Opinion
No. 07-CR-30015-DRH.
December 17, 2010
ORDER
Now before the Court is Gooden's petition to file an out of time application pursuant to 28 U.S.C. § 2255 motion to vacate, set aside or correct illegal sentence (Doc. 132). Based on the following, the Court dismisses the motion for lack of jurisdiction.
Once a district court enters final judgment it lacks jurisdiction to continue to hear related issues, except to the extent authorized by statute or rule. See Carlisle v. United States , 517 U.S. 416 (1996). The following post-judgment motions are allowed if timely filed. Under Federal Rule of Criminal Procedure 35, revision is proper only within 7 days, unless the prosecutor files an appropriate motion or the court of appeals remands. Further, a Rule 33 motion for new trial based in evidence must be brought within 3 years after the verdict and a Rule 33 motion for new trial based on other grounds must be brought within 7 days after the verdict. Lastly, a collateral attack under 28 U.S.C. § 2255 which has a 1 year statute of limitations.
Here, Gooden is seeking to for leave to file his 28 U.S.C. § 2255 petition out of time. In his request, he states reasons why his petition is untimely. A 28 U.S.C. § 2255 is a civil matter not a criminal matter. Thus, the motion should not have been filed in this criminal case as the Court lacks jurisdiction to entertain the motion in the criminal case. Gooden should refile his motion as a civil case, if he wishes to pursue it. Gooden should consult 28 U.S.C. § 2255, the Federal Rules of Civil Procedure and the Court's Local Rule on how to properly file the petition and request for leave to file application out of time. Further, the Court DIRECTS the Clerk of the Court to send Gooden the forms for such a petition. By the Court directing Gooden to file this case as a civil case, if he wishes to pursue it, does not mean that the Court finds the case to be valid. The has indicated the problem with timeliness, which Gooden seems to suggest he believes he has a valid answer for.
IT IS SO ORDERED.
Signed this 17th day of December, 2010.