Opinion
Case No. 10-20974-CIV-COHN/WHITE
08-11-2011
MANUEL GUNN, Movant, v. UNITED STATES OF AMERICA, Respondent.
Copies provided to: Counsel of record via CM/ECF Manuel Gunn, pro se Reg. No. 67172-004 Federal Medical Center Inmate Mail/Parcels P.O. Box 14500 Lexington, KY 40512
ORDER DENYING MOTION TO VACATE AND REVIEW
THIS CAUSE is before the Court on Manuel Gunn's "Motion to Vacate and Review Pursuant to Rule 60(b) and § 1651 and the Supreme Court Ruling in Bond v. United States, 564 U.S. ___ (2011)" [DE 25]. The Court has considered the Motion and the record in this case, and is otherwise advised in the premises.
On November 30, 2009, Mr. Gunn filed his original "Petition to Vacate Sentence and to Vacate Judgment of Conviction for Ineffective Assistance of Counsel and Lack of Subject Matter Jurisdiction Pursuant to Article I § 9 Cl. 2 of the U.S. Constitution and Rule 34 and 12(b)(3)(B)" [DE 1] in Case No. 01-00377-CR. See Case No. 01-00377-CR, DE 202. On March 26, 2010, the Court directed the Clerk to docket the petition as a § 2255 motion to vacate, open a new civil case for the motion to vacate, and place the related filings in the new civil case. See Case No. 01-00377-CR, DE 206. The new civil case was opened on March 29, 2010.
On April 12, 2010, United States Magistrate Judge Patrick A. White issued a Report and Recommendation [DE 10], recommending that Mr. Gunn's § 2255 motion to vacate be dismissed as a successive motion for which Mr. Gunn had failed to obtain authorization pursuant to § 2244. On April 23, 2010, Mr. Gunn filed Objections [DE 11] to the Report and Recommendation. On April 26, 2010, after conducting a de novo review of the record, the Court entered its Order Adopting Report of Magistrate Judge [DE 12], denying with prejudice Mr. Gunn's § 2255 motion to vacate. The Eleventh Circuit then declined to issue a certificate of appealability [DE 22] on October 26, 2010.
In the instant Motion, Mr. Gunn expresses disagreement with the Court's previous decisions and states, "Petitioner has now resubmitted his challen[ge]." Mot. at 3. Once again, Mr. Gunn denies that his motion to vacate is a § 2255 motion. The Court already evaluated this argument in the Order Adopting Report of Magistrate Judge. Specifically, Mr. Gunn had objected to the Report and Recommendation on the basis that his motion was not a § 2255 motion subject to the requirements of § 2244 because his arguments include challenges "to the Constitutionality of Title 18, Title 21" and whether the Court possessed jurisdiction over the original matter. The Court rejected Mr. Gunn's objection as an attempt to circumvent § 2244's requirements by relying on an argument regarding jurisdiction or re-branding a successive motion to vacate. See Order Adopting Report of Magistrate Judge at 2-4.
None of the arguments in the instant Motion change the Court's analysis or conclusion. The recent case that Mr. Gunn cites, Bond v. United States, 131 S. Ct. 2355 (U.S. 2011) (holding only that a petitioner had standing to challenge a statute's validity) also does not change the analysis or conclusion. The Court sees no reason to reevaluate that which has already been decided. Accordingly, it is hereby
ORDERED AND ADJUDGED that Manuel Gunn's "Motion to Vacate and Review Pursuant to Rule 60(b) and § 1651 and the Supreme Court Ruling in Bond v. United States, 564 U.S. ___ (2011)" [DE 25] is DENIED.
DONE AND ORDERED in Chambers at Fort Lauderdale, Broward County, Florida, on this 11th day of August, 2011.
Copies provided to:
Counsel of record via CM/ECF
Manuel Gunn, pro se
Reg. No. 67172-004
Federal Medical Center
Inmate Mail/Parcels
P.O. Box 14500
Lexington, KY 40512
JAMES I. COHN
United States District Judge