Carter, Paula v. United States ( 2002 )

In the
United States Court of Appeals
For the Seventh Circuit
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No. 01-2948
PAULA CARTER,
Petitioner-Appellant,
v.
UNITED STATES OF AMERICA,
Respondent-Appellee.
____________
Appeal from the United States District Court
for the Southern District of Illinois.
No. 01 CV 235 WLB—William L. Beatty, Judge.
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SUBMITTED OCTOBER 16, 2002—DECIDED NOVEMBER 19, 2002
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Before BAUER, POSNER, and DIANE P. WOOD, Circuit Judges.
POSNER, Circuit Judge. Some months after her conviction
of a federal offense became final, Paula Carter wrote a let-
ter to the district judge claiming that she had been treated
unjustly by everyone involved in her case, particularly
her lawyer. Without notice to Carter and without asking
for a response from the government, the district judge con-
strued her letter as a motion under 28 U.S.C. § 2255 to va-
cate her criminal judgment, and denied it as barred by the
one-year statute of limitations in that section. She appeals,
citing our decision in Henderson v. United States, 264 F.3d
709 (7th Cir. 2001), which holds that although a postcon-
2 No. 01-2948
viction motion that is functionally a section 2255 motion
should be treated as such however it is labeled, before do-
ing so the district judge must notify the movant of what he
intends to do, to give the movant a chance to withdraw
the motion. For with limited exceptions the Antiterror-
ism and Effective Death Penalty Act, which governs collat-
eral attacks on criminal judgments, gives a prisoner only
one shot at postconviction review.
While acknowledging the district court’s error, the gov-
ernment urges us to dismiss the appeal as moot. The judge’s
error cannot hurt Carter, the government argues, because
Henderson makes clear that should she file a section 2255
motion it will not be deemed her second such motion,
since the judge erred in treating her letter as a first such
motion. In effect the government is urging us to follow the
approach adopted by the First Circuit in United States
v. Raineri, 233 F.3d 100 (1st Cir. 2000). But we think the
better approach, the one taken in the other circuits to
have addressed the question, Morales v. United States, 304
F.3d 764 (8th Cir. 2002); United States v. Emmanuel, 288
F.3d 644 (4th Cir. 2002); United States v. Kelly, 235 F.3d 1238
(10th Cir. 2000); United States v. Seesing, 234 F.3d 456 (9th
Cir. 2000); United States v. Miller, 197 F.3d 644 (3d Cir. 1999);
Adams v. United States, 155 F.3d 582 (2d Cir. 1998) (per
curiam), is to vacate the denial of a motion that is con-
verted without the required notice and opportunity to
withdraw to a motion under section 2255. For remember
that a motion that is functionally a section 2255 motion is
a section 2255 motion for purposes of AEDPA. Therefore,
its denial, formally at least, blocks a second such motion,
unless as in Henderson itself, where the appeal was from
the denial of the second motion, which the district court
had held blocked by its previous denial of the first mo-
tion (the one that had been converted), we treat the first
denial as a nullity. In effect we allowed Henderson to take
No. 01-2948 3
a belated appeal from the improper denial of his first mo-
tion. It is clearer that he could have appealed from that
first denial, an error potentially harmful to him, than that
we should have allowed him to take in effect an untimely
appeal from it. Untimely appeals are not authorized, and
decisions founded on a legal error are ordinarily treated
as erroneous rather than void. See generally Gleash v.
Yuswak, 303 F.3d 758 (7th Cir. 2002). If a court enters judg-
ment against a plaintiff, we do not say to him “don’t both-
er us with an appeal; just file another suit, and if the court
holds it barred by res judicata, we’ll reverse.” That is es-
sentially what the First Circuit said to Raineri, and we de-
cline to follow its lead.
The judgment of the district court is
VACATED.
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—11-19-02