IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS
April 4, 2012
UNITED STATES OF AMERICA, PLAINTIFF,
TOMMY MITCHELL, DEFENDANT.
The opinion of the court was delivered by: Stiehl, District Judge:
MEMORANDUM & ORDER
Before the Court is defendant's motion to vacate his conviction and sentence (Doc. 151) which he has filed in his criminal case. As the Seventh Circuit noted in Vitrano v. United States, 643 F.3d 229, 233 (7th Cir. 2011):
Any motion filed in the district court that imposed sentence, and substantively within the scope of § 2255, is a motion under § 2255, no matter what title the prisoner plasters on the cover. Call it a motion for a new trial, arrest of judgment, mandamus, prohibition, coram nobis, coram vobis, audita querela, certiorari, capias, habeas corpus, ejectment, quare impedit, bill of review, writ of error, or an application for a Get--Out--of--Jail Card; the name makes no difference. It is substance that controls.
In this case, the defendant previously filed a motion for habeas relief, see, Mitchell v. United States, 94-CV-704-WLB which was dismissed in 1995. He cannot now file a "motion to vacate" in his criminal case. He has not sought, nor received leave of the Seventh Circuit to file a second or successive habeas petition, and this Court therefore cannot consider his motion to vacate and it is DENIED.
IT IS SO ORDERED.
WILLIAM D. STIEHL DISTRICT JUDGE
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