01-2948 Carter v. U.S.

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“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 motion (the one that had been converted), we treat the first denial as a nullity. In effect we allowed Henderson to take a belated appeal from the improper denial of his first motion. 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 judgment against a plaintiff, we do not say to him ‘don’t bother us with an appeal; just file another suit, and if the court holds it barred by res judicata, we’ll reverse.’ That is essentially what the First Circuit said to Raineri, and we decline to follow its lead.”

Vacated.

Appeal from the United States District Court for the Southern District of Illinois, Beatty, J., Posner, J.