The opinion of the court was delivered by: Joe Billy McDADE United States District Judge
This matter is before the Court on Petitioner's "Motion to Expunge Conviction Pursuant to Rule 33(b)(1)," ("Motion") originally filed under his criminal case before this Court. (00-cr-10033, Doc. 47; 09-cv-1351, Doc. 1). Petitioner's Motion alleges that the calculation of his sentence under 18 U.S.C. § 922(g) was illegitimately based on a prior conviction for burglary, which he claims is not a "violent felony" within the terms of § 922(g);*fn1 he appears to also make other arguments relating to his current health and the restoration of his civil rights following his 1983 discharge from parole or prison.
On October 16, 2009, this Court, out of an abundance of caution, ordered Respondent to respond to Petitioner's Motion under Rule 33(b)(1). In addition, the Court read Petitioner's Motion as potentially raising a claim under 28 U.S.C. § 2255, and so ordered Respondent to address this potential claim, as well.*fn2 (00-cr-10033, Doc. 48; 09-cv-1351, Doc. 3). Respondent has filed its ordered responses, and Petitioner has filed objections to Respondent's responses.*fn3 (00-cr-10033, Docs 52 & 54; 09-cv-1351, Docs. 11 & 12). The Court now disposes of both matters in this Opinion & Order. For the following reasons, Petitioner's Motion under Rule 33(b)(1) is denied, and this Court has no jurisdiction at this time over any potential § 2255 claim that Petitioner raises, so it is also denied.
FEDERAL RULE OF CRIMINAL PROCEDURE 33(B)(1)
As the Court noted in its October 16, 2009 Order, Federal Rule of Criminal Procedure 33 allows a court to vacate its judgment and grant a new trial on the defendant's motion, if justice so requires. This rule allows for the filing of this motion within seven days of conviction for most matters, and within three years of the date the defendant was convicted if the motion is based on newly discovered evidence.*fn4 FED. R. CRIM. PRO. 33(b)(1)-(2). Petitioner was convicted in 2001, and filed his Motion eight years later, in 2009. Petitioner's Motion under Rule 33(b)(1) is therefore time-barred.
Petitioner argues that the Court's October 16, 2009 Order "gave jurisdiction" over the Rule 33(b)(1) claim, and made the Motion "retroactive" such that it is no longer time-barred. (00-cr-10033, Doc. 54 at 1, 3; 09-cv-1351, Doc. 12 at 1, 3). The Court's Order did not have the claimed effect. In an effort to ensure careful consideration of Petitioner's claims, the Court ordered Respondent to address whether the Rule 33(b)(1) claim was barred; the Court did not make any change to the timing requirements of the Rule. Indeed, Federal Rule of Criminal Procedure 45(b)(1)(B) provides that the Court may only grant an extension of time to file a motion for good cause "if the party failed to act because of excusable neglect." Petitioner has shown no such grounds for a finding of excusable neglect, and the Court has no good cause to extend Petitioner's time for filing a Rule 33(b)(1) motion. Petitioner's Rule 33(b)(1) Motion is therefore time-barred.
As noted above, the Court found on October 16, 2009 that Petitioner's Motion could raise a claim under § 2255.*fn5 Even if it is construed as a motion under § 2255, though, Petitioner cannot proceed with his claims in this Court at this time. Under § 2255(h), "[a] second or successive motion must be certified as provided in section 2244 by a panel of the appropriate court of appeals." To the extent that Petitioner's Motion raises a § 2255 claim, it is barred by § 2255(h) as a second or successive motion.
On August 19, 2002, Petitioner filed a § 2255 motion, which the Court dismissed without prejudice on October 24, 2002, for failure to allege sufficient facts. (02-cv-1284, Doc. 6). The Court specifically granted Petitioner leave to re-file his Petition at a later date. As the Court noted in its October 16, 2009 Order, that motion does not bar a new § 2255 motion. (00-cr-10033, Doc. 48 at 2 fn. 1; 09-cv-1351, Doc. 3 at 2 fn. 1).
As pointed out by Respondent, though, on May 13, 2003, Petitioner filed a second § 2255 motion attacking his sentence in this Court. (03-cv-1158, Doc. 1). On August 26, 2003, the Court denied Petitioner's motion on the merits.*fn6 (03-cv-1158, Doc. 9). Thus, under § 2255(h), the Court has no jurisdiction to hear a third § 2255 Motion from Petitioner. Melton v. U.S., 359 F.3d 855, 857 (7th Cir. 2004) ("district court thus lacks jurisdiction to entertain any further collateral proceedings unless [the Court of Appeals] first grants permission"); Nunez v. U.S., 96 F.3d 990, 991 (7th Cir. 1996) ("The district court had no option other than to deny the [subsequent § 2255] petition. No matter how powerful a petitioner's showing, only [the Court of Appeals] may authorize the commencement of a second or successive petition."). If Petitioner wishes to proceed under § 2255, he must obtain approval from the Court of Appeals.
Petitioner argues that in this Court's October 16, 2009 Order, the Court "ordered [that the] petition previous filing of a 2255 petition will not bar his ability to pursue a 2255 petition at this time." (09-cv-1351, Doc. 9 at 2). It is true that in the October 16, 2009 Order, the Court, discussing Petitioner's 2002 § 2255 motion, stated that "Petitioner's previous filing of a § 2255 petition will not bar his ability to pursue a § 2255 petition at this time." In making that determination, though, the Court was only aware of the 2002 § 2255 motion, not the subsequent 2003 § 2255 motion, which, as discussed above, was denied on the merits and bars any subsequent § 2255 motions without leave from the Court of Appeals. Petitioner misunderstands the import of this footnote: it did not, nor does the Court have the power to, change the requirements of § 2255(h). See Nunez, 96 F.3d at 991 ("only [the Court of Appeals] may authorize the commencement of a second or successive petition"). The footnote was merely an attempt to clarify the circumstances of the present matter, and does not bind the Court's disposition of the present § 2255 Motion now that the 2003 § 2255 motion has been brought to the Court's attention. This Court therefore cannot hear Petitioner's potential § 2255 Motion.
As the Court has found that Petitioner's Rule 33(b)(1) challenge is time-barred and his potential § 2255 challenge is a "second or successive" motion barred by § 2255(h), the Court need not discuss the merits of Petitioner's claims. ...