Opinion
Cause No. CR 94-82-BLG-SPW Cause No. CV 18-44-BLG-SPW
03-02-2018
UNITED STATES OF AMERICA, Plaintiff/Respondent, v. DEAN LaFROMBOISE, Defendant/Movant.
ORDER DISMISSING AND TRANSFERRING § 2255 MOTION AND DENYING CERTIFICATE OF APPEALABILITY
On March 1, 2018, Defendant LaFromboise filed a motion asking the Court to "recognize and correct an error that is plain and affects a defendant's substantial rights." Mot. for Plain-Error Review (Doc. 828) at 1. LaFromboise, a federal prisoner proceeding pro se, relies on Federal Rule of Criminal Procedure 52(b).
None of the Rules of Criminal Procedure, including Rule 52(b), authorize the re-opening of a final judgment. That authority must be provided by Congress. It is provided in 28 U.S.C. § 2255. See 28 U.S.C. § 2255(a). But LaFromboise has already litigated one § 2255 motion to completion. See Orders (Docs. 707, 734).
The Court of Appeals has not authorized LaFromboise to file a second § 2255 motion in this Court, see 28 U.S.C. §§ 2255(h), 2244(c), so the motion must be dismissed for lack of jurisdiction, Burton v. Stewart, 549 U.S. 147, 149 (2007) (per curiam). A time bar or procedural bar might apply, but those issues cannot be determined in a court that lacks jurisdiction.
A certificate of appealability is denied because the case is clearly controlled by Burton. Gonzalez v. Thaler, ___ U.S. ___, 132 S. Ct. 641, 648 (2012) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)).
Although this Court lacks jurisdiction, the Court of Appeals has jurisdiction to consider an application for leave to file a second § 2255 motion. The motion will be transferred to the Court of Appeals. See 28 U.S.C. § 1631.
Accordingly, IT IS HEREBY ORDERED:
1. LaFromboise's motion (Doc. 828), recharacterized as an unauthorized second or successive motion under 28 U.S.C. § 2255, is DISMISSED for lack of jurisdiction and TRANSFERRED to the Court of Appeals.
2. A certificate of appealability is DENIED. The Clerk of Court shall immediately process the appeal if LaFromboise files a Notice of Appeal.
3. The Clerk of Court shall ensure that all pending motions in this case and in CV 18-44-BLG-SPW are terminated and shall close the civil file by entering a judgment of dismissal.
DATED this 2nd day of March, 2018.
/s/_________
Susan P. Watters
United States District Court