Case No. 97-40005-01-SAC, Case No. 00-3477-SAC
January 15, 2003.
MEMORANDUM AND ORDER
On October 24, 2002, this court denied petitioner's motion pursuant to 28 U.S.C. § 2255. This case comes before the court on petitioner's motion to alter or amend judgment pursuant to civil rule 59(e) (Dk. 275), petitioner's motion to amend his 59(e) motion (Dk. 278), and petitioner's motion for more definite statement (Dk. 280).
When a defendant files a successive § 2255 motion without first seeking the required authorization, the district court must transfer the motion to the appellate court in the interest of justice pursuant to 28 U.S.C. § 1631. Coleman v. United States, 106 F.3d 339, 341 (10th Cir. 1997). Petitioner's 59(e) motion and his motion to alter and amend that motion both repeat and reargue claims made in his initial § 2255 motion. As a consequence, these motions amount to second or successive motions which cannot be filed in the district court without prior authorization from the Tenth Circuit. See 28 U.S.C. § 2255 and 2244(b)(2)(B) (requiring court of appeals panel to certify a successive petition contains either (1) newly discovered evidence that, if proven, would establish by clear and convincing evidence no reasonable jury would have convicted defendant of the offense; or (2) a previously unavailable new rule of constitutional law made retroactive to cases on collateral review by the Supreme Court.)
Although petitioner's motion is styled as a Rule 59(e) motion, it was filed more than ten days after the court entered its memorandum and order denying his request for relief pursuant to § 2255, so would be treated as a motion for relief pursuant to Rule 60(b), were this court to consider its merits. See United States v. Clark, 984 F.2d 31, 34 (2d Cir. 1993); United States v. Johnson, 934 F. Supp. 383, 384-386 (D.Kan. 1996).
The "bar against successive § 2255 petitions" may not be avoided "by simply styling a petition under a different name." United States v. Torres, 282 F.3d 1241, 1246 (10th Cir. 2002) (finding "petition for a writ of error coram nobis and/or petition for a writ of audita querela," to be a second or successive § 2255 motion.) Otherwise, the statute's procedural restraints would be "severely eroded." Id. See United States v. Pratt, 48 Fed. Appx. 324, 325, 2002 WL 31341554, *1 (10th Cir. 2002) (finding district court's transfer of Pratt's motion, styled as a rule 60(b) motion, proper because Pratt had previously filed a § 2255 motion); Lopez v. Douglas, 141 F.3d 974, 975 (10th Cir. 1998) (finding a 60(b) motion to vacate the judgment denying an initial § 2254 motion to be an uncertified second or successive § 2254 motion).
Because petitioner has not obtained the required authorization, this court lacks jurisdiction to decide the instant motions. See United States v. Waldrup, 42 Fed. Appx. 367, 369, 2002 WL 1481265, *2 (10th Cir. July 11, 2002) (vacating district court's order denying reconsideration of § 2255 motion where petitioner had not obtained the required authorization, as the district court lacked jurisdiction to decide the reconsideration request.) This extends to petitioner's motion for a more definite statement as well, because that motion is directed to the government's response to petitioner's 59(e) motions. Alternatively, in the event the court retains jurisdiction to determine the merits of that motion, it is denied, as Rule 12, invoked by petitioner, is inapplicable to the government's brief at which the motion is directed.
IT IS THEREFORE ORDERED that defendant's successive motions for relief pursuant to 28 U.S.C. § 2255 (Dks 275 and 278) and the related motion for more definite statement (Dk. 280) are transferred to the Tenth Circuit Court of Appeals pursuant to 28 U.S.C. § 1631;
IT IS FURTHER ORDERED that the Clerk of the Court shall forward a copy of the defendant's motions, along with a copy of this Memorandum and Order, to the Clerk of the Tenth Circuit Court of Appeals for processing under 28 U.S.C. § 2244(b)(3). The Clerk shall also send a copy of this Memorandum and Order to the defendant and the local office of the United States Attorney.