Fuller v. USA

Filing 65

ORDER dismissing for lack of jurisdiction 64 MOTION FOR VOID JUDGMENT FOR A JURISDICTIONAL DEFECT. Signed by Judge David R. Herndon on 10/4/2017. (lmp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
MONTEZ L. FULLER,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

Civil Case No. 10-cv-267-DRH
Criminal Case No. 06-cv-30117-DRH-1

MEMORANDUM & ORDER
HERNDON, District Judge:
Pending before the Court is petitioner Montez L. Fuller’s motion for void
judgment for a jurisdictional defect and lack of subject matter jurisdiction
pursuant to Fed. R. Civ. P. 60(b)(4) and motion to reopen his § 2255 to cure a
defect in the proceedings (Doc. 64).

Fuller brings this motion as yet another

attempt to vacate his conviction and §2255 judgment. 1 Based on the following, the
Court DISMISSES the motion for lack of jurisdiction.
I.

Background

1

Fuller first filed a § 2255 petition on April 12, 2010, which the Court denied after briefing
completed (Doc. 28). Next, he filed a motion to reconsider, which was also denied (Doc. 31).
Thereafter, he appealed the Court’s order denying his § 2255 petition and the Seventh Circuit
affirmed this Court’s denial of his § 2255 petition (Doc. 45). Following the Seventh Circuit’s
ruling, Fuller filed a motion to reopen (Doc.47), which the Court, once again, denied (Doc.
50). He then appealed, and the Seventh Circuit, once again, denied his appeal (Doc. 62). After
the Seventh Circuit’s mandate came down (Doc. 62), Fuller then filed the motion at issue
(Doc. 64).
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On August 30, 2007, a jury convicted Fuller of aggravated bank robbery, in
violation of 18 U.S.C. § 2113(a) and (d)(2) (Counts 1 and 3) and of using a firearm
during a crime of violence, in violation of 18 U.S.C. §§ 924(c)(1) and (2) (Counts 2
and 4). (USA v. Fuller et al, 06-cr-30117, Docs. 249-252). Fuller was sentenced
to 564 total months incarceration on Counts 1-4. Fuller received 125 months on
Count 1 and 180 months on Count 3, to be served concurrently. He also received
84 months on Count 2, to run consecutively to Counts 1 and 3, and 300 months
on Count 4, to run consecutively to Count 2. Additionally, the Court sentenced
Fuller to five years of supervised release, ordered restitution in the amount of
$58,316.00, and ordered a special assessment in the amount of $400.00 (06-cr30117, Doc. 339). Fuller filed an appeal after sentencing, but the Seventh Circuit
Court of Appeals affirmed his conviction and sentence. See United States v.

Fuller, 306 F. App’x 297, 298-99, 301 (7th Cir. 2009), cert. denied, 129 S. Ct.
2037 (2009).
On April 12, 2010, Fuller filed a motion to vacate, set aside, or correct his
sentence pursuant to 28 U.S.C. § 2255 (Doc. 1). The government responded to
Fuller’s motion on January 25, 2011 (Doc. 10). Thereafter, the Court denied and
dismissed with prejudice Fuller’s § 2255 motion on the basis that his claims
lacked merit (Doc. 28). Fuller then filed a motion for reconsideration, which the
Court denied (Doc. 31). Following the reconsideration motion Fuller appealed the
Court’s Order to the Seventh Circuit. The Seventh Circuit, in their order denying
Fuller’s appeal, stated that they “reviewed the final order of the district court and

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the record on appeal. We find no substantial showing of the denial of a
constitutional right. See 28 U.S.C. § 2253(c)(2).” (Doc. 45-1). Fuller then sought to
reopen his § 2255 motion under the guise of bringing new claims specifically
attacking his 18 U.S.C. § 924(c) convictions (Doc. 47), which the Court denied
(Doc. 50) and Seventh Circuit affirmed (Doc. 62). Fuller then filed the motion at
issue seeking to void the judgment for a jurisdictional defect and lack of subject
matter jurisdiction pursuant to Fed. R. Civ. P. 60(b)(4) and also reopen his §
2255 to cure a defect in the proceedings pursuant to Gonzalez v. Crosby, 545
U.S. 524, 7 (2005) (Doc. 64).
II.

Law

In Gonzalez v. Crosby, 545 U.S. 524, 531-32 (2005), the United States
Supreme Court found that, in many circumstances, a motion brought under Rule
60(b) of the Federal Rules of Civil Procedure will properly be found to be a
successive habeas petition which should be treated accordingly. Specifically, a
motion will be categorized as a successive habeas petition if it “attacks the federal
court's previous resolution of a claim on the merits, since alleging that the court
erred in denying habeas relief on the merits is effectively indistinguishable from
alleging that the movant is, under the substantive provisions of the statutes,
entitled to habeas relief.” Gonzalez, 545 U.S. 532. However, a petitioner may
bring a Rule 60(b) motion, following the denial of a habeas petition, “when a Rule
60(b) motion attacks, not the substance of the federal court's resolution of a claim

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on the merits, but some defect in the integrity of the federal habeas proceedings.”

