Opinion
No. 00-827-AM
June 25, 2001
ORDER
For the reasons set forth in the Memorandum Opinion this day filed, it is
ORDERED that the petitioner's motion for a new trial, which the court treats as a petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254, is denied without prejudice.
Should the petition wish to appeal, written notice of appeal must be filed with the clerk of court within thirty (30) days of the date of this order.
MEMORANDUM OPINION
In this action, the petitioner seeks relief from a judgment of conviction in the Circuit Court of Fairfax County, Virginia and from a judgment of this court entered on July 27, 2000, which denied, on the ground of untimeliness, his petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. The bases of the motion are (1) an allegation that his state conviction was obtained by fraud and (2) ineffectiveness of counsel at the trial.
While styled as a Motion for a New Trial under F.R.Civ.P. §§ 59(a) and 60(b), the motion is no more than a petition for a writ of habeas corpus. So treated, it is successive, and this court may not consider it unless the petitioner has first obtained an order from the United States Court of Appeals authorizing the district court to consider the petition. 28 U.S.C. § 2244 (b)(3)(A). The present motion will be denied without prejudice to petitioner's right to apply to the Court of Appeals for an order authorizing this court to consider the motion.