Vance v. USA

Filing 24

MEMORANDUM AND ORDER, dismissing for lack of jurisdiction 22 MOTION filed by Terrence R. Vance. Signed by Judge J. Phil Gilbert on 8/17/2015. (jdh)

UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
TERRENCE R. VANCE,
Petitioner,
v.

Civil No. 14-cv-790-JPG

UNITED STATES OF AMERICA,

Criminal No 09-cr-40070-JPG

Respondent.
MEMORANUM AND ORDER
This matter comes before the Court on petitioner Terrence R. Vance’s motion for relief
from judgment pursuant to Federal Rule of Civil Procedure 60(b) (Doc. 22). Vance asks the
Court to vacate its order and judgment denying his motion to vacate, set aside or correct his
sentence pursuant to 28 U.S.C. § 2255 (Docs. 16 & 17). In that judgment, the Court rejected
Vance’s argument that one of his convictions could not serve as a basis for career offender status
under the United States Sentencing Guidelines because it was not a crime of violence. Since then,
the Supreme Court has ruled that a provision in the Armed Career Criminal Act, 18 U.S.C.
§ 924(e), with language similar to the relevant guideline defining a “crime of violence” was
unconstitutionally vague and therefore unenforceable. Johnson v. United States, 135 S. Ct. 2551,
2557 (2015). Vance now asks the Court to vacate the judgment and reconsider his § 2255 motion
in light of Johnson.
Vance’s pending motion constitutes an unauthorized successive petition because it is an
attack on the Court’s prior resolution of a ground for relief on the merits. See Gonzalez v. Crosby,
545 U.S. 524, 531 (2005) (habeas context). A post-judgment motion such as a Rule 60(b) motion
that advances a new claim, that is, a new ground for relief from a conviction, or an attack on the

Court=s prior resolution of a ground for relief on the merits is a successive petition. See Gonzalez,
545 U.S. at 531; see United States v. Scott, 414 F.3d 815, 816 (7th Cir. 2005) (considering
post-judgment Rule 6(e) motion). In order for this Court to consider a successive petition, the
Seventh Circuit Court of Appeals must certify the successive petition pursuant to 28 U.S.C.
§ 2255(h). Curry v. United States, 507 F.3d 603, 604 (7th Cir. 2007); Nunez v. United States, 96
F.3d 990, 991 (7th Cir. 1996). The Court of Appeals has not made such a certification.
Therefore, the Court does not have jurisdiction to consider Vance’s motion (Doc. 22) and
DISMISSES it for lack of jurisdiction.
IT IS SO ORDERED.
DATED: August 17, 2015
s/ J. Phil Gilbert
J. PHIL GILBERT
DISTRICT JUDGE

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