United States District Court, N.D. Illinois, Eastern Division
August 10, 2004.
UNITED STATES OF AMERICA, Plaintiff,
ANDREW TRAEGER, Defendant.
The opinion of the court was delivered by: MILTON SHADUR, Senior District Judge
Andrew Traeger ("Traeger"), like the Energizer Bunny, keeps
going and going and going. Since this Court most recently issued
its short July 20, 2004 memorandum order denying reconsideration
of its July 8 memorandum opinion and order that had denied
Traeger's 28 U.S.C. § 2255*fn1 motion, it has received two
more filings from Traeger, respectively captioned "Motion To
Leave For Reconsideration of the Court's Memorandum Opinion and
Order" and "Motion To Leave For This Court To Consider
Jurisdiction of the Indictment."
It seems quite certain that the first of those filings and this
Court's July 20 memorandum order crossed in the mails: Although
the motion did not arrive in the Clerk's Office until July 26,
Traeger's notice of filing states that he placed the document in
the legal mailbox at his Terre Haute place of confinement on July
16. In any event, nothing said in that initial motion calls for further reconsideration, so the motion
As for the second and more recent filing, it does not come
within the purview of this Court except as a potential Section
2255 motion. But under the Supreme Court's teaching, this Court
cannot sua sponte relabel the motion as one filed under Section
2255 and if Traeger were to seek to do so, Section
2244(b)(3)(A) requires that he must move in the first instance in
our Court of Appeals for an order authorizing this District Court
to consider the application.
Accordingly both motions are denied. As indicated in the
preceding paragraph, however, such denial as to the second filing
is without prejudice to Traeger's ability to seek leave from the
Court of Appeals to proceed with a second Section 2255 motion.