Opinion
No. 03 C 295 (90 CR 57-1)
January 23, 2003
MEMORANDUM OPINION AND ORDER
Fully a dozen years after his trial, conviction and sentencing for a series of armed bank robberies (coupled with associated gun charges), Eddie Lee Fryer ("Fryer") has filed with the United States District Court for the Western District of Virginia (where he is now in custody) a document that he labels as having been brought under 28 U.S.C. § 2241, through which he again seeks to launch a collateral attack on the long-ago-terminated criminal proceedings. That most recent filing has in turn been transferred to this District Court on the accurate premise that it is really a Section 2255 motion, and it has automatically been assigned to this Courts calendar because this Court had presided over Fryer's trial and had imposed the lengthy sentence that he is now serving ( see Rule 4(a) of the Rules Governing Section 2255 Proceedings for the United States District Courts).
All further references to Title 28's provisions will simply take the form "Section —."
For a number of years after the initial proceedings and after the affirmance on direct appeal of his conviction and sentence by our Court of Appeals ( 974 F.2d 813 (7th Cir. 1992)), Fryer was an active post-conviction litigant, necessitating this Court's issuance of a whole series of published and unpublished opinions dealing with the several challenges that he sought to advance. But what is most relevant — indeed, critical — for present purposes is that this Court's detailed opinion and supplement reported at 21 F. Supp.2d 834 (N.D.Ill. 1998) dealt with and rejected Fryer's original Section 2255 motion, by which he had disputed both his conviction and the ensuing sentence.
Although this makes no difference in either the analysis or the result reached in this opinion, both of which are compelled by the statutory mandate discussed in the ensuing text, it may be noted parenthetically that this Court took pains to appoint an outstanding lawyer, a partner in one of Chicago's leading law firms, to represent Fryer pro bono publico in his original Section 2255 proceeding.
That being the case, Fryer's present effort unquestionably constitutes a "second or successive motion" to which the last paragraph of Section 2255 applies:
A second or successive motion must be certified as provided in section 2244 by a panel of the appropriate court of appeals to contain —
(1) newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense; or
(2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.
As mandated by Section 2244(b), which is incorporated by reference via the just-quoted portion of Section 2255, this Court cannot entertain Fryer's current application unless, upon his application to our Court of Appeals, that Court were to authorize this Court to do so. Accordingly Fryer's current filing and this action are dismissed, albeit without prejudice to the potential reassertion of his motion if the Court of Appeals so directs.
In light of the statutorily required dismissal that has been reflected here, this Court makes no substantive comment as to the timeliness or any other aspect of Fryer's filing.