Howell v. USA

Filing 52

ORDER striking 51 Motion to Vacate and directing Howell to SHOW CAUSE in writing why he should not be sanctioned. See Order for details. Signed by Chief Judge David R. Herndon on 12/21/10. (klh, )

Howell v. USA

Doc. 52

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS ROBERT NELSON HOWELL, Plaintiff, v. UNITED STATES OF AMERICA, Defendant. MEMORANDUM and ORDER HERNDON, Chief Judge: To say that Howell is persistent is an understatement. Again, Howell has filed another motion to vacate judgment pursuant to Rule 60(b)(6) Fed.R.Civil.P. in this case (Doc. 51) despite many denials of similar motions (see Docs. 16, 27, 38 & 50); two mandates from the Seventh Circuit dismissing his appeals (see Docs. 35 & 49) and a warning from this Court in this civil case not to file any more pleadings or risk sanctions (Doc. 50). Likewise, Howell has filed similar motions in his criminal case, 98-cr-30200-DRH, relating to his judgment and conviction.1 Also, as noted in previous orders, Howell has filed several other unsuccessful actions in this District No. 01-0607-DRH

O n Novem b e r 17, 2000, the Court sentenced Howell to 360 months im p r is o n m e n t and the C l e r k of the Court entered judgm e n t reflecting the sam e on Novem b e r 27, 2000. Howell did not i m m e d i a t e ly appeal his sentence and judgm e n t . Instead, he filed a petition pursuant to 28 U.S.C. § 2 2 5 5 , which was denied on the grounds that, as part of his plea agreem e n t , he had waived his right t o file such a challenge (Doc. 9). Thereafter on May 5, 2006, in his crim i n a l case, Howell filed a n o t i c e of appeal of his sentence and judgm e n t which the Seventh Circuit dism i s s e d for lack of j u r is d i c t i o n on June 28, 2006.

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challenging his conviction and sentence.2 On March 21, 2007, the undersigned entered an Order warning Howell not to file anymore pleadings in this case or risk the imposition of sanctions.3 Specifically, the Order stated: Howell is now WARNED that should he file anything else in this action, he will be subject to sanctions. See Fed.R.Civ.P. 11. Those sanctions may include the imposition of monetary sanctions, an outright ban on any future filings in this District with respect to his conviction, or both. Howell is FURTHER WARNED that he shall not file any new cases in this District that attempt to challenge his current confinement stemming from the criminal case reference in the caption, above. The only exception will be if the Seventh Circuit authorizes Howell to file a second or sucessive motion under 28 U.S.C. § 2255. Should Howell disregard this warning, he may be subject to sanctions under Rule 11, as detailed above.

(Doc. 50, p. 2). Based on Howell's conduct, the Court finds that sanctions are warranted. Specifically, the Court intends to sanction Howell $1,500.00 for his filings: $1000.00 for the motion to vacate and $500.00 for the power of attorney. Therefore, the Court, pursuant to Fed.R.Civ. P. 11(c)(3), DIRECTS Howell to show cause in writing on or before January 20, 2011 why he should not be sanctioned for filing frivolous motions and for violating the Court's March 21, 2007 Order.4
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S e e , e.g., Howell v. United States , 04-685-DRH (S.D. Ill. Sept. 13, 2004); Howell v. U n i t e d States, 04-0724-DRH (S.D. Ill Oct. 12, 2004); Howell v. Thom p s o n , 04-0945-GPM ( S . D . Ill. Dec. 17, 2004); Howell v. Thom p s o n , 05-0235-WDS (S.D. Ill. April 4, 2005). The Court notes that on February 11, 2009, it ordered Howell not to file any m o r e p l e a d i n g s in his criminal case as it is closed. Despite the Court's Order, Howell continued to file p l e a d i n g s in that matter as well. Rule 11 provides, in pertinent part, that "[b]y presenting to the court a pleading, written m o t io n , or other paper ­ whether by signing, filing, subm i t t i n g , or later advocating it ­ an attorney o r unrepresented party certifies that to the best of the person's knowledge, inform a t i o n , and belief, f o r m e d after an inquiry reasonable under the circum s t a n c e s [ ,] . . . it is not being presented for any i m p r o p e r purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of
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Further, the Court finds that Howell's motion to vacate judgment pursuant to Rule 60(b)(6) Fed.R.Civil.P. is without merit and the Court STRIKES Howell's motion to vacate and power of attorney (Doc. 51). IT IS SO ORDERED. Signed this 21st day of December, 2010.

David R. Herndon 2010.12.21 12:37:55 -06'00'
Chief Judge United States District Court

lit ig a t io n [ .] " Fed. R. Civ. P. 11(b)(1). The rule provides further that "[i]f, after notice and a r e a s o n a b l e opportunity to respond, the court determ i n e s that R u l e 11(b) has been violated, the c o u r t m a y im p o s e an appropriate sanction on any attorney, law firm , or party that violated the rule o r isresponsible for the violation." Fed. R. Civ. P. 11(c)(1). "On its own, the court m a y order an a t t o r n e y , law firm , or party to show cause why conduct specifically described in the order has not v i o la t e d Rule 11(b)." Fed. R. Civ. P. 11(c)(3). "A sanction im p o s e d under this rule m u s t be lim i t e d t o what suffices to deter repetition of the conduct or com p a r a b l e conduct by others sim i l a r l y s i t u a t e d " and "[t]he sanction m a y include nonm o n e t a r y directives" or "an order to pay a penalty i n t o court[.]" Fed. R. Civ. P. 11(c)(4). Finally, "[a]n order imposing a sanction m u s t describe the s a n c t i o n e d conduct and explain the basis for the sanction." Fed. R. Civ. P. 11(c)(6). Rule 11 a p p li e s fully, of course, to pro se litigants. See Vukadinovich v. McCarthy, 901 F.2d 1439, 1 4 4 5 (7th Cir. 1990); Ricketts v. Midwest Nat'l Bank, 874 F.2d 1177, 1182 n.4 (7th Cir. 1 9 8 9 ) ; Hilgeford v. Peoples Bank, 776 F.2d 176, 177-78 (7th Cir. 1985). Also, a court retains j u r is d i c t i o n to im p o s e Rule 11 sanctions notwithstanding the fact that judgm e n t has been entered i n an action and the action has been dism i s s e d . See W i l l y v. Coastal Corp., 503 U.S. 131, 1373 8 (1992); Cooter & Gell v. Hartm a r x Corp., 496 U.S. 384, 395-96 (1990); Pollution Control I n d u s . of Am . , I n c . v. Van Gundy, 21 F.3d 152, 153-54 (7th Cir. 1994).

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