The opinion of the court was delivered by: Joe Billy McDADE United States Senior District Judge
This matter is before the Court on Petitioner's several motions attacking this Court's August 12, 2009 dismissal, as untimely, of his motion under 28 U.S.C. § 2255. (Docs. 8, 9, 10, 11, 12, & 13). Each filing is considered in turn. For the reasons stated below, each motion is dismissed or denied.
Petitioner was sentenced in this Court in June 2006 on an earlier jury verdict finding him guilty of conspiracy to distribute and possession with intent to distribute cocaine and methamphetamine. (05-cr-40051, Docs. 44 & 86). This conviction was affirmed on appeal.*fn1 (05-cr-40051, Doc. 110; U.S. v. Miles, 244 Fed.Appx. 31 (7th Cir. 2007). He filed his Motion to Vacate, Correct, or Set Aside Sentence under § 2255 on October 14, 2008.*fn2 (Doc. 1). On November 3, 2008, after conducting the preliminary review required by Rule 4 of the Rules Governing Section 2255 Proceedings for the United States District Courts, the Court determined that all of Petitioner's claims except his speedy trial act claim plainly had no merit, and ordered Respondent to respond to the Motion. (Doc. 3). Respondent filed a Motion to Dismiss Petitioner's Motion as untimely, which the Court granted on August 12, 2009.*fn3 (Docs. 4 & 6; Miles v. U.S., 08-CV-4058, 2009 WL 2496732 (C.D. Ill. Aug 12, 2009)). Respondent has followed this decision with the several motions addressed in this Opinion & Order.
In Petitioner's criminal case, on June 23, 2009, the Court received a Motion to Dismiss for Constitutional Violations Related to Federal Rule of Civil Procedure 6, which it denied. (05-cr-40051, Doc. 123; 05-cr-40051, 6/23/10 Text Order). Petitioner followed this with a Motion for Reconsideration, which was also denied. (05-cr-40051, Doc. 124; 05-cr-40051, 7/13/10 Text Order). On March 1, 2010, the Court of Appeals determined that this Court should not have denied Petitioner's motions, but rather should have construed them as second or successive § 2255 motions, which require precertification from the Court of Appeals, and dismissed them for lack of jurisdiction, as the Court of Appeals had not granted such precertification; the Court of Appeals remanded the matter to this Court for such action. (05-cr-40051, Doc. 137). On March 2, 2010, this Court, following the mandate of the Court of Appeals, construed Petitioner's attacks on his sentence as successive § 2255 motions and dismissed them for want of jurisdiction. (05-cr-40051, Doc. 138).
MOTION FOR RECONSIDERATION AND REQUEST FOR SPECIFIC FINDINGS OF FACT AND LAW (DOC.8)
Petitioner's first Motion for Reconsideration under Federal Rule of Civil Procedure 59(e) was received by the Court on August 31, 2009; he states that it was sent on August 26, 2009. (Doc. 8). As it stood prior to December 1, 2009, Rule 59(e) provided that motions to alter or amend the judgment must be filed within 10 days of entry of judgment, and Rule 6 provided that when calculating periods of less than eleven days, intervening weekends must be omitted. This Court entered judgment on Petitioner's § 2255 motion on August 14, 2009. (Doc. 7). As Petitioner certified in the motion that he had mailed it on August 26, 2009, his Rule 59(e) motion was timely.*fn4
A party seeking to alter or amend a judgment pursuant to Rule 59(e) generally must demonstrate newly discovered evidence, an intervening change in the controlling law, or a manifest error of law that would lead the Court to correct the error. Cosgrove v. Bartolotta, 150 F.3d 729, 732 (7th Cir. 1998); Moro v. Shell Oil Co., 91 F.3d 872, 876 (7th Cir. 1996). In this case, the Court determined that Petitioner's § 2255 motion was untimely, so, in order to grant Petitioner's Rule 59(e) motion, it must find that that determination was in error.
