied, this request is denied.
6                                        No. 03-3334

A true Copy:
      Teste:

                   ________________________________
                   Clerk of the United States Court of
                     Appeals for the Seventh Circuit




               USCA-02-C-0072—3-1-05
