In the
United States Court of Appeals
For the Seventh Circuit
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No. 07-1658
CARLOS CURRY,
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, Eastern Division.
No. 01 C 1449—Ruben Castillo, Judge.
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SUBMITTED SEPTEMBER 28, 2007—DECIDED NOVEMBER 8, 2007
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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 ap-
peal 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 op-
portunity 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-convic-
tion 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 postconvic-
tion 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 de-
nial 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 appeal-
ability. 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