Frank v. USA

Filing 2

MEMORANDUM DECISION AND ORDER DENYING MOTION FOR RELIEF FROM JUDGMENT AND/OR MOTION TO VACATE AND/OR CORRECT SENTENCE-See Order for details. Signed by Judge Clark Waddoups on 8/11/17. (jmr)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
MEMORANDUM DECISION & ORDER
DENYING MOTION FOR RELIEF
FROM JUDGMENT AND/OR MOTION
TO VACATE AND/OR CORRECT
SENTENCE

UNITED STATES OF AMERICA,
Plaintiff,
v.
DAVID GODWIN FRANK,

Case No. 2:17-cv-00598-CW

Defendant.

Judge Clark Waddoups

On June 13, 2017, Defendant David Godwin Frank filed a pro se Motion for Relief from
Judgment, §17 Motion to Vacate, Set Aside, or Correct Sentence. (Dkt. No. 1.)
On May 18, 2017, Mr. Frank, also pro se, filed almost the exact motion in case No.
2:08cr822, entitled Motion for Relief from Judgment and/or Order. In that motion, as in this one,
Mr. Frank stated that he had served his time and is off probation. (Dkt. No. 1, at 2; Dkt. No. 112,
at 2.) Mr. Frank again requests that the court void the judgment in this case, arguing that the
2008 indictment was filed after the general federal criminal statute of limitations found in 18
U.S.C. § 3282, and arguing ineffective assistance of counsel. (Id.)
In this motion, Mr. Frank added a new paragraph on the second page which added the
definition of the term “habeas corpus;” however, he provides no new facts or legal argument to
the court. Otherwise, the motion is exactly the same as the motion he filed in May in case No.
2:08cr822. Thus, based upon a review of the record, this Motion, and relevant case law, the
court once again DENIES Mr. Frank’s Motion for the same reasons as stated in the previous
Order. (Dkt. No. 1.) The court again construes his request to void the judgment as a 28 U.S.C. §
2255 motion and again concludes it lacks jurisdiction to consider the arguments therein.

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Moreover, this court, lacks jurisdiction to hear Mr. Frank’s other claims of errors because
Mr. Frank is no longer a federal prisoner or in federal custody. See United States v. Bustillos, 31
F.3d 931, 933 (10th Cir. 1994) (holding that a court only has jurisdiction to hear a collateral
challenge to a federal sentence under § 2255 where “the defendant is in custody at the time of
initiating the petition”). Also, Mr. Frank’s Motion is untimely under § 2255(f)’s one-year
limitation on such motions because it is filed well after his conviction in 2010.
For these reasons, the court again DENIES Mr. Frank’s Motion. (Dkt. No. 1.)
DATED this 11th day of August, 2017.

BY THE COURT

Clark Waddoups
United States District Judge

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