The opinion of the court was delivered by: Stiehl, District Judge
Before the Court is petitioner's pro se motion seeking relief from final judgment pursuant to Fed. Rule Civ. P. 60(b)(4) and a show cause order, or alternatively, transfer of his case to the Court of Appeals (Doc. 30). The Court construes petitioner's request to "transfer" the case to the Court of Appeals as a request for a Certificate of Appealability.
Also before the Court is petitioner's motion to correct clerical error or mistake arising from oversight or omission (Doc. 580), which he filed in his criminal case (91-CR-30018-WDS). The government has filed nothing in response.
Petitioner filed his initial motion pursuant to 28 U.S.C. § 2255 on February 25, 1998 in this civil action (Doc. 1). Petitioner's initial motion was denied and the case was dismissed with prejudice as time barred on June 10, 1998 (Doc. 4). On June 22, 1998, petitioner filed a motion to reconsider the dismissal, which this Court granted (Doc. 6). The Court later granted in part and denied in part the motion to vacate, set aside, or correct sentence as follows: the Court granted the motion as to Count 2 only, and the conviction and sentence on Count 2 was vacated and set aside, and a $50.00 special assessment was refunded to petitioner; petitioner's sentence of life without parole on Counts 1 and 12 were unaffected, and the motion was denied on all other grounds and dismissed with prejudice (Doc. 9). Judgment was entered on this ruling on September 18, 1998 (Doc. 10).
Petitioner appealed this decision, but the Seventh Circuit dismissed the appeal on July 7, 1999 (Collins v. United States, No. 99-2226, 99-2227). While his appeal was pending, petitioner filed a motion for reconsideration with this Court (Doc. 12), which the Court denied on May 12, 1999 (Doc. 17). Petitioner then appealed that decision, and the Seventh Circuit denied his request for a certificate of appealability on July 14, 2000 (Collins v. United States, No. 99-2226, 99-2227).
Petitioner's present motion was filed February 11, 2010, seeking relief from final judgment and the reopening of his § 2255 petition. Petitioner asserts that he is entitled to relief because all of the claims alleged in his § 2255 and Rule 33 motions were not addressed.
I. Successive Petition Pursuant to § 2255
Generally, district courts lack jurisdiction to hear second habeas petitions under § 2255. Curry v. United States, 507 F.3d 603, 605 (7th Cir. 2007); Burton v. Stewart, 549 U.S. 147, 157, 127 S.Ct. 793, 799 (2007). The issue here is whether the instant motion is a "second or successive motion" within the meaning of § 2255 requiring authorization from the Court of Appeals for this Court to have jurisdiction.
Although § 2255 gives jurisdiction over first habeas petitions to the district courts, it states, "[a] second or successive motion must be certified as provided in section 2244 by a panel of the appropriate court of appeals...." Petitioner now contends that his recent motion is not a second motion within the meaning of § 2255 because the Court failed to consider or resolve an issue squarely presented and thus the defect does not lie in the Court's resolution of the merits but is a "true" 60(b) claim. In his present motion petitioner, however, cites arguments he made in his previous petition and then cites the Court's Order in which the Court, in fact, addresses those arguments.
Petitioner also relies heavily on Gonzalez v. Crosby, 545 U.S. 524 (2005) in support of his argument that he is attacking the integrity of the habeas proceeding and not the previous decision or raising new issues. In Gonzalez, the Supreme Court considered the effect of the Antiterrorism and Effective Death Penalty Act of 19996 ("AEDPA"), codified at 28 U.S.C. § 2244(b), on Rule 60(b) motions in habeas cases. Id. at 526. The Supreme Court stated that "Rule 60(b), like the rest of the Rules of Civil Procedure, applies in habeas corpus proceedings under 28 U.S.C. § 2254 only 'to the extent that [it is] not inconsistent with' applicable federal statutory provisions and rules." Id. at 529.
Moreover, second or successive habeas petitions are subject to three requirements: (1) any claim that has already been adjudicated in a previous petition must be dismissed; (2) any claim that has not already been adjudicated must be dismissed unless it relies on either a new and retroactive rule of constitutional law or new facts showing a high probability of actual innocence; and (3) before the district court may accept a successive petition for filing, the court of appeals must determine that it presents a claim not previously raised that is sufficient to meet § 2244(b)(2)'s new-rule or actual-innocence provisions. Id. at 529-30.
Notably, the Gonzalez case is based on Rule 60(b) in habeas proceedings under § 2254, and not § 2255, under which the petitioner here applied for relief. Id. at 530. Bearing that in mind, the Supreme Court concluded that "[v]irtually every Court of Appeals to consider the question has held that such a pleading, although labeled a Rule 60(b) motion, is in substance a successive habeas petition and should be treated accordingly" and that those holdings are correct. Id. at 531. The Court opined that any type of attack on the merits of the proceeding are second or successive petitions, while motions regarding non-merits aspects should not be treated as second or successive. Id. at 534. Where there is no substantive claim presented but instead, the petitioner presents an issue regarding a ruling that precluded a merits determination (such as dismissal on statute of limitations grounds), then the petition is ...