In the

United States Court of Appeals

For the Seventh Circuit

No. 99-1186

Rickey L. Potts,

Petitioner-Appellant,

v.

United States of America,

Respondent-Appellee.

Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 98 C 979--Thomas J. Curran, Judge.

Submitted February 17, 2000--Decided April 24, 2000

 Before Posner, Chief Judge, and Coffey and

Easterbrook, Circuit Judges.

 Posner, Chief Judge. The stringent limitations

that the Antiterrorism and Effective Death

Penalty Act places on the filing of a second or

successive petition for habeas corpus (or its

federal prisoner’s counterpart, a motion under 28

U.S.C. sec. 2255) make it vital to determine

whether a previous petition (or motion) was "the

real thing" that ought to subject the petitioner

or movant to those limitations. The essential

point is that a prisoner is entitled to one

unencumbered opportunity to receive a decision on

the merits. The polar cases that elucidate this

principle are easy: where the petition was not

accepted for filing, e.g., Stewart v. MartinezVillareal, 523 U.S. 637, 643-45 (1998); O’Connor

v. United States, 133 F.3d 548 (7th Cir. 1998);

Benton v. Washington, 106 F.3d 162 (7th Cir.

1996); In re Moore, 196 F.3d 252, 255 (D.C. Cir.

1999), and where the petition was rejected on the

merits. E.g., In re Page, 179 F.3d 1024, 1025

(7th Cir. 1999); Bennett v. United States, 119

F.3d 470 (7th Cir. 1997); Pratt v. United States,

129 F.3d 54, 60 (1st Cir. 1997). Nesting within

these extremes is a further division between

cases in which the petitioner withdraws his

petition before he has any reason to think it is

going to be denied (maybe he realizes that

because of lack of legal assistance he cannot
articulate his legal claim) and cases in which he

withdraws it when it becomes clear to him that it

is indeed about to be denied. The first type of

case is illustrated by Garrett v. United States,

178 F.3d 940 (7th Cir. 1999) (per curiam), and

Haro-Arteaga v. United States, 199 F.3d 1195

(10th Cir. 1999) (per curiam), and the second by

Felder v. McVicar, 113 F.3d 696 (7th Cir. 1997).

We must decide which of the two types the present

case is closer to.

 Potts’s first section 2255 motion was met by a

brief in opposition arguing in detail that the

motion lacked merit. Potts and his lawyer, after

conferring about the merits, decided to withdraw

the motion; a motion to dismiss was made and

granted. We do not see how Potts’s 2255 motion

could be thought an abortive filing, akin to

Garrett, the case in which the movant withdrew

his motion because he realized that, lacking as

he did legal assistance, his motion failed to

present his case. Potts was assisted by counsel,

filed a competent motion, and then appears to

have realized (though unlike Felder he did not

acknowledge) that in light of the government’s

brief in opposition, the motion was doomed. In

these circumstances, it would be unrealistic to

treat the dismissal as tantamount to a refusal to

accept a filing because of formal deficiencies.

He had his opportunity to receive a decision on

the merits; he flinched, seeing the handwriting

on the wall.

 The district court, while noting that Potts had

filed a previous 2255 motion, dismissed his

present motion as untimely. The court should not

have entertained the motion at all, because Potts

had failed to demonstrate compliance with the

conditions on the filing of a second or

successive such motion. The motion was properly

dismissed, but for the wrong reason.

Affirmed.