Most of the issues raised by Petitioner in his Rule 59(e) motion are really restatements of the merits of the arguments made in his § 2255 motion, or new arguments against his conviction, and are not directed toward the Court's decision that his § 2255 motion was untimely; these issues are considered first. Petitioner argues, in this first Motion for Reconsideration, that there is newly discovered evidence that the statutes under which he was convicted are invalid and that the courts profit from convictions by selling "conviction bonds."*fn5 (Doc. 8 at 3). He also cites "newly discovered evidence" that records relating to himself were concealed by the government, and that the prosecutors improperly received bonuses and financial incentives for his prosecution and conviction. (Doc. 8 at 3). Finally, Petitioner cites a number of "clear errors of law and fact" that supposedly undermine his conviction: the statutes under which he was convicted are invalid; the Court was "practicing law from the bench, acting as a second prosecutor;" the Court "is acting in violation of 28 USC section 454 and 455 and is interfering with Petitioner's right to justice;" the Court acted without jurisdiction; the government concealed evidence; and the government failed to disclose the alleged financial incentives of the prosecutors. (Doc. 8 at 4). Each of these clearly relate to Petitioner's underlying conviction, either as new arguments or as attempts to re-hash the arguments made in his § 2255 motion, not to the Court's determination that his § 2255 motion was untimely, and therefore do not show that the Court made an error in that decision.
There are a few issues raised in the first Motion for Reconsideration that do attack the Court's handling of his § 2255 motion, rather than his conviction, but none of them warrants alteration or amendment of the Court's judgment on the § 2255 motion. He claims that "[b]ased on the verified pleadings in the case the Petitioner was entitled to relief;" that the "failure to cite case law by the court to support its order leaves the order as void for vagueness, conclusory, and contrary to law;" that the "court violated Due Process by ignoring the plain language of 28 USC section 2255, et seq, which required a hearing on Petitioner's claims;"*fn6 that the "court committed fraud by not reading the pleadings and by failing to follow the law as established by the Constitution and the Supreme Court;"*fn7 that the "government committed fraud by misrepresenting to the court in its Motion to Dismiss the date of the filing of the 2255 and by failing to notify the court of the Supreme Court filing by Miles which stayed the proceedings related to his 2255 motion;"*fn8 and that "the court committed fraud by failing to make findings of fact and conclusions of law on all of Petitioner's claims."*fn9 (Doc. 8 at 4). None of these claims, even if true, would change the fact that Petitioner's § 2255 motion was untimely, and therefore they do not lead the Court to alter or amend that determination.
The only arguments relating to the timeliness of Petitioner's § 2255 motion are that it was filed on October 7, 2008, contrary to the Court's determination that it was filed on October 14, 2008, and that his time to file was tolled by a "direct" habeas corpus petition to the Supreme Court, which was filed on October 11, 2007 and denied on February 19, 2008. (Doc. 8 at 2). First, the Court's determination that Petitioner did not properly certify the mailing of his motion under the "mailbox rule" was correct; no such certification appears in the § 2255 motion. (Doc. 1). Even if the Court were to consider the October 7, 2008 mailing date Petitioner advocates, the motion would still be untimely, as his conviction became final on October 1, 2007, and his § 2255 motion was therefore due on October 1, 2008.
Neither does Petitioner's October 11, 2007 Supreme Court filing toll the one-year statute of limitations in § 2255(f). As discussed by the Court in its August 12, 2009 Opinion & Order, § 2255(f)(1), the date that Petitioner's judgment of conviction became final begins the one-year limitations period; Petitioner does not contest this. Following the Court of Appeals' affirmance of this Court's judgment on July 3, 2007, Petitioner had ninety days in which to petition for certiorari to the Supreme Court, which ran out on October 1, 2007, which is when his judgment became final. According to the instant motion, Petitioner filed his petition with the Supreme Court on October 11, 2007. To the extent that this constituted a petition for certiorari, it was untimely and therefore did not have the effect of tolling the one-year limitations period. To the extent that it was indeed a "direct" habeas petition, it was not a petition for certiorari and thus did not disturb the finality of the judgment of conviction.*fn10 The "judgment of conviction becomes final when the time expires for filing a petition for certiorari contesting the appellate court's affirmation of the conviction." Clay v. U.S., 537 U.S. 522, 525 (2003). Because none of the reasons advanced by Petitioner show that the Court's determination that his § 2255 motion was untimely was in error, his Rule 59(e) motion is denied.
SUPPLEMENT TO 60(B) MOTION AND REQUEST FOR DISMISSAL OF INDICTMENT FOR COURT FRAUD (DOC.9)
This motion was received by the Court on October 7, 2009, and is thus unquestionably a Rule 60(b) motion. A Rule 60(b) motion that attacks the petitioner's underlying conviction must be construed as a second or successive § 2255 motion and dismissed for want of jurisdiction by the district court under § 2255(h). Curry v. U.S., 307 F.3d 664, 665 (7th Cir. 2002). This motion is entirely concerned with the grand jury proceedings supporting Petitioner's underlying criminal indictment, and therefore must be construed as a successive § 2255 motion and dismissed for want of jurisdiction. The substance of this filing is duplicated in Petitioner's January 19, 2010 filing ...