Id.
III.

Discussion

Section 2255 authorizes a federal prisoner to file a motion to vacate, set
aside, or correct a sentence “upon the ground that the sentence was imposed in
violation of the Constitution or laws of the United States, or that the court was
without jurisdiction to impose such sentence, or that the sentence was in excess
of the maximum authorized by law, or is otherwise subject to collateral attack [.]”

United States v. Carraway, 478 F.3d 845, 848-49 (7th Cir. 2007) citing 28 U.S.C.
§ 2255 ¶ 1. Fuller’s motion seeking to void judgment and to reopen his Title 28
U.S.C. § 2255 (Doc. 64) seeks relief from his sentence on the very types of
grounds identified above. Specifically, he alleges that judgment in both his
criminal and civil habeas case should be void due to lack of subject matter
jurisdiction. He also alleges an “actual defect” in his criminal case exists, thus
resulting in a denial of his right to due process.
Because Fuller already moved for relief pursuant to section 2255, this
attempt to challenge his sentence, even though entitled a motion for void
judgment for a jurisdictional defect and lack of subject matter jurisdiction
pursuant to Fed. R. Civ. P. 60(b)(4) and motion to reopen his § 2255 to cure a
defect in the proceedings, 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
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record to establish that Fuller has sought and obtained a certification from the
Seventh Circuit Court of Appeals. Therefore, the Court FINDS that Fuller’s
motion is a successive motion within the meaning of § 2255. On this basis, his
motion is DISMISSED for lack of jurisdiction. See United States v. Carraway,
478 F.3d 845, 849 (7th Cir. 2007).
To the extent Fuller seeks relief under Federal Rule of Civil Procedure
60(b)(4), his arguments fail. First, Rule 60(b) provides no basis for relief from a
judgment in a criminal case. See, e.g., United States v. O'Keefe, 169 F.3d 281, 289
(5th Cir.1999); United States v. Mosavi, 138 F.3d 1365, 1366 (11th Cir.1998).
Second, although under Gonzalez a § 2255 petitioner may use Rule 60(b) to
challenge some defects in the § 2255 proceedings, where, as here, the Rule 60(b)
motion attacks the underlying conviction or sentence, a district court must
dismiss it for lack of jurisdiction. See, e.g., Curry v. United States, 507 F.3d 603,
604 (7th Cir.2007), cert. denied, 128 S.Ct. 2925 (2008)(“ Often a prisoner will file
a motion under Rule 60(b) of the civil rules, that is, a motion to reconsider a
judgment, but the ground of the motion and the relief he seeks will mark the
motion as functionally a petition for habeas corpus or a motion under section
2255, because it challenges the legality of his detention and seeks his release. If
so, it will be treated as such. Gonzalez v. Crosby, 545 U.S. 524, 530-32, 125 S.Ct.
2641, 162 L.Ed.2d 480 (2005). “Prisoners cannot avoid the ... rules [governing
federal post-conviction remedies] by inventive captioning.... [T]he name makes no
difference. It is substance that controls.” Melton v. United States, 359 F.3d 855,

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857 (7th Cir.2004).”) On this basis, to the extent Fuller seeks relief under Rule
60(b) his motion is DISMISSED for lack of jurisdiction.
IV.
Under

Rule

11(a)

Certificate of Appealability
of

THE

RULES

GOVERNING

SECTION

2255

PROCEEDINGS, the “district court must issue or deny a certificate of
appealability when it enters a final order adverse to the applicant.” A habeas
petitioner does not have an absolute right to appeal a district court’s denial of his
habeas petition; he may appeal only those issues for which a certificate of
appealability has been granted. See Sandoval v. United States, 574 F.3d 847, 852
(7th Cir. 2009). For a court to issue a certificate of appealability, a petitioner
must make a “substantial showing of the denial of a constitutional right,”
meaning, “reasonable jurists could debate whether (or, for that matter, agree that)
the petition should have been resolved in a different manner or that the issues
presented were ‘adequate to deserve encouragement to proceed further.’” Miller-El

v. Cockrell, 537 U.S. 322, 336 (2003) (quoting Slack v. McDaniel, 529 U.S. 473,
484 (2000)); 28 U.S.C. § 2253(c)(2).
Reasonable jurists would not debate that this petition is a successive
collateral attack brought without the required pre-authorization. Therefore, the
Court shall not issue a certificate of appealability.
V.

Conclusion

For the reasons as discussed herein, petitioner Fuller’s motion for void
judgment for a jurisdictional defect and lack of subject matter jurisdiction
pursuant to Fed. R. Civ. P. 60(b)(4) and motion to reopen his § 2255 to cure a
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defect in the proceedings (Doc. 64) is hereby DISMISSED for lack of
jurisdiction. A certificate of appealability shall not issue.
IT IS SO ORDERED.

Digitally signed by
Judge David R.
Herndon
Date: 2017.10.04
14:59:32 -05'00'
United States District Judge

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