Opinion
Criminal No. 2000-14-03J, Civil No. 2005-229J.
October 25, 2005
MEMORANDUM ORDER
This matter comes before the Court on the Petitioner's Motion for Reconsideration (Document No. 5). This motion is denied.
The Petitioner argues for reconsideration of his sentence based upon Federal Rules of Civil Procedure 59(e) and 60 (b) as well as arguing that his "Petition in Nunc Pro Tunc" (Document No. 3) should be treated as a nunc pro tunc motion and not a motion to vacate sentence.
First, the Petitioner's request for relief under Rule 59(e) is misplaced. The Petitioner is attempting to use Rule 59(e), a rule of civil procedure, to gain reconsideration of his criminal judgment, and that is not within the purpose of that rule. On this issue, the motion is denied.
Second, the Petitioner styled his July 5, 2005 filing as a Petition in Nunc Pro Tunc and seeks to have this Court vacate his current sentence and impose that sentence which a previous judge allegedly intended to impose but could not because of the previous mandatory nature of the sentencing guidelines. The Petitioner's request is clearly a motion to vacate sentence. Petitioner was permitted to amend or withdraw that petition and subsequently, after deciding not to withdraw the petition, but amend it to include further legal argument as found in the "Petition Nunc Pro Tunc", the Petitioner was given notice in the Memorandum Order of July 19, 2005 that the Court analyzed the "Petition in Nunc Pro Tunc" as a motion to vacate as it had originally found in its June 9, 2005 Order granting the Petitioner time to amend his petition. Therefore, the original Motion to Vacate Sentence filed April 25, 2005 and the additional argument found in the "Petition in Nunc Pro Tunc" requested the Court to vacate the Petitioner's sentence. The self-styling of the Petitioner's amendment to be in the manner of a nunc pro tunc petition is misplaced as it seeks substantive changes to his sentence, a result which nunc pro tunc motions cannot achieve.
For the benefit of the Petitioner's understanding, the Court reproduces the following quote:
§ 166. Judicial errors and omissions
The general rule is that an amendment of the record of a judgment, and a nunc pro tunc entry of it, may not be made to correct a judicial error involving the merits, or to enlarge the judgment as originally rendered, or to supply a judicial omission or an affirmative action which should have been but was not, taken by the court, or to show what the court might or should have decided, or intended to decide, as distinguished from what it actually did decide, even if such failure is apparently merely an oversight.
The power of the court in this regard is to make the journal entry speak the truth by correcting clerical errors and omissions, and it does not extend beyond such function. Although grounds may exist for opening, modifying, or vacating the judgment itself, in the absence of such grounds, the court may not, under the guise of an amendment of its records, revise or change the judgment in substance and have such amended judgment entered nunc pro tunc. Any attempt by a court under the guise of correcting clerical error to revise its deliberately exercised judicial discretion is not permitted. A nunc pro tunc order is not appropriate to rescue subjective judicial intentions when a judge failed in any way to act on those intentions in entering judgment.
A nunc pro tunc judgment may only be rendered to correct a prior journal entry by changing the record to reflect judicial action actually taken but erroneously omitted. The error must arise in the entry of judgment and not in its rendition. A claim that there are errors of law in judgment cannot be raised by application for an order nunc pro tunc, but only by an appeal. Afterthought decisions may not be handed down and recorded as "nunc pro tunc" orders. The nunc pro tunc order must conform to and be no broader in its terms than the judgment originally rendered. Nunc pro tunc orders cannot be used to substantially alter the nature and effect of the judgment.
There is authority to the effect that a void judgment cannot be corrected by a nunc pro tunc order.
46 AM. JUR. 2d Judgments § 166 (2005). Nunc pro tunc motions are appropriate for correction of clerical matters, not requests for vacation of sentence and re-sentencing based upon what the sentencing judge may have wished to do, but could not legally do, at the time of sentencing. On this issue, the Petitioner's motion is denied.
Third and finally, the petitioner requests reconsideration based upon Federal Rule of Civil Procedure 60(b). Specifically, the Petitioner contends:
Petitioner avers that this court has jurisdiction to "reopen the judgment" and permit Judge Smith to impose the sentence his Honor intended, but was prohibited due to the Unconstitutional provision of 18 U.S.C. § 3553(b).
Thus, petitioner's contentions do not wish to address the retro-activity of Booker and Fanfan, but to address a defect in his federal sentencing proceeding to correct "manifest errors of law upon which judgment was based."
Once again the Petitioner is resorting to a rule of civil procedure as a basis upon which to "reopen the judgment" in a criminal matter. The Petitioner's argument is misplaced as Rule 60(b) is not intended for criminal matters. On this issue, the Petitioner's motion is also denied.
The proper means of removing a criminal judgment after sentencing has been imposed based upon an unconstitutional statute is through a motion to vacate pursuant to 28 U.S.C. § 2255 and that is why the Court has treated the Petitioner's filings as such. Once again, the Court sees no "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253. Therefore, no certificate of appealability is issued. Furthermore, the Petitioner is not permitted to file further motions to reconsider as the Court will not continue to review this matter when it is clear that the Petitioner has no basis for any of the arguments in his Petition; the Clerk of Court is ordered not to docket any further pleadings in this matter beyond this Memorandum Order.
AND NOW, this 25th day of October, 2005, this matter coming before the Court on the Petitioner's Motion for Reconsideration (Document No. 5), IT IS HEREBY ORDERED THAT the motion is DENIED and a certificate of appealability in this matter is also DENIED; IT IS FURTHER ORDERED THAT the Petitioner is not permitted to file any further pleadings or motions in this matter as the Petitioner's arguments are without merit and this matter is closed, and the Clerk of Court is directed not to docket any further filings in this matter beyond this Memorandum Order.