United States District Court, C.D. Illinois
December 5, 2005.
MARK L. NEFF, Petitioner,
UNITED STATES OF AMERICA, Respondent.
The opinion of the court was delivered by: MICHAEL MIHM, District Judge
This matter is before the Court on Petitioner's Motion for
Review of Judgment Under Rule 60(b) of the Federal Rules of Civil
Procedure [#184] and Petitioner's Motion to Clarify how Title
18 U.S.C. § 924(e)/USSG § 4B1.4 Does Not Apply [#182]. For the
reasons that follow, Petitioner's Rule 60(b) Motion [#184] is
DISMISSED FOR LACK OF JURISDICTION and his Motion to Clarify
[#182] is STRICKEN.
Neff was convicted of being a felon in possession of a firearm
in violation of 18 U.S.C. § 922(g)(1) and was sentenced as an
armed career criminal to 252 months' imprisonment. He
subsequently appealed his conviction to the United States Court
of Appeals for the Seventh Circuit, challenging the denial of his
motion to suppress evidence. On July 18, 1995, the Seventh
Circuit issued its Order affirming this Court. See United
States v. Neff, 61 F.3d 906, 1995 WL 428175 (7th Cir. 1995)
(unpublished order pursuant to Circuit Rule 53(b)(2)).
On April 22, 1996, Neff filed a Motion to Vacate, Set Aside, or
Correct Sentence pursuant to 28 U.S.C. § 2255. In his Motion, he
raised essentially three issues: (1) this Court improperly classified him as an armed career criminal
pursuant to 18 U.S.C. § 924(e); (2) Congress exceeded its
authority under the Commerce Clause in enacting
18 U.S.C. § 922(g); and (3) appellate counsel rendered ineffective assistance
on his direct appeal by not raising the first two issues. Neff's
Motion was denied in its entirety on July 30, 1996. He pursued an
appeal to the Seventh Circuit Court of Appeals, and the denial of
his § 2255 motion was affirmed on October 14, 1997.
In November 2004, Neff filed another § 2255 Motion claiming
that he was charged pursuant to a defective indictment because
the Court lacked venue and jurisdiction over the geographic
location where the alleged criminal activity took place. Although
he styled his pleading as a Petition for Common Law Writ of
Habeas Corpus Ad Subjiciendum, a review of the Petition revealed
that he was actually attempting to bring a successive collateral
attack on his 1994 conviction and sentence. As Neff had not
received a Certificate of Appealability from the Seventh Circuit
Court of Appeals prior to filing his successive claim, this Court
dismissed his claim for lack of jurisdiction.
In June 2005, Neff filed a Motion to Modify his Sentence Under
18 U.S.C. § 3582 arguing that his sentence should be reduced
because certain amendments to the Sentencing Guidelines applied
to his case. The Court denied his Motion on September 7, 2005.
Most recently, Neff has filed the two current Motions.
Specifically, in his Rule 60(b) Motion, Neff asks this Court to
review his sentence and the guideline under which he was sentenced. Additionally, in his Motion to Clarify,
Neff argues that the Sentencing Guidelines applicable to Career
Offenders do not apply to his case.
First, Neff's Motion to Compel How Title
18 U.S.C. § 924(e)/USSG § 4B1.4 Does Not Apply is stricken because the Motion
is not signed. In accordance with this Court's Administrative
Procedures and the Federal Rules of Civil Procedure, all
pleadings must be signed.
Secondly, regarding Neff's Rule 60(b) Motion, the Seventh
Circuit has previously addressed the filing of a Rule 60(b)
motion under analogous circumstances and unambiguously concluded
that "a post-judgment motion under Fed.R.Civ.P. 60(b) in the
district court . . . is a `second or successive' application for
purposes of § 2244(b)." Burris v. Parke, 130 F.3d 782, 783 (7th
Cir. 1997). Otherwise, the requirements and limitations imposed
by the Antiterrorism and Effective Death Penalty Relief Act,
would be ineffectual. Id.
Thus, under the clearly established law of this circuit, Neff's
Motion is nothing more than an attempt to avoid strictures of the
procedural requirements of filing a second or successive motion
under 28 U.S.C. § 2255. Accordingly, before this Court is able to
consider Neff's claims, he must obtain an order from the Seventh
Circuit Court of Appeals authorizing its filing. He is not,
therefore, entitled to relief in this Court at this time, and his
motion is dismissed for lack of jurisdiction. Furthermore, Neff
should be aware that any additional motions attacking his
conviction or sentence are not appropriate in this Court absent a
Certificate of Appealability from the Seventh Circuit Court of
Appeals unless Neff can meet the stringent requirements of
28 U.S.C. § 2244. CONCLUSION
For the reasons set forth above, Neff's Motion for Relief
pursuant to Rule 60(b), which the Court construes as a successive
collateral attack under 28 U.S.C. § 2255, is DISMISSED for lack
of jurisdiction and Neff's Motion to Clarify How Title
18 U.S.C. § 924(e)/USSG § 4B1.4 Does Not Apply is STRICKEN.
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