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Howell v. United States

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS


January 25, 2006

ROBERT NELSON HOWELL, PETITIONER/DEFENDANT,
v.
UNITED STATES OF AMERICA, RESPONDENT/PLAINTIFF.

The opinion of the court was delivered by: Herndon, District Judge

MEMORANDUM AND ORDER

Robert Nelson Howell is persistent, to say the least. He refuses to let this case die, despite the many fatal wounds that have been inflicted upon it.*fn1 A brief recap of the proceedings follows:

The Court denied Howell's motion under 28 U.S.C. § 2255, finding that his guilty plea was knowing and voluntary and, consequently, that this Section 2255 motion was barred by the waiver provisions in the plea agreement. After filing an unsuccessful motion for reconsideration, Howell then filed a notice of appeal; his motion for issuance of a certificate of appealability was denied by both this Court and the Seventh Circuit Court of Appeals. Howell then filed another motion to vacate judgment pursuant to Rule 60(b), which the Court also denied. On appeal, the Seventh Circuit found that because Howell attempted to present new claims in his Rule 60(b) motion, that motion should have been construed as a second collateral attack on his conviction. Therefore, the Seventh Circuit vacated that order and remanded the case "for a jurisdictional dismissal," which was done on February 1, 2005.

Now, almost one year later, Howell has filed yet another motion to vacate judgment (Doc. 37).*fn2 In this motion, he "contends that the District Court erred when determining his Rule 60(b)(6) motion was a second or successive § 2255." However, that determination was not made by this Court in the first instance; rather, that determination was made by the Seventh Circuit. In essence, Howell asks this Court to overrule the Seventh Circuit's holding, something this Court simply does not have the power to do.

In short, the instant motion is DENIED.

IT IS SO ORDERED.

David R Herndon DISTRICT JUDGE


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