Garrett v. United States of America

Filing 4

ORDER DISMISSING CASE. Signed by Judge J. Phil Gilbert on 4/7/06. (hbs)

Garrett v. United States of America

Doc. 4

Case 3:06-cv-00266-JPG

Document 4

Filed 04/07/2006

Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS BRYAN S. GARRETT, Inmate #01882-025, ) ) Petitioner, ) ) vs. ) ) THE UNITED STATES OF AMERICA, ) ) Respondent. )

CIVIL NO. 06-266-JPG

MEMORANDUM AND ORDER GILBERT, District Judge: This action comes before the Court on Petitioner's motion for a petition for writ of error coram nobis, pursuant to 28 U.S.C. § 1651 (Doc. 1). In April 2001, a jury found Petitioner guilty of conspiracy to manufacture methamphetamine (Count 1), of being a felon in possession of a firearm (Count 2), of possession of materials used to manufacture methamphetamine (Count 3), and of maintaining a place to manufacture methamphetamine (Count 4). At sentencing in July 2001, the Court found Petitioner to be a career offender under U.S.S.G. § 4B1.1, because of a prior drug conviction. He was sentenced to 432 months on Count 1, 120 months on Count 2, and 240 months on each of Counts 3 and 4, all to run concurrently. The sentence was affirmed on appeal. See United States v. Anderson, 288 F.3d 335 (7th Cir.), cert. denied, 536 U.S. 971 (2002). In June 2003, Petitioner filed a motion to vacate, set aside, or correct the sentence pursuant to 28 U.S.C. § 2255, arguing that he received ineffective assistance of counsel. The Court denied the motion in July 2004 and the Court of Appeals denied a certificate of appealability. In the instant action, Petitioner challenges the Court's career-offender determination under

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Case 3:06-cv-00266-JPG

Document 4

Filed 04/07/2006

Page 2 of 2

U.S.S.G. § 4B1.1. Writs of error coram nobis "are limited to former prisoners who seek to escape the collateral civil consequences of wrongful conviction." Owens v. Boyd, 235 F.3d 356, 360 (7th Cir. 2000). A petitioner still in federal custody must rely upon 28 U.S.C. § 2255 to challenge his conviction or sentence and cannot use the writ of error coram nobis to escape the procedural restrictions imposed by section 2255. Id. Because Petitioner has already moved for relief pursuant to section 2255, this attempt to challenge his sentence, even though entitled a petition for a writ of error coram nobis, is an impermissible second or successive 2255 petition. A petitioner may seek further review of his conviction and sentence only with certification from the Seventh Circuit Court of Appeals. See 28 U.S.C. §2255, ¶ 8; Nunez v. United States, 96 F.3d 990, 991 (7th Cir. 1996). There is nothing in the record to establish that Petitioner has sought and obtained a certification from the Seventh Circuit Court of Appeals. Therefore, the Court does not have jurisdiction to consider the petition and DISMISSES it for lack of jurisdiction. IT IS SO ORDERED. Dated: April 7, 2006 s/ J. Phil Gilbert U. S. District Judge

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