Thomas v. USA, No. 4:2000cv04304 - Document 51 (S.D. Ill. 2009)

Court Description: MEMORANDUM AND OPINION, Dismissing for lack of jurisdiction 50 MOTION for Order to filed by Charles Bruce Thomas. Signed by Judge J. Phil Gilbert on 4/18/09. (bkl)

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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS CHARLES BRUCE THOMAS, Petitioner, v. UNITED STATES OF AMERICA, Defendant. ) ) ) ) ) ) ) ) ) No. 00-cv-4304-JPG MEMORANDUM AND ORDER This matter comes before the Court on defendant Charles Bruce Thomas s Rule 60(b)(4) motion for relief from judgment (Doc. 50). In Thomas s pending motion, he attacks the Court s disposition of his December 6, 2000, motion to vacate his sentence pursuant to 28 U.S.C. § 2255 in Case No. 00-cv-4304-JPG, on the grounds that the judgment is void for lack of jurisdiction. The Court cannot consider Thomas s motion because it is a successive petition not authorized by the Court of Appeals. A post-judgment motion such as a Rule 60(b) motion that advances a new claim, that is, a new ground for relief from a conviction, or an attack on the Court s prior resolution of a ground for relief on the merits is a successive petition. See Gonzalez v. Crosby, 545 U.S. 524, 531 (2005) (habeas context); see United States v. Scott, 414 F.3d 815, 816 (7th Cir. 2005) (considering post-judgment Rule 6(e) motion). However, a Rule 60(b) motion that does not assert or reassert claims of error in the conviction and instead points to a defect in the integrity of the § 2255 proceedings is not a successive petition. Gonzalez, 545 U.S. at 532; see Scott, 414 F.3d at 816. Generally, decisions to deny a habeas petition or a § 2255 motion based on procedural default or the statute of limitations are not decisions on the merits and may be attacked in a Rule 60(b) motion without amounting to a successive petition. Gonzalez, 545 U.S. at 532 n. 4. Although Thomas asserts that the pending motion is an attack on the integrity of the prior § 2255 proceedings that is, that the Court s prior procedural default rulings were erroneous it is actually an attempt to advance a new substantive argument regarding the Court s jurisdiction to hear his criminal case. Thomas s § 2255 motion raised no jurisdictional argument that was resolved on procedural default grounds such that he could bring a Rule 60(b) motion to challenge it now. On the contrary, the Court ruled on the merits on the only issue even relating to jurisdiction that Thomas raised in his § 2255 proceedings. Thomas had argued that his trial counsel was constitutionally ineffective for failing to object to the Court s jurisdiction to hear Thomas s case. Thomas seemed to believe that the Court did not have jurisdiction to decide his criminal case because the government s evidence had already been used to convict him of murder in state court. The Court found counsel s performance was not deficient for failing to raise this argument at trial or on appeal because the argument was a sure loser. Thus, because the Court resolved no issues relating to jurisdiction on procedural default grounds, Thomas s assertion now that he challenges the Court s procedural default findings is simply wrong. Because Thomas s pending motion seeks to raise a new jurisdictional issue, it is a successive petition under the rule of Gonzalez. In order for this Court to consider a successive petition, the Seventh Circuit Court of Appeals must certify the successive petition pursuant to 28 U.S.C. § 2255, ¶ 8. Curry v. United States, 507 F.3d 603, 604 (7th Cir. 2007), cert. denied, 128 S. Ct. 2925 (2008); Nunez v. United States, 96 F.3d 990, 991 (7th Cir. 1996). The Court of Appeals has not made such a certification. Therefore, the Court does not have jurisdiction to consider Thomas s motion (Doc. 50) and DISMISSES it for lack of jurisdiction. IT IS SO ORDERED. Dated: August 18, 2009 s/ J. Phil Gilbert J. PHIL GILBERT DISTRICT JUDGE 2

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