In the
United States Court of Appeals
For the Seventh Circuit
No. 09-2293
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
JAMES E. R OLLINS, S R.,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Illinois.
No. 05-cr-30133-4-DRH—David R. Herndon, Chief Judge.
S UBMITTED M AY 26, 2010—D ECIDED JUNE 9, 2010
Before E ASTERBROOK, Chief Judge, and P OSNER and
W OOD , Circuit Judges.
E ASTERBROOK, Chief Judge. James Rollins is serving
a term of 97 months’ imprisonment for distributing
cocaine. We affirmed his conviction in September 2008.
United States v. Rollins, 544 F.3d 820 (7th Cir. 2008). Five
months later, Rollins filed in the district court what he
styled a motion for a new trial based on newly dis-
covered evidence. Fed. R. Crim. P. 33. The district judge
denied the motion after concluding that none of the facts
2 No. 09-2293
on which the motion rests is “newly discovered.” 2009 U.S.
Dist. L EXIS 31657 (S.D. Ill. Apr. 15, 2009). Rollins then
asked the judge to reconsider, citing Fed. R. Civ. P. 59. The
judge denied this motion, giving two reasons: first that
Rule 59 does not apply to criminal cases, and second that
none of the criminal rules authorizes reconsideration
of any decision in a criminal proceeding. 2009 U.S. Dist.
L EXIS 37338 (S.D. Ill. May 1, 2009).
Rollins’s next submission was a notice of appeal, filed
on May 8, 2009. The United States contends that we lack
jurisdiction to consider this appeal, initiated more than
10 days after the district court’s order of April 15. As
the United States Attorney sees things, echoing the
district judge’s decision of May 1, Rollins’s motion to
reconsider was ineffectual and therefore did not extend
the time to appeal from the decision denying the motion
for a new trial. Rollins might as well have filed a copy
of Lorna Doone; neither the novel nor the motion had
any effect on anything, according to the prosecutor.
(When Rollins took his appeal, Fed. R. App. P. 4(b)(1)(A)
provided that appeals in criminal prosecutions must be
filed within 10 days of the final decision. Because week-
ends and holidays were excluded, see Fed. R. App. P. 26,
“10 days” usually meant 14 or 15 calendar days. On
December 1, 2009, Rules 4 and 26 were amended so that
all times are stated in calendar days and defendants
have 14 days to appeal. This usually comes to the
same thing without the old roundabout approach,
but the former version of Rules 4 and 26 applies to
this proceeding.)
No. 09-2293 3
Two things are wrong with the prosecutor’s contention.
First, although the time limit for a civil appeal is juris-
dictional, see Bowles v. Russell, 551 U.S. 205 (2007), the
time limit for a criminal appeal is not. See United States
v. Neff, 598 F.3d 320 (7th Cir. 2010). The limit is mandatory,
and we must enforce it when the appellee stands on
its rights (as the United States has done), but it does not
affect appellate jurisdiction. Second, a motion for recon-
sideration presenting a substantive challenge to the
decision (as opposed to a motion seeking to correct a
typographical or other formal error) makes a district
judge’s order non-final and postpones the time for
appeal until entry of the order on that motion. The time
limit for appeal begins anew when the district judge is
really finished with the case. See United States v. Ibarra,
502 U.S. 1, 4 n.2 (1991) (a motion for reconsideration does
not “toll” the time for appeal; rather, denial of such
a motion makes the decision final and thus restarts
the time).
If, as the district judge believed, there is no such thing
as a motion for reconsideration in a criminal case, then
the finality of the April 15 order was never suspended and
the time did not restart on May 1. That would make
Rollins’s notice of appeal untimely. The district court
quoted from a footnote in United States v. Griffin, 84 F.3d
820, 826 n.4 (7th Cir. 1996): “We are at a loss to under-
stand any basis under federal law or rules of criminal
procedure for what is typically described as a ‘motion
to reconsider’ . . . . . . . There is no authority in the
Federal Rules of Criminal Procedure for a ‘motion for
reconsideration.’ ”
4 No. 09-2293
The second sentence of Griffin’s statement is absolutely
correct. None of the Rules of Criminal Procedure autho-
rizes a generic motion to reconsider; the criminal rules
lack a counterpart to the motions authorized by Fed. R.
