The opinion of the court was delivered by: David R Herndon Chief Judge United States District Court
I. Introduction and Procedural Background
Pending before the Court are several motions filed by Wyatt: petitioner's in pro-se motion for reconsideration of Rule 60(b)(4) motion, due to the Court's use of inferior law and precedent contrary to the United States Supreme Court, and rendering the Court's April 22, 2008 a void judgment (Doc. 42); petitioner's notice and motion for modification of sentence, based upon new Supreme Court law resolving prior conflict (Doc. 47); petitioner's ex parte motion for release from custody, without surety, or in the alternative, on home detention pending final review on motion for modification of sentence, based upon new Supreme Court law (Doc. 48); petitioner's conditional request for certificate of appealability (Doc. 49); notice and motion for judicial review and finding under Rule 60(b)(4) as per 7th Circuit Court of Appeals concurrence with petitioner (Doc. 52); motion to correct filing error on petitioner's motion for modification of sentence (Doc. 53) and motion for correction of the Court's May 29, 2008 Order, in prevention of further malversation by the Court, and that the record be preserved for appeal for potential appellate review (Doc. 54). The Government opposes Wyatt's motions in a motion to deny petitioner's various claims for relief based on lack of jurisdiction (Doc. 57). Based on the following, the Court DISMISSES for lack of jurisdiction all of Wyatt's motions.
On May 24, 2004, Wyatt entered a plea of guilty, pursuant to a conditional plea agreement, to possession with the intent to distribute over 100 kilograms of marijuana, in violation of 21 U.S.C. § 841(a)(1) (United States v. Wyatt, 02-30060-DRH; Docs. 31 & 32). The conditional plea agreement specifically reserved the right to appeal the Court's denial of Wyatt's motion to suppress. On August 30, 2004, the Court sentenced Wyatt to 262 months imprisonment, eight years supervised release, a fine of $500.00 and a special assessment of $100.00 (Id. at Doc. 44). A Sentencing Order and Judgment reflecting the same were entered on August 31, 2004 (Id. at Docs. 43 & 47). On August 24, 2004, Wyatt filed his notice of appeal (Id. at Doc. 48). The Seventh Circuit affirmed Wyatt's conviction and sentence on May 16, 2005. See United States v. Wyatt, 133 Fed. Appx. 310 (7th Cir. 2005).
Thereafter, Wyatt filed a § 2255 petition on April 26, 2006 (Doc. 1). On October 11, 2006, Wyatt filed a supplement to his petition (Doc. 4). Wyatt's petition raised a mickle (twenty-nine to be exact) of arguments regarding ineffective assistance of counsel during his criminal case. On February 5, 2007, the Government filed its opposition to the petition and supplement (Doc. 12). Wyatt filed a reply on February 28, 2007 (Doc. 13).*fn1 On February 7, 2008, the Court denied Wyatt's § 2255 petition in its entirety and dismissed it with prejudice (Doc. 24). The next day, the Clerk of the Court entered judgment reflecting the same (Doc. 25).
On February 25, 2008, Wyatt filed his notice of appeal and application requesting certificate of appealability (Docs. 26 & 27). The Court denied Wyatt's motion for certificate of appealability on February 27, 2008 (Doc. 29) and granted Wyatt leave to proceed in forma pauperis on appeal on March 12, 2008 (Doc. 36).
Subsequently, Wyatt filed a notice of motion and motion to vacate judgment and grant motion for summary judgment, in motion to vacate conviction (28 U.S.C. §2255) based on new law; FedRCivP., Rule 56(e)(2); FedRCivP., 60(b)(4) (Doc. 40).*fn2 The Court denied Wyatt's motion bases on lack of jurisdiction on April 22, 2008 (Doc. 41).
Thereafter, Wyatt filed a motion to reconsider and a writ of mandamus as to the Court's denial of his motion to vacate (Docs. 42 & 43, respectively). On May 23, 2008, the Seventh Circuit issued an Order as to Wyatt's request for mandamus stating:
The following is before the court: PETITIONER IN PRO-SE WRIT OF MANDAMUS FOR REMAND TO DISTRICT COURT FOR DECISION ON MOTION PER FED.R.CIV.P., RULE 60(b)(4), PENDING CERTIFICATE OF APPEALABILITY IN 28 U.S.C. 2255 ACTION, filed on May 12, 2008, by the pro se petitioner.
The district court has jurisdiction after an appeal has been filed to either deny a Rule 60(b) motion or to indicate its inclination to grant such a motion. See Boyko v. Anderson, 185 F.3d 672, 675 (7th Cir. 1999). If the district court indicates its inclination to grant the motion, the petitioner may file a motion pursuant to Circuit Rule 57 and this court will remand the case. Accordingly,
IT IS ORDERED that any request for mandamus relief is unnecessary and this appeal is DISMISSED.
Wyatt then filed three motions seeking all sorts of relief: a modification of his sentence; release from custody and a certificate of appealability on May 28, 2008 (Docs. 47, 48 & 49, respectively). The next day, the Court entered an Order directing Wyatt to address the Court's jurisdiction regarding the pending motions and allowing the United States time to respond to Wyatt's response (Doc. 51). A couple of days later, Wyatt filed a motion for judicial review and finding under Rule 60(b)(4), as per 7th Circuit Court of Appeals Concurrence with petitioner on June 2, 2008 (Doc. 52). After that, Wyatt filed two more motions on June 13, 2008: a motion to correct filing error on petitioner's motion for a modification of sentence FRCVP, Rule 8, 60(a) (Doc. 53) and a motion for correction of the Court's May 29, 2008 Order in ...