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 postjudgment 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.