In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 07-1658

CARLOS CURRY,

Petitioner-Appellant,

v.

UNITED STATES OF AMERICA,

Respondent-Appellee.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 01 C 1449—Ruben Castillo, Judge.

____________

SUBMITTED SEPTEMBER 28, 2007—DECIDED NOVEMBER 8, 2007

____________

Before POSNER, KANNE, and ROVNER, Circuit Judges.

POSNER,Circuit Judge. This appeal presents the recurring

question of how the court of appeals should treat an appeal from the denial of a prisoner’s motion under Fed. R.

Civ. P. 60(b) to vacate the denial of postconviction relief

that he had sought under either the provisions of the

federal habeas corpus statute applicable to state prisoners,

28 U.S.C. §§ 2244, 2254; or, if as in this case he is a federal

prisoner, under 28 U.S.C. § 2255, the federal prisoners’

habeas corpus substitute. There is quite a variety of

answers on offer. See, e.g., United States v. Hardin, 481 F.3d

924, 926 (6th Cir. 2007); Spitznas v. Boone, 464 F.3d 1213,
2 No. 07-1658

1218-19 (10th Cir. 2006); United States v. Lambros, 404 F.3d

1034, 1036-37 (8th Cir. 2005); Benchoff v. Colleran, 404

F.3d 812, 820-21 (3d Cir. 2005); Reid v. Angelone, 369 F.3d

363, 374-75 (4th Cir. 2004); Munoz v. United States, 331 F.3d

151, 153 (1st Cir. 2003); Porter v. Adams, 244 F.3d 1006, 1006-

07 (9th Cir. 2001). But the answer given by this court, for

example in United States v. Lloyd, 398 F.3d 978, 980 (7th Cir.

2005), seems to us the best, and as it has not been fully

explained in our previous decisions, we take this opportunity to do so.

Section 2244(b)(3) forbids a prisoner to file a second or

otherwise successive petition for habeas corpus without

his moving the court of appeals for permission; section

2255 ¶ 8 imposes a similar limitation on motions under

that section. Section 2253(c) requires a prisoner to obtain

a certificate of appealability, either from the district court

or from this court, Dressler v. McCaughtry, 238 F.3d 908,

912 and n. 3 (7th Cir. 2001), before he can appeal from a

final decision in either “a habeas corpus proceeding” or, as

in this case, “a proceeding under section 2255.” It is the

interaction between the limitation on successive petitions

(or motions) and the appealability of denials of such

claims that generates the question presented by the appeal.

Critically, it does not matter how the prisoner labels his

pleading. Federal postconviction law is complex, and few

prisoners understand it well. Often a prisoner will file a

motion under Rule 60(b) of the civil rules, that is, a motion

to reconsider a judgment, but the ground of the motion

and the relief he seeks will mark the motion as functionally

a petition for habeas corpus or a motion under section

2255, because it challenges the legality of his detention

and seeks his release. If so, it will be treated as such.

Gonzalez v. Crosby, 545 U.S. 524, 530-32 (2005). “Prisoners
No. 07-1658 3

cannot avoid the . . . rules [governing federal post-conviction remedies] by inventive captioning . . . . [T]he name

makes no difference. It is substance that controls.” Melton

v. United States, 359 F.3d 855, 857 (7th Cir. 2004). Similar

issues of characterization arise when a prisoner brings a

civil rights suit but actually is asking for relief available

only under sections 2254 or 2255. Cochran v. Buss, 381 F.3d

637, 639-40 (7th Cir. 2004); Montgomery v. Anderson, 262

F.3d 641, 643-44 (7th Cir. 2001).

If a Rule 60(b) motion is really a successive postconviction claim, the district court will lack jurisdiction unless

the prisoner has first obtained our permission to file it.

(If his pleading is a bona fide Rule 60(b) motion, the denial can be appealed, Gonzales v. Crosby, supra, 545 U.S. at

532-34, provided—we have held, though the issue has

been left open by the Supreme Court, id. at 535 n. 7—a

certificate of appealability is issued. West v. Schneiter, 485

F.3d 393, 394-95 (7th Cir. 2007).) But suppose the district

judge does not spot the true character of the Rule 60(b)

motion. He thinks it’s a bona fide Rule 60(b) motion,

denies it on the merits, and grants a certificate of appealability. But then we spot it as really a habeas corpus or

section 2255 application that we had not permitted to be

filed, permission never having been sought, as required

by section 2244(b)(3) (for habeas corpus) or section 2255

¶ 8 (for motions under that section). Because a district

judge lacks jurisdiction to rule on a successive such

application without our permission, if he does so we must

order his judgment vacated. United States v. Scott, 414 F.3d

815, 817 (7th Cir. 2005); United States v. Lloyd, supra, 398

F.3d at 979-80; Melton v. United States, supra, 359 F.3d at

857-58 (7th Cir. 2004); Dunlap v. Litscher, 301 F.3d 873, 876

(7th Cir. 2002).
4 No. 07-1658

The present case is of this character. The district court

denied the Rule 60(b) motion without the prisoner’s having

gotten our permission to file a successive section 2255

motion, even though it is apparent that he had mislabeled

his motion and that it was really a section 2255 motion

because it challenges his conviction and asks that he be

released from custody and even though it is a successive

such motion—he had filed at least a half dozen prior

such motions.

Because the judge exceeded his jurisdiction, his decision

must be vacated with instructions to dismiss the motion

for want of jurisdiction.

A true Copy:

Teste:

 _____________________________

Clerk of the United States Court of 

Appeals for the Seventh Circuit 

USCA-02-C-0072—11-8-07