USA v. Maurice Foster, No. 10-2036 (7th Cir. 2011)
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NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1 United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604 Submitted August 6, 2010 Decided August 11, 2010 Before FRANK H. EASTERBROOK , Chief Judge RICHARD A. POSNER, Circuit Judge DIANE P. WOOD, Circuit Judge No. 10-2036 Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. UNITED STATES OF AMERICA, Plaintiff-Appellee, v. MAURICE FOSTER, also known as MARCUS, Defendant-Appellant. No. 95 CR 242 Robert W. Gettleman, Judge. Order Maurice Foster s conviction and sentence were affirmed on direct appeal, and his collateral attack under 28 U.S.C. §2255 was unsuccessful. After the Sentencing Commission reduced the ranges for crack-cocaine offenses, and made that change retroactive, Foster asked for and received a reduction in his sentence. In January 2009 the district judge cut the term from 360 to 324 months. Foster appealed, contending that the reduction should have been greater; we affirmed. This successive appeal has been submitted to the original panel under Operating Procedure 6(b). After examining the briefs and the record, we have concluded that oral argument is unnecessary. See Fed. R. App. P. 34(a); Cir. R. 34(f). No. 10-2036 Page 2 In November 2009 Foster filed a motion, purportedly under Fed. R. Civ. P. 60(b), contending that the conviction was invalid because the prosecutor did not reveal all exculpatory information. Rule 60 applies to civil proceedings, and the case in which Foster filed it was a criminal proceeding. The district judge did not remark on this fact but denied the motion because the judge thought that Foster was attempting to take issue with a decision already made by this court. Foster has appealed. The district judge should have dismissed the motion, not denied it. It was in substance a new collateral attack, see Gonzalez v. Crosby, 545 U.S. 525 (2005), which is permissible only if the prisoner has advance appellate permission to file a second or successive proceeding. A district judge does not have jurisdiction over an unauthorized successive collateral attack. See Nuñez v. United States, 96 F.3d 990 (7th Cir. 1996). The decision of the district court is therefore vacated, and the matter is remanded with instructions to dismiss for lack of jurisdiction. Foster s appellate brief contends that the United States Attorney (or perhaps this court) has erred in the handling of sealed matters in the appellate record. This has nothing to do with the propriety of the district court s judgment and at all events is irrelevant given our disposition.
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