Mitchell v. USA

Filing 37

ORDER DISMISSING 35 motion for relief from judgment for lack of jurisdiction. A certificate of appealability will not be issued. Signed by Judge William D. Stiehl on 8/14/2013. (bjw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
DERRICK S. MITCHELL,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

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No. 02-CV-906-WDS
No. 97-CR-30089-06-WDS

ORDER
STIEHL, District Judge:
The Court originally dismissed petitioner Derrick S. Mitchell’s motion to vacate,
set aside, or correct his sentence under 28 U.S.C. § 2255 in January 2003 (Doc. 3). He later
filed a petition for habeas review and a motion for reconsideration, both of which were denied because he had not obtained leave from the court of appeals to file a second or successive § 2255 motion. Petitioner now moves for relief from judgment under Federal Rule of
Civil Procedure 60(b)(5) (Doc. 35). He asks the Court to reopen this § 2255 action in light
of the Supreme Court’s decision in Alleyne v. United States, --- U.S. ----, 133 S.Ct. 2151
(2013). 1
Though petitioner calls it a Rule 60(b)(5) motion, it is the substance of his motion
that controls. Obriecht v. Raemisch, 517 F.3d 489, 493 (7th Cir. 2008); Curry v. United
States, 507 F.3d 603, 604 (7th Cir. 2007). And, in the context of a motion to vacate, set
aside, or correct a sentence under § 2255, the Federal Rules of Civil Procedure may be applied only “to the extent that they are not inconsistent with any statutory provisions.” 28
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In Alleyne, the Court held: “Any fact that, by law, increases the penalty for a crime is an ‘element’ that must
be submitted to the jury and found beyond a reasonable doubt. Mandatory minimum sentences increase the
penalty for a crime. It follows, then, that any fact that increases the mandatory minimum is an ‘element’ that
must be submitted to the jury. 133 S.Ct. at 2155 (citation omitted).

U.S.C. § 2255 Rule 12. One statutory provision, 28 U.S.C. § 2255(h), limits the filing of
successive motions; federal prisoners “are entitled to a single unencumbered opportunity to
pursue collateral review.” Vitrano v. United States, 643 F.3d 229, 233 (7th Cir. 2011). To
file a successive motion, the prisoner must obtain certification from a panel of the court of
appeals that the motion contains either newly discovered evidence or a new rule of constitutional law. § 2255(h); 2244(a); Vitrano, 643 F.3d at 233. Otherwise, the district court
lacks jurisdiction to consider it. Nunez v. United States, 96 F.3d 990, 991 (7th Cir. 1996).
Due to those limitations, any motion that is functionally a § 2255 motion must be treated as
a § 2255 motion. Curry, 507 F.3d at 604; Hare v. United States, 688 F.3d 878, 880 (7th
Cir. 2012); see also Gonzalez v. Crosby, 545 U.S. 524, 531 (2005).
Any motion that challenges the legality of the prisoner’s detention and seeks release from prison is functionally a § 2255 motion. Curry, 507 F.3d at 604. That includes a
motion attacking the district court’s “previous resolution of a claim on the merits.” Gonzalez, 545 U.S. at 532. It also includes a motion claiming a subsequent change in substantive
law justifies relief under Rule 60(b)(6). Id. at 531 (citing Dunlap v. Litscher, 301 F.3d 873,
876 (7th Cir. 2002)).
Here, petitioner’s motion for relief from judgment, though labeled a Rule 60(b)(5)
motion, contends that a subsequent change in substantive law (Alleyne) justifies relief. As
discussed above, that is functionally a § 2255 motion. Since he has filed more than one
such motion previously, this one is second or successive, and petitioner needs certification
from the court of appeals. See § 2255(h); Vitrano, 643 F.3d at 233. Accordingly, his motion for relief from judgment (Doc. 35) is DISMISSED for lack of jurisdiction.
This order of dismissal constitutes a final order in a proceeding under 28 U.S.C.
§ 2255. See 28 U.S.C. § 2253(c)(1)(B); United States v. Carraway, 478 F.3d 845, 849 (7th
Cir. 2007). Petitioner therefore needs a certificate of appealability if he wishes to appeal
this decision. § 2253(c)(1) (B); Fed. R. App. P. 22(b)(1). A certificate may be issued only
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if the petitioner has made a “substantial showing of the denial of a constitutional right.”
§ 2253(c)(1)(B), which means that “reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong,” Slack v. McDaniel, 529 U.S.
473, 484 (2000). In addition, when a § 2255 motion is denied on procedural grounds, the
petitioner must show both “that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason
would find it debatable whether the district court was correct in its procedural ruling.” Id.
(emphasis added). Here, regarding its procedural ruling, the Court does not believe jurists
of reason would find it debatable whether petitioner’s motion is second or successive. Accordingly, a certificate of appealability will not be issued. Petitioner may request that a circuit judge issue the certificate. Fed. R. App. P. 22(b)(1).
IT IS SO ORDERED.
DATED: August 14, 2013
/s/ WILLIAM D. STIEHL
DISTRICT JUDGE

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