In the

United States Court of Appeals

For the Seventh Circuit

No. 01-2006

GEORGE HERMAN RUTH, 

Petitioner-Appellant,

v.

UNITED STATES OF AMERICA,

Respondent-Appellee.

Appeal from the United States District Court 

for the Southern District of Indiana, Indianapolis Division.

No. IP 01-138-C-T/F--John D. Tinder, Judge. 

Submitted June 22, 2001--Decided September 12, 2001

 Before Manion, Diane P. Wood, and Williams,

Circuit Judges.

 Diane P. Wood, Circuit Judge. George Ruth

filed a motion under 28 U.S.C. sec. 2255

collaterally attacking his 120-month

prison sentence, imposed in 1994 for

possession of phenylacetic acid with

intent to manufacture methamphetamine.

The district court determined that Ruth’s

prior motion for a new trial under

Federal Rule of Criminal Procedure 33

constituted a collateral attack within

the scope of sec. 2255 para. 1, and thus

that his current sec. 2255 motion was

successive. Because Ruth lacked

permission from this court to file a

successive challenge, the district court

dismissed Ruth’s motion for lack of

jurisdiction. Ruth appeals the dismissal

of his sec. 2255 motion and disputes the

district court’s construction of his

prior Rule 33 motion.

 This case illustrates a point we made in

United States v. Evans, 224 F.3d 670 (7th

Cir. 2000): "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." Id. at 673-

74. As we explain below, Ruth’s prior

motion for a new trial was a bona fide

Rule 33 motion. The district court’s

conclusion that his current sec. 2255
motion constitutes an improper second

collateral attack was therefore

incorrect. Accordingly, we vacate the

district court order and remand the case

for further proceedings.

 Following a 1995 conviction for

possession of phenylacetic acid (PAA)

with intent to manufacture

methamphetamine, Ruth was sentenced to

120 months’ imprisonment and three years’

supervised release. We affirmed his

conviction and sentence on direct appeal.

United States v. Ruth, 65 F.3d 599 (7th

Cir. 1995). In April 1998 Ruth filed a

Rule 33 motion for a new trial based on

newly discovered evidence. At trial the

government had theorized that Ruth had

utilized numerous aliases, including an

allegedly phony company called

Countryside Fragrances, to arrange his

purchases of PAA. Ruth contended that

newly discovered evidence, which he

received following a Freedom of

Information Act request, supported his

argument that Countryside Fragrances was

a legitimate company that existed

independently of him. This new evidence,

he argued, bolstered his claim of

innocence and required a new trial. The

government opposed Ruth’s motion,

claiming that the evidence of his guilt

was overwhelming. In denying Ruth’s

motion, the district court held that the

evidence Ruth offered was merely

cumulative and would not likely lead to

an acquittal if presented at a new trial.

 Earlier this year, Ruth filed a sec.

2255 motion raising an argument under

Apprendi v. New Jersey, 530 U.S. 466

(2000), and asking the district court to

correct his sentence because the amount

of PAA for which he was held responsible

was not included in the indictment. The

district court acknowledged Ruth’s

earlier Rule 33 motion and, citing Evans,

concluded that it "must" be treated as a

sec. 2255 motion. The district court then

determined that it lacked jurisdiction to

hear Ruth’s sec. 2255 motion because he

had not obtained this court’s permission

to file a second or successive collateral

attack and dismissed the motion. See

Nunez v. United States, 96 F.3d 990 (7th

Cir. 1996). 

 Ruth then filed a motion under Federal

Rule of Civil Procedure 59(e) asking the

district court to reconsider its judgment
because, according to Ruth, the court

erred in construing his prior Rule 33

motion as a collateral attack under sec.

2255 para. 1. The district court denied

Ruth’s motion to reconsider because it

believed Ruth’s Rule 33 motion fit the

description of sec. 2255 para. 1. See,

e.g., Evans, 224 F.3d at 672 (holding

that "any post-judgment motion in a

criminal proceeding that fits the

description of sec. 2255 para. 1 is a

motion under sec. 2255"). Ruth renews his

arguments in this court.

 A Rule 33 motion must be considered a

collateral attack for purposes of sec.

2255 para. 8, the provision governing

successive habeas corpus filings, when

the substance of the motion falls within

the scope of sec. 2255 para. 1. Evans,

224 F.3d at 672-73; see also Romandine v.

United States, 206 F.3d 731, 734-35 (7th

Cir. 2000). In Evans, a prisoner who lost

his direct appeal and his first sec. 2255

motion filed a Rule 33 motion seeking a

new trial on the basis of what he

considered to be "newly discovered

evidence." Evans’s motion, however,

revealed a different underlying argument.

His purported "new evidence" was that the

prosecution had failed to disclose

evidence in violation of his due process

rights under Brady v. Maryland, 373 U.S.

83 (1963). Evans also argued that he was

entitled to a new trial because the

prosecution violated federal law by using

witnesses who anticipated lenient

treatment in exchange for their

testimony. Labels to one side, these were

the kinds of arguments contemplated by

sec. 2255 para. 1: the Brady argument

raised a constitutional attack on the

conviction, and the witness argument

rested on statutory grounds. We held that

his motion, properly construed, was a

collateral attack and instructed the

district court to dismiss for lack of

jurisdiction under Nunez.

 In analyzing Evans’s motion and our

prior law concerning successive filings,

we noted that "[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." Evans,

224 F.3d at 673-74. An argument of actual

innocence, based on newly discovered

evidence, does not implicate the
Constitution, Herrera v. Collins, 506

U.S. 390, 400-01 (1993), and so a Rule 33

motion that actually argues innocence,

rather than offers "new evidence of a

constitutional violation or other ground

of collateral attack," is not a sec. 2255

filing.

 The latter kind of motion is what we

have here. Ruth asserted in his Rule 33

motion that his new evidence of

Countryside Fragrances’s legitimate and

independent existence supported his claim

of innocence. He did not argue that the

government violated Brady by failing to

disclose this information, nor did he

assert that the existence of this

information rendered his sentence

excessive or called into question the

jurisdiction of the court. If he had

raised those arguments--all listed in

sec. 2255 para. 1 as grounds for a

collateral attack--the district court’s

resolution would have been correct.

Instead, Ruth’s bona fide Rule 33 motion

is not properly characterized as one

under sec. 2255. His latest filing is

therefore his first collateral attack

under sec. 2255, and the district court

should have addressed it on its merits.

Accordingly, we Vacate the district court

judgment and Remand the case with

instructions to do so.