Bell v. Schwartz et al

Filing 65

MEMORANDUM Order Signed by the Honorable Milton I. Shadur on 7/11/2012:Mailed notice(srn, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
UNITED STATES OF AMERICA ex rel.
TERRELL BELL #B17431,
Petitioner,
v.
DONALD GAETZ, Custodian,
Respondent.

)
)
)
)
)
)
)
)
)
)
)

No. 10 C 4334
USCA No. 10-2979
(see also No. 09 C 7616)

MEMORANDUM ORDER
This Court’s recent printout of a Clerk’s Office compendium
of motions listed as “pending” in cases assigned to its calendar
has turned up such a motion in a long-since closed action--the 28
U.S.C. §2254 Petition for Writ of Habeas Corpus (“Petition”) that
had been brought pro se by Terrell Bell (“Bell”).

Although Bell

has labeled his June 8, 2012 filing as “Petitioner’s R.60(b)
Motion for Relief from Judgment,” more than one aspect of the
current filing is puzzling.
For example, Bell expressly acknowledges (1) that in August
2010 this Court declined Bell’s application for a certificate of
appealability (“COA”), (2) that on May 16, 2011 the Court of
Appeals issued a like COA denial (treating Bell’s notice of
appeal as an application for such a certificate) and (3) that the
Court of Appeals denied Bell’s petition for rehearing on June 9,
2011.

Yet the opening sentence of Bell’s current motion asks for

vacation of a judgment of April 30, 2012--a later date that is

wholly without any mention in the court record.
But more importantly, Bell has said nothing to bring himself
within the purview of Fed. R. Civ. P. (“Rule”) 60(b), both as a
substantive matter and in light of the Rule 60(c) requirement
that such a motion “must be made within a reasonable time.”
Although the relief that Bell requests in his motion is for the
“Court of Appeals to enter an order to vacate judgment and issue
a Certificate of Appealability,” this Court is aware that the
Court of Appeals looks first to the District Court to address
that question, after which the petitioner may seek relief from
the Court of Appeals.

Hence this Court holds that it sees no

predicate for issuance of a COA, and it is transmitting a copy of
this statement to the Court of Appeals for its information.

________________________________________
Milton I. Shadur
Senior United States District Judge
Date:

July 11, 2012

2