Cephus v. USA
Filing
46
OPINION AND ORDER The Petition Under Rule 60(b)(4) of Fed.R.Civ.P. to Reverse and Vacate Conviction Pursuant to Rule 52(b) of Fed.R.Crim.P. Because Two-Biased Jurors in Petit Jury Were Not Striked for Cause and Perjury Violations While Being Cross-E xamined for Selection of Empaneled Jury, filed by Cephus on February 9, 2017, is DISMISSED FOR LACK OF JURISDICTION. The Court DECLINES to issue a certificate of appealability. Signed by Judge Rudy Lozano on 7/18/17. (Copy mailed to pro se party)(kjp)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
UNITED STATES OF AMERICA,
)
)
)
)
)
)
)
)
)
Plaintiff,
vs.
JUSTIN CEPHUS,
Defendant.
NO. 2:09-CR-43
2:13-CV-396
OPINION AND ORDER
This matter is before the Court on the “Petition Under Rule
60(b)(4) of Fed.R.Civ.P. to Reverse and Vacate Conviction Pursuant
to Rule 52(b) of Fed.R.Crim.P. Because Two-Biased Jurors in Petit
Jury Were Not Striked for Cause and Perjury Violation’s While Being
Cross-Examined for Selection of Empaneled Jury,” filed by the
defendant, Justin Cephus (“Cephus”), on February 9, 2017.
#666.)
FOR
(DE
For the reasons set forth below, the petition is DISMISSED
LACK
OF
JURISDICTION.
The
Court
DECLINES
to
issue
a
certificate of appealability.
BACKGROUND
On February 4, 2015, this Court entered an opinion and order
denying Cephus’ original 18 U.S.C. section 2255 motion, denying
several related motions, denying his request for an evidentiary
hearing, and declining to issue a certificate of appealability.
(DE #608.)
Cephus later filed a “Motion for Appealability and
Reconsideration,” which this Court denied.
(DE #615 & DE #621.)
The
the
United
States
subsequently
Court
reviewed
of
this
Appeals
Court’s
for
final
Seventh
order
and
Circuit
found
substantial showing of the denial of a constitutional right.
#643.)
no
(DE
On March 10, 2017, Cephus filed the instant petition which
focuses on alleged juror bias, an issue he addressed in the
voluminous briefing of his original section 2255 and related
motions.
ANALYSIS
When a motion is brought requesting reconsideration of a final
judgment, a court must first determine whether it has jurisdiction
to entertain the motion. Under certain circumstances, a motion for
reconsideration motion must be treated as a successive habeas
petition.
See Dunlap v. Litscher, 301 F.3d 873, 875-76 (7th Cir.
2002); Harris v. Cotton, 296 F.3d 578, 579-80 (7th Cir. 2002)
(citations omitted) (“Prisoners are not allowed to avoid the
restrictions that Congress has placed on collateral attacks on
their convictions . . . by styling their collateral attacks as
motions for reconsideration under Rule 60(b).”)
If a motion for
reconsideration is in effect a second or successive petition, a
district court lacks jurisdiction to consider it unless the court
2
of appeals has granted the petitioner permission to file such a
petition.
See 28 U.S.C. § 2255(h); 28 U.S.C. § 2244; Dunlap, 301
F.3d at 875 (noting that 28 U.S.C. section 2255, paragraph 8, is
“clear and bar[s] a district court from using Rule 60(b) to give a
prisoner broader relief from a judgment rendered by the court in
the prisoner’s [2255] proceeding.”).
Here,
although
Cephus
titles
his
motion
as
one
brought
pursuant to Rule 60(b), it is in effect a successive collateral
attack for which Cephus has failed to obtain an appropriate
certification from the Court of Appeals.
See 28 U.S.C. § 2255;
Nunez v. United States, 95 F.3d 990, 991 (7th Cir. 1996) (holding
only the Seventh Circuit may authorize the commencement of a second
or successive petition).
In fact, on March 16, 2017, the United
States Court of Appeals for the Seventh Circuit specifically denied
an application filed by Cephus seeking permission to file a
successive motion under section 2255 based on the same arguments he
brings in the instant motion.
(DE #668.)
The Court of Appeals
noted that:
a congratulatory note from one juror to a
prosecutor and another note from a different
juror to the prosecutor professing a desire to
stay in touch do not demonstrate bias on the
part of the jurors.
And, of course, the
evidence
in
no
way
implicates
Cephus’
innocence, as required by §2255(h)(1) for
authorization.
(Id.)
Consequently, this Court must dismiss the instant petition.
3
CERTIFICATE OF APPEALABILITY
A
certificate
of
appealability
may
only
issue
if
the
petitioner “has made a substantial showing of the denial of a
constitutional right.”
28 U.S.C. § 2253(c)(2).
Because this
motion is an unauthorized successive collateral attack, Cephus
cannot satisfy the criteria for a certificate of appealability.
See Sveum v. Smith, 403 F.3d 447 (7th Cir. 2005).
CONCLUSION
For the reasons set forth above, the “Petition Under Rule
60(b)(4) of Fed.R.Civ.P. to Reverse and Vacate Conviction Pursuant
to Rule 52(b) of Fed.R.Crim.P. Because Two-Biased Jurors in Petit
Jury Were Not Striked for Cause and Perjury Violation’s While Being
Cross-Examined for Selection of Empaneled Jury,” filed by Cephus on
February 9, 2017 (DE #666), is DISMISSED FOR LACK OF JURISDICTION.
The Court DECLINES to issue a certificate of appealability.
DATED: July 18, 2017
/s/ RUDY LOZANO, Judge
United States District Court
4
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?