April 29, 2013
TONY CASTINO RUTHERFORD, Petitioner,
UNITED STATES OF AMERICA, Respondent.
MICHAEL P. McCUSKEY, District Judge.
On April 22, 2013, Petitioner, Tony Castino Rutherford, filed a pro se Motion Pursuant to Rule 60(b) of the Federal Rules of Civil Procedure (#58). The Motion, Memorandum and attachments are 112 pages long.
It is clear from Petitioner's Motion and Memorandum that he is seeking relief that is only available under 28 U.S.C. § 2255. Petitioner's Motion is directly addressed to the merits of his desire for collateral relief, something he can only seek under § 2255. See Phillips v. United States , 668 F.3d 433, 435 (7th Cir. 2012). Thus, although styled as a Motion under Rule 60(b), Petitioner's Motion is properly understood as a request for relief under 28 U.S.C. § 2255. See United States v. Carraway , 478 F.3d 845, 849 (7th Cir. 2007), citing Gonzalez v. Crosby , 545 U.S. 524, 531 (2005). If a Rule 60(b) motion is really a successive Motion under § 2255, the district court lacks jurisdiction unless the prisoner has obtained permission from the appropriate Court of Appeals to file it. See Curry v. United States , 507 F.3d 603, 604 (7th Cir. 2007).
Petitioner has already filed two Motions under 28 U.S.C. § 2255. On March 11, 2010, Petitioner filed a Motion to Vacate, Set Aside or Correct Sentence under § 2255 (#1). On October 29, 2010, this court entered an Opinion (#17) and dismissed Petitioner's pro se Motion because Petitioner had waived his right to file a Motion under § 2255 in his written plea agreement. Petitioner filed a Notice of Appeal from this court's ruling. On May 16, 2011, the Seventh Circuit issued its Mandate (#33). The Seventh Circuit denied Petitioner's request for a certificate of appealability, finding no substantial showing of the denial of a constitutional right. On January 17, 2012, Petitioner filed a second Motion under § 2255 (#42). This court entered an Opinion (#45) and dismissed it for lack of jurisdiction. Petitioner appealed, and the Seventh Circuit again denied his request for a certificate of appealability (#57).
In his current pro se Motion purportedly brought pursuant to Rule 60(b), Petitioner has set forth an elaborate recitation of events and case law. However, under the Anti-Terrorism and Effective Death Penalty Act (AEDPA), "prisoners are entitled to a single unencumbered opportunity to pursue collateral review." Vitrano v. United States , 643 F.3d 229, 233 (7th Cir. 2011). "The AEDPA prohibits prisoners from filing a second or successive § 2255 motion unless they obtain certification to do so from the court of appeals." Vitrano , 643 F.3d at 233, citing 28 U.S.C. § 2255(h). A § 2255 motion need not be adjudicated on the merits in order to "count" as a prisoner's first motion for AEDPA purposes. Vitrano , 643 F.3d at 233. In fact, this court's dismissal of Petitioner's first § 2255 Motion based upon Petitioner's waiver of his right to file a collateral attack under § 2255 was a dismissal with prejudice, because it was based on an incurable defect (waiver) preventing review on the merits. See Daniels v. United States, 2010 WL 3279333, at *1 (E.D. Wis. 2010); see also Rutherford v. United States, 2012 WL 195614, at *1 (C.D. Ill. 2012). The dismissal with prejudice constitutes a decision on the merits for purposes of successive habeas petitions. See Daniels, 2010 WL 3279333, at *1.
Accordingly, Petitioner's Motion (#58) is successive and this court has no jurisdiction to hear a second or successive motion under § 2255 unless the Seventh Circuit Court of Appeals has issued an order authorizing the district court to consider the motion. See 28 U.S.C. § 2244(b)(3)(A); Carraway , 478 F.3d at 849; Nunez v. United States , 96 F.3d 990, 991 (7th Cir. 1996). "A district court must dismiss a second or successive petition, without awaiting any response from the government, unless the court of appeals has given approval for its filing." Nunez , 96 F.3d at 991 (emphasis in original).
In this case, the Seventh Circuit has not authorized the filing of this second or successive motion brought under § 2255. Consequently, this court is without jurisdiction to entertain Petitioner's Motion and it must be dismissed. See Nunez , 96 F.3d at 991.
IT IS THEREFORE ORDERED THAT Petitioner's pro se Motion (#58) is dismissed for lack of jurisdiction.