In the

United States Court of Appeals

For the Seventh Circuit

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No. 03-3903

TIMOTHY MELTON,

Petitioner-Appellant,

v.

UNITED STATES OF AMERICA,

Respondent-Appellee.

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Appeal from the United States District Court for the

Northern District of Illinois, Western Division.

No. 95 CR 50024-3—Philip G. Reinhard, Judge.

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SUBMITTED JANUARY 23, 2004—DECIDED FEBRUARY 13, 2004

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Before BAUER, EASTERBROOK, and KANNE, Circuit Judges.

EASTERBROOK, Circuit Judge. Timothy Melton pleaded

guilty in 1995 to drug offenses and, in exchange for cooperation, received a sentence of 216 months’ imprisonment,

or 90% of the statutory minimum that would have applied

in the absence of a favorable recommendation by the prosecutor. More than a year later (and more than a year after

the Antiterrorism and Effective Death Penalty Act of 1996

took effect), Melton filed a collateral attack under 28 U.S.C.

§2255, contending that he would have received a lower

sentence had his lawyer done a better job. The court

recruited an attorney to assist Melton. Six months later,

after his original counsel had filed an affidavit that demol-
2 No. 03-3903

ished his contentions, Melton dismissed this proceeding.

In 2003 Melton again sought relief—and, doubtless recognizing that §2255 was no longer available given not only

the time limit of §2255 ¶6 but also the earlier unsuccessful

collateral attack, see 28 U.S.C. §§ 2244, 2255 ¶8, Melton

styled this request as a petition for a writ of audita querela.

Just as in 1997, Melton contended that his sentence had

been spoiled by ineffective assistance of counsel.

The ancient writ of audita querela, long ago abolished in

federal civil proceedings, see Fed. R. Civ. P. 60(b), has no

apparent relevance to criminal sentences. Black’s Law

Dictionary 126 (7th ed. 1999), describes it as a “writ available to a judgment debtor who seeks a rehearing of a matter

on grounds of newly discovered evidence or newly existing

legal defenses.” Melton is not a judgment debtor, and the

territory of new facts and law is occupied for civil matters

by Rule 60(b) and for criminal matters by Fed. R. Crim. P.

33 plus §2255. See United States v. Kimberlin, 675 F.2d

866, 869 (7th Cir. 1982). The district judge viewed Melton’s

invocation of audita querela as reflecting confusion about

the appropriate remedy to use and denied his application on

that ground, inviting him to try again under §2255.

Things are not so simple, however, given the AEDPA. The

prosecutor had asked the district judge not to deny the application but to dismiss it for want of jurisdiction. Melton

can’t try again tomorrow under §2255 and couldn’t have

employed §2255 at the time he filed this petition in the

district court; his application in 1997 used up the only collateral attack allowed as of right, see Altman v. Benik, 337

F.3d 764 (7th Cir. 2003), and the district court thus lacks

jurisdiction to entertain any further collateral proceedings

unless this court first grants permission under §2244 and

§2255 ¶8. See Nuñez v. United States, 96 F.3d 990 (7th Cir.

1996). The prosecutor brought this problem to the attention

of the district judge, who did not mention the subject in the

brief order denying Melton’s petition.
No. 03-3903 3

Prisoners cannot avoid the AEDPA’s rules by inventive captioning. See, e.g., Owens v. Boyd, 235 F.3d 356

(7th Cir. 2000) (application for coram nobis); United States

v. Evans, 224 F.3d 670 (7th Cir. 2000) (use of Rule 33 based

on matters other than newly discovered evidence of innocence). 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).

Paragraph 1 of §2255 reads:

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.

Melton’s application fits comfortably within that coverage.

It therefore was a motion under §2255, notwithstanding

its caption, and the district court was obliged to dismiss it

for want of jurisdiction because Melton had not received

this court’s permission to commence a second or successive

collateral attack. Moreover, because §2255 governs, Melton

needed a certificate of appealability in order to obtain appellate review, see 28 U.S.C. §2253(c), and he has neither
4 No. 03-3903

requested nor received one. (The district court also neglected to make the initial determination that Fed. R.

App. P. 22(b)(1) calls for in all matters within the scope of

§2255, even if the prisoner fails to request a certificate.)

Recharacterizing a prisoner’s initial post-judgment motion as a collateral attack subject to §2255 has a potential

to surprise a legal novice who may think that the motion

does not jeopardize the right to one complete round of collateral review. Accordingly, the Supreme Court held in

Castro v. United States, 124 S. Ct. 786 (2003), that unless

the district judge has warned the prisoner that a motion

will be treated as a collateral attack, and offered the opportunity to withdraw it (or add any other issues that would

be included with a motion under §2255), the motion does

not count as the one collateral attack allowed to each

prisoner. See also, e.g., Henderson v. United States, 264

F.3d 709 (7th Cir. 2001). Recharacterizing a prisoner’s

successive collateral motions in the sentencing court as

within the scope of §2255 does not pose any similar risk; the

initial round of collateral review has been enjoyed (or, here,

forfeited in the face of defeat), and the only question is

whether the court will permit the prisoner to use nomenclature to defeat the rules established by Congress. To that the

answer must be no. (The proviso “in the sentencing court”

is important. Section 2255 concerns only motions in that

forum. A collateral attack in the court with jurisdiction over

the prisoner’s custodian falls under 28 U.S.C. §2241 and is

unaffected by the AEDPA, see Felker v. Turpin, 518 U.S. 651

(1996); Valona v. United States, 138 F.3d 693 (7th Cir.

1998), though it must be dismissed unless §2255, even if

diligently employed, would not have been adequate to test

the legality of the conviction and sentence. See 28 U.S.C.

§2255 ¶5; Taylor v. Gilkey, 314 F.3d 832 (7th Cir. 2002).)

We have held that a prisoner who seeks damages should

not have the papers treated as a request for collateral

review, and that a prisoner who wants to shorten his time
No. 03-3903 5

in custody should not have the papers converted into a civil

suit under Bivens or 42 U.S.C. §1983. See, e.g., Copus v.

Edgerton, 96 F.3d 1038 (7th Cir. 1996); Moore v. Pemberton,

110 F.3d 22 (7th Cir. 1997). Litigation seeking damages is

governed by rules—not only filing fees and the Prison

Litigation Reform Act but also the doctrine of Heck v.

Humphrey, 512 U.S. 477 (1994)—that differ from those for

collateral attacks. Prisoners are entitled to choose between

requests for financial relief and requests for release,

following the procedures (and taking the consequences) of

each. Melton did not launch what was even arguably a

quest for damages, however; his demand, filed in the

criminal case under the original docket number, was that

the judge either set aside his conviction or reduce his

sentence. That is squarely within §2255 ¶1.

We have treated the papers that Melton has filed in this

court as an implicit request for permission to commence

another collateral attack. It would be inappropriate to grant

such permission, however, because Melton’s contention that

he received ineffective assistance of counsel in 1995 does

not meet any of the statutory criteria for second or successive collateral attacks.

The judgment of the district court is vacated, and the case

is remanded with instructions to dismiss for want of

jurisdiction.
6 No. 03-3903

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—2-13-04