U.S.A. v. Evans

• Decision Date: 18 August 2000
• Docket Number: No. 99-1187,99-1187
• Citation: 224 F.3d 670
• Parties: (7th Cir. 2000) United States of America, Plaintiff-Appellee, v. Marcus O. Evans, Defendant-Appellant
• Court: U.S. Court of Appeals — Seventh Circuit

Page 670

224 F.3d 670 (7th Cir. 2000)

United States of America, Plaintiff-Appellee, v. Marcus O. Evans, Defendant-Appellant.

No. 99-1187

In the United States Court of Appeals For the Seventh Circuit

Submitted July 28, 2000

Decided August 18, 2000

Appeal from the United States District Court for the Northern District of Illinois, Western Division. No. 93 CR 20024--Philip G. Reinhard, Judge. [Copyrighted Material Omitted] 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 post- judgment 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...