Civ. P. 50(b), 52(b), or 59, though they do authorize
some post-trial motions, such as a motion for acquittal,
Fed. R. Crim. P. 29, that have features in common with
motions under the civil rules. See also Fed. R. App.
P. 4(b)(3) (providing that a timely, and authorized, post-
trial motion in a criminal case defers the time for
appeal until the motion has been resolved). But the prop-
osition that “the criminal rules do not mention motions
to reconsider” differs from the proposition that “all
motions to reconsider are ineffectual.” Motions may
exist as a matter of general practice. And that’s what
the Supreme Court has held. The Justices have con-
cluded that motions to reconsider in criminal prosecu-
tions are proper and will be treated just like motions in
civil suits.
United States v. Healy, 376 U.S. 75 (1964), holds that
motions to reconsider (in district courts) and petitions
for rehearing (in courts of appeals) are ordinary elements
of federal practice that exist in criminal prosecu-
tions despite their omission from the Rules of Criminal
Procedure. A district court dismissed an indictment, and
the United States filed a motion to reconsider; when
this motion was denied, the United States filed a notice
of appeal. Healy argued (just as the United States has
argued here) that the motion to reconsider was inef-
fectual because not founded on any of the criminal
rules, and that the appeal was therefore untimely. But
No. 09-2293 5
the Justices disagreed, concluding that as a matter of
common law a motion to reconsider is proper, and
that such motions defer the time for appeal until the
judge has resolved them. 376 U.S. at 77–80. The Court
thought that silence in the criminal rules did not reflect
a decision to forbid such motions, and that it would be
beneficial to permit district judges to correct their over-
sights and errors. The Justices added that, when the
motion to reconsider is filed within the time available
for appeal, an appeal from the later order disposing
of the motion could not be seen as “an attempt to rejuve-
nate an extinguished right to appeal.” Id. at 77. Thus the
Court concluded: “in a criminal case a timely petition
for rehearing . . . filed within the permissible time for
appeal renders the judgment not final for purposes
of appeal until the court disposes of the petition”.
Id. at 77–78.
Twelve years later a court of appeals attempted to
confine Healy to motions based on legal propositions.
Contentions about the facts of the case could not be the
basis of a motion to reconsider, it held. The Justices
summarily reversed, reiterating Healy and concluding
that its approach is general. United States v. Dieter, 429
U.S. 6 (1976). The Court remarked “the wisdom of
giving district courts the opportunity promptly to cor-
rect their own alleged errors” and added that “[t]hese
considerations fully apply whether the issue presented
on appeal is termed one of fact or of law”. Id. at 8. And
to the court of appeals’ observation that none of the
criminal rules authorizes motions to reconsider, the
Court had this riposte:
6 No. 09-2293
The Court of Appeals’ concern with the lack of a
statute or rule expressly authorizing treatment of
a post-dismissal motion as suspending the [time
for appeal] ignores our having grounded our
decision in Healy, not on any express authoriza-
tion (which was similarly lacking in Healy), but
rather on “traditional and virtually unquestioned
practice.” 376 U.S. at 79.
429 U.S. at 8 n.3.
Fifteen years after Dieter, a court of appeals again at-
tempted to limit Healy. This time the court said that only
well-founded motions to reconsider are authorized,
and that a motion that proposes to revive an argument
forfeited at an earlier stage of the proceedings there-
fore does not affect the time for appeal. Once again the
Justices reversed summarily. The Court summed up
Healy and Dieter:
The first of these decisions established that a
motion for rehearing in a criminal case, like a
motion for rehearing in a civil case, renders an
otherwise final decision of a district court not
final until it decides the petition for rehearing. In
Dieter, we rejected an effort to carve out exceptions
to this general rule in the case of petitions for
rehearing which do not assert an alleged error of
law. We think that the Court of Appeals’ present
effort to carve out a different exception to the
general rule laid down in Healy must likewise
be rejected.
No. 09-2293 7
It may be that motions to reconsider based on
previously abandoned grounds are not apt to
fare well either in the district court or on appeal to
the court of appeals. But if such a judgment as
to the merits were allowed to play a part in de-
ciding the time in which a denial of the motion
may be appealed, it is difficult to see why a
similar merits analysis should not be undertaken
for all motions for reconsideration.
