Opinion
02 Civ. 3860 (DLC), 97 CR 950.
February 3, 2006
MEMORANDUM OPINION AND ORDER
On November 19, 2005, Bruno Rumignani ("Rumignani") brought a motion for relief from judgment pursuant to Rule 60 (b), Fed.R.Civ.P., asserting that this Court erred in denying his petition for a writ of habeas corpus in 2002 when it did not correctly apply Apprendi v. New Jersey, 530 U.S. 466 (2000). Rumignani seeks a reduction in his sentence.
When faced with a Rule 60(b) motion that attacks a movant's underlying conviction, a district court may deny the motion with prejudice as beyond the scope of Rule 60(b). Alternatively, the court may give the movant an opportunity to withdraw the motion before treating it as a second habeas petition and transferring it to the Court of Appeals as a successive habeas petition. See Harris v. United States, 367 F.3d 74, 82 (2d Cir. 2004). Accordingly, it is hereby
ORDERED that Rumignani's Rule 60(b) motion is denied with prejudice.
SO ORDERED: