Opinion
No. CR-90-03-PHX RCB.
August 24, 2006
ORDER
On February 24, 2006, Petitioner Denard Darnell Neal filed an ex parte motion to vacate void judgment. Mot. (doc. 158). Thereafter, on May 3, 2006, Neal filed another ex parte motion requesting notification of the status of his prior motion to vacate judgment. Mot. Status (doc. 166). After reviewing Neal's motions, the Court, on May 17, 2006, issued an order finding no reason for the motions to be dealt with on an ex parte basis. Order (doc. 167). Accordingly, the Court ordered the Clerk to transmit copies of the motions to the United States Attorney for appropriate response. Id. at 2. The Government filed its responses to Neal's motions on June 6, 2006. (docs. 168 169).
The Court notes that the original order regarding these matters was mistakenly filed with the incorrect date of "17th day of May 2005" instead of "2006." Order (doc. 167). On June 6, 2006, Neal filed a motion entitled "Motion for Re-Issue of Court Order Bearing the Correct Date on Court Order," requesting that the Court amend the date of its order and re-file it with the correct date. Mot. Amend. Order (doc. 171). The Court shall grant Neal's motion to amend the order.
Generally, Neal's motion to vacate the judgment is an attack on his 1990 criminal conviction. It is not clear to the Court upon what basis Neal believes his conviction can and should be vacated. Neal spends the majority of his motion arguing that the Court lacks personal and subject matter jurisdiction over him because he was not provided sufficient service of process, the United States is a corporate franchise, he was not informed of the "nature or cause" of the action against him, and because Denard Darnell Neal is a "fictitious-corporate entity," thus requiring that all dealings with such entity comply with the Uniform Commercial Code. Mot. (doc. 158).
The Court shall construe Neal's filing as a Petition for Writ of Habeas Corpus, under 28 U.S.C. § 2255. As such, this petition was not properly filed. Neal has filed two prior section 2255 petitions and one Rule 60(b) motion which was construed as a section 2255 petition. (docs. 95, 126, 137 and 147). Section 2255 provides that a second or successive motion made pursuant to that section must be certified by a panel of the appropriate court of appeals to contain newly discovered evidence or a new rule of constitutional law. See 28 U.S.C. § 2255. Until the Ninth Circuit Court of Appeals certifies that a second or successive petition may be filed, this Court is without jurisdiction to consider Neal's claims. See United States v. Allen, 157 F.3d 661, 664 (9th Cir. 1998).
Here, Neal has made no showing that a request for certification was made or that authorization was granted by the Ninth Circuit Court of Appeals. Consequently, Neal's Ex Parte Motion to Vacate Void Judgment shall be denied. Since this Court has now ruled on Neal's Ex Parte Motion to Vacate Void Judgment (doc. 158), his Ex Parte Motion Requesting Status (doc. 166) is now moot.
Therefore,
IT IS ORDERED that Neal's Motion for Re-Issue of Court Order Bearing the Correct Date on Court Order (doc. 171) is GRANTED. The date of the Court's Order regarding Neal's Ex Parte Motion to Vacate Void Judgment, Motion to Exclude United States Attorney from Presenting Argument, Ex Parte Motion Requesting Status, and Motion to Transport (doc. 167) is amended to read "17th day of May, 2006."
IT IS FURTHER ORDERED that Neal's Ex Parte Motion to Vacate Void Judgment (doc. 158) is DENIED.
IT IS FINALLY ORDERED that Neal's Ex Parte Motion Requesting Status (doc. 166) is DENIED as moot.