In the
United States Court of Appeals
For the Seventh Circuit

No. 99-1187

United States of America,

Plaintiff-Appellee,

v.

Marcus O. Evans,

Defendant-Appellant.



Appeal from the United States District Court
for the Northern District of Illinois, Western Division.
No. 93 CR 20024--Philip G. Reinhard, Judge.


Submitted July 28, 2000--Decided August 18, 2000



  Before Posner, Easterbrook, and Diane P. Wood, Circuit
Judges.

  Easterbrook, Circuit Judge. 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.

  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:

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.

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.

  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:

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.

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.
  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

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.

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).

  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.

  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.

  The judgment of the district court is vacated,
and the case is remanded with instructions to
dismiss for want of jurisdiction. Nunez 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.
