Wilbourn v. USA, No. 3:2007cv00467 - Document 1 (N.D. Ind. 2007)
Court Description: OPINION AND ORDER: DENYING Motion to Vacate. Signed by Judge Robert L Miller Jr on 10/2/07. (jld)
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Wilbourn v. USA Doc. 1 case 3:07-cv-00467-RLM document 1 filed 10/02/2007 page 1 of 2 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA SOUTH BEND DIVISION UNITED STATES OF AMERICA v. ANTHONY WILBOURN ) ) ) ) ) ) ) Cause No. 3:01-CR-00064(01) RM (Civil No. 3:07-CV-467RM) ORDER On October 1, 2007, Anthony Wilbourn filed a document with the court labeled: Successive Petition for Writ of Habeas Corpus Relief to Vacate Sentence. Mr. Wilbourn asks the court for relief of judgment due to ineffective assistance of trial counsel at sentencing. For the following reasons, the court denies Mr. Wilbourn s Motion to Vacate. Regardless of the caption, because Mr. Wilbourn s motion asks the court to set aside his sentence as unconstitutional, it is substantively within the scope of a § 2255 petition. See Melton v. U.S., 359 F.3d 855, 857 (7th Cir. 2004) ( no matter what title the prisoner plasters on the cover... it is substance that controls ) see also Walker v. O Brien, 216 F.3d 626, 632 (7th Cir. 2000) ( Congress enacted 28 U.S.C. § 2255 to be the vehicle for collateral attacks on convictions and sentences for federal prisoners ). Mr. Wilbourn s first § 2255 petition was dismissed by this court on April 18, 2005, and the Court of Appeals vacated his certificate of appealability and dismissed his appeal on November 10, 2005. Mr. Wilbourn later sought to reopen and amend his initial petition, but this court Dockets.Justia.com case 3:07-cv-00467-RLM document 1 filed 10/02/2007 page 2 of 2 denied his request on May 3, 2007. As such, the court construes Mr. Wilbourn s current motion as a successive petition. 28 U.S.C. § 2244 provides that before a second or successive motion is filed with the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application. Since the court of appeals has not issued such an order, the court has no power to review Mr. Wilbourn s petition. Accordingly, the court DENIES Mr. Wilbourn s Motion to Vacate [Doc. No. 171). SO ORDERED. ENTERED: October 2, 2007 /s/ Robert L. Miller, Jr. Chief Judge United States District Court 2
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