The opinion of the court was delivered by: MICHAEL McCUSKEY, District Judge
On December 20, 2005, Petitioner, Steven W. Snook, filed a
document entitled "Combined Motion to Toll Statute of
Limitations, and to Modify Nunc Pro Tunc the Sentence Pursuant to
Fed.R.Crim.Proc. Rule 35(A), and/or Title
18 U.S.C. § 3582(C)(1)(B) and (B)(1) and (2)" (#1). Petitioner included the
case number of his criminal case, 03-20034, on the document. In
his Motion (#1), Petitioner is asking this court to correct his
sentence, which he claims was based upon a misapplication of the
Sentencing Guidelines predicated on an erroneous, and since
invalidated, interpretation of the law. Petitioner was sentenced
on November 14, 2003, to a term of 262 months.
This court initially notes that "[o]nce a district court enters
a final judgment (which in a criminal case means the sentence) it
lacks jurisdiction to continue hearing related issues, except to
the extent authorized by statute or rule." United States v.
Campbell, 324 F.3d 497, 500 (7th Cir. 2003) (Easterbrook,
J., concurring). This court concludes that it does not have
jurisdiction to entertain a motion to correct Petitioner's
sentence pursuant to Rule 35 of the Federal Rules of Criminal
Procedure or 18 U.S.C. § 3582. Nothing in Rule 35 or the statute
allows for the relief sought by Petitioner. Therefore, this court
concludes that it lacks jurisdiction, in the criminal case, to
grant the relief sought by Petitioner. See United States v.
Montana, 2003 WL 21801029, at *1 (N.D. Ill. 2003).
This court concludes that Petitioner is seeking relief that he
can only obtain through 28 U.S.C. § 2255. Therefore, Petitioner's
Motion can only properly be construed as a Motion Pursuant to 28 U.S.C. § 2255 to vacate, set aside or correct the sentence.
A postconviction motion that is functionally, substantively, a
motion under section 2255 should be treated as such, even if
labeled differently. United States v. Henderson, 264 F.3d 709,
710 (7th Cir. 2001), citing United States v. Evans,
224 F.3d 670 (7th Cir. 2000).
Accordingly, pursuant to Castro v. United States,
540 U.S. 375, 383 (2003), this court is now advising Petitioner of this
court's intent to characterize the Motion as one under § 2255 and
warns Petitioner that this characterization will subject any
subsequent § 2255 motion to the restrictions applicable to second
or successive § 2255 motions (see 28 U.S.C. § 2255 ¶ 8). This
court further advises Petitioner that he has the opportunity to
withdraw the Motion, if he does not want it to be considered a
Motion under § 2255, or to amend it to include every § 2255 claim
that he believes that he has. Castro, 540 U.S. at 383; see
also Nolan v. United States, 358 F.3d 480, 482 (7th Cir.
IT IS THEREFORE ORDERED THAT:
(1) Petitioner's Motion will be construed by this court as a
Motion Pursuant to 28 U.S.C. § 2255. Petitioner is allowed thirty
(30) days from the date of this Order to withdraw his Motion if
he does not want to proceed under 28 U.S.C. § 2255 or to amend
his Motion to include every § 2255 claim that he believes that he
(2) If Petitioner does not withdraw or amend his Motion, the
Government is allowed until January 23, 2006, to file its
Response to Petitioner's Motion. If Petitioner amends his Motion
within 30 days, the Government is allowed 30 days from the date
of the amended Motion to file its Response.
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