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United States of America v. Damian Y. James

May 10, 2013

UNITED STATES OF AMERICA, PLAINTIFF,
v.
DAMIAN Y. JAMES, DEFENDANT.



The opinion of the court was delivered by: J. Phil Gilbert District Judge

MEMORANDUM AND ORDER

This matter comes before the Court on defendant Damian Y. James' motion under Federal Rule of Civil Procedure 60(b) for relief from his criminal judgment on the grounds that the Court made errors when it considered a prior conviction at James' sentencing (Doc. 476).*fn1 The Government has responded to the motion (Doc. 477).

The Court construes James' motion as a motion under 28 U.S.C. § 2255 to vacate, set aside or correct his sentence despite the fact that it is not explicitly labeled as such. "Any motion filed in the district court that imposed the sentence, and substantively within the scope of § 2255 &1, is a motion under § 2255, no matter what title the prisoner plasters on the cover." Melton v. United States, 359 F.3d 855, 857 (7th Cir. 2004); accord Curry v. United States, 507 F.3d 603, 604 (7th Cir. 2007). James' motion seeks to collaterally attack his sentence, so it is a § 2255 motion.

This is not James' first § 2255 motion. He filed his first motion in March 2011, and the Court denied it as untimely. See James v. United States, 11-cv-188-JPG. In order for the Court to consider a successive petition, the Seventh Circuit Court of Appeals must certify the successive petition pursuant to 28 U.S.C. § 2255(h). Curry, 507 F.3d at 604; Nunez v. United States, 96 F.3d 990, 991 (7th Cir. 1996). It has not done so. Therefore, the Court does not have jurisdiction to entertain the pending § 2255 motion. Accordingly, the Court hereby DISMISSES James' motion (Doc. 476) for lack of jurisdiction.

IT IS SO ORDERED.

J. Phil ...


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