Ibarra, 502 U.S. at 6.
When relying on the dicta in Griffin for the proposition
that there is no such thing as a motion to reconsider in
a criminal case, the district judge did not mention
Healy, Dieter, or Ibarra. Nor does the appellate brief for
the United States—the litigant that persuaded the
Supreme Court in each of these cases that motions to
reconsider are proper, and do suspend the time for appeal
until they have been resolved. Healy, Dieter, and Ibarra
cannot be understood as for the benefit of prosecutors
only; they rest on “traditional and virtually unquestioned
practice,” which does not recognize such a distinction.
And the Justices took the precaution of saying exactly
that in Healy: “no difference in treatment is intended
between appealable judgments and those reviewable
by certiorari, or between criminal defendants and the
United States.” 376 U.S. at 79.
The dicta in Griffin mean no more than that motions to
reconsider are not covered, one way or the other, by the
Federal Rules of Criminal Procedure. We are not autho-
rized to overrule the Supreme Court and did not purport
8 No. 09-2293
to do so. Nor did the panel in Griffin question decisions
in this circuit and elsewhere that have followed and
applied Healy, Dieter, and Ibarra. See United States v.
Henderson, 536 F.3d 776, 778–79 (7th Cir. 2008); United
States v. Kalinowski, 890 F.2d 878, 880–82 (7th Cir. 1989);
United States v. Gargano, 826 F.2d 610, 611–12 (7th Cir.
1987). Accord, United States v. Phillips, 597 F.3d 1190,
1199–1200 (11th Cir. 2010); United States v. Aguirre, 214
F.3d 1122, 1124 (9th Cir. 2000).
Rollins filed his motion to reconsider within the time
available for appeal and sought a substantive modifica-
tion of the judgment. The motion therefore suspended
the finality of the district court’s order. That Rollins cited
Civil Rule 59 is harmless; Healy and the common law
supply all the authority needed. Rollins filed an appeal
within 10 (countable) days of the district court’s order
denying his motion for reconsideration, so his appeal
is timely with respect to both the decision of April 15
and the order of May 1, and we proceed to the merits of
the district court’s order of April 15 denying Rollins’s
motion for relief under Rule 33.
As we mentioned earlier, the district court denied the
motion because none of the evidence on which Rollins
relies is “newly discovered.” The judge did not ask an
antecedent question: whether Rule 33 applies. It does not.
Rule 33 deals with contentions that evidence discovered
after trial shows that the accused is innocent. The recanta-
tion of an important witness fits this description; new
DNA analysis or other scientific evidence also would
come within Rule 33. But Rollins did not advance an
No. 09-2293 9
argument of this kind. Instead he asserted that the indict-
ment had been procured irregularly, that the prosecutor
withheld some information during discovery, that argu-
ments presented to the jury reflected racial bias, and that
his attorney furnished ineffective assistance. These are
standard contentions under 28 U.S.C. §2255. We held in
United States v. Evans, 224 F.3d 670 (7th Cir. 2000), that a
post-trial motion making arguments within the scope
of §2255(a) is a motion under that statute, even if it bears
the caption “Fed. R. Crim. P. 33.” See also, e.g., Melton
v. United States, 359 F.3d 855 (7th Cir. 2004).
The district court should have treated Rollins’s motion
as a petition under §2255 and asked him whether he
wished to proceed on that basis, or to have the motion
dismissed. See Castro v. United States, 540 U.S. 375 (2003).
(Castro entitles prisoners to make this election because
one “real” §2255 motion forecloses another, unless the
criteria of 28 U.S.C. §2244 and §2255(h) are satisfied.
Uncounseled defendants who think that they are filing
some other kind of motion should not lose the oppor-
tunity to file one §2255 motion containing all of their
contentions, so the judge must warn them when a paper
bearing a different caption counts as one under §2255.)
Rollins filed his motion within a year of our affirmance, so
it is timely, §2255(f)(1), and he has not filed any other
collateral attack on his conviction or sentence. Because
an initial motion under §2255 does not depend on
evidence being “newly discovered,” the district court
should have addressed Rollins’s arguments on the merits
(at least, should do so if Rollins consents under Castro
to this recharacterization).
10 No. 09-2293
The judgment is vacated, and the case is remanded
for proceedings consistent with this opinion.
6-9-10