Opinion
Criminal No. 09-364(1) (JNE/JJK) Civil No. 12-2267 (JNE)
09-10-2014
United States of America, Plaintiff, v. Zack Zafer Dyab, Defendant.
ORDER
In February 2013, the Court denied Zack Dyab's motion under 28 U.S.C. § 2255 (2012) and issued a certificate of appealability. Dyab appealed, and the United States Court of Appeals for the Eighth Circuit affirmed. Dyab v. United States, 546 F. App'x 601 (8th Cir. 2013) (per curiam), cert. denied, 134 S. Ct. 1918 (2014). In August 2014, Dyab filed a motion under Rule 60(b) of the Federal Rules of Civil Procedure. The government opposed the motion, arguing that it is a second or successive § 2255 motion filed without authorization and that the motion should be denied on the merits.
Although he relied on Rule 60(b), Dyab has actually attempted to bring a second motion under § 2255 without authorization from the Eighth Circuit. See United States v. Lambros, 404 F.3d 1034, 1036 (8th Cir. 2005) (per curiam); United States v. Matlock, 107 F. App'x 697, 698 (8th Cir. 2004) (per curiam). Accordingly, the Court denies the motion. See Lambros, 404 F.3d at 1036-37. The Court declines to issue a certificate of appealability. See id.
Based on the files, records, and proceedings herein, and for the reasons stated above, IT IS ORDERED THAT:
1. Dyab's second § 2255 motion [Docket No. 209] is DENIED.
2. A certificate of appealability is DENIED.
LET JUDGMENT BE ENTERED ACCORDINGLY. Dated: September 10, 2014
s/Joan N. Ericksen
JOAN N. ERICKSEN
United States District Judge