Opinion
CASE NO.1:CR-01-193 CASE NO.1:CR-05-006 CASE NO.1:CR-05-203 CASE NO.1:CR-05-228 CASE NO.1:CR-05-232 CASE NO.1:CR-05-252 CASE NO.1:CR-05-253 CASE NO.1:CR-05-256 CASE NO.1:CR-05-259 CASE NO.1:CR-05-284 CASE NO.1:CR-05-285 CASE NO.1:CR-05-287 CASE NO.1:CR-05-288 CASE NO.1:CR-05-294 CASE NO.1:CR-05-296 CASE NO.1:CR-05-305 CASE NO.1:CR-05-306 CASE NO.1:CR-05-324 CASE NO.1:CR-05-367 CASE NO.1:CR-05-440 CASE NO.1:CR-05-456
03-26-2012
UNITED STATES OF AMERICA v. JOHN MIZIC
MEMORANDUM
Before the court is Defendant John Mizic's pro se motion for reconsideration of this court's denial of a motion for reduction of the sentence imposed on February 17, 2007 (doc. 71). That sentence was affirmed by the Third Circuit Court of Appeals on September 21, 2009 (doc. 38). An amended judgment was filed on March 11, 2010 (doc. 41). This amended judgment gave Mizic a ten-month reduction pursuant to Federal Rule of Criminal Procedure 35(b).
On April 7, 2010, Mizic filed a motion pursuant to 28 U.S.C. § 2255 to vacate, set aside, or reduce sentence (doc. 42). On April 9, 2010, this court issued an administrative order containing notice to Mizic of the limitations on filing motions pursuant to 28 U.S.C. § 2255 (doc.45). On April 15, 2010, Mizic filed a notice of election in which he stated his intention to proceed on the § 2255 motion as filed (doc. 46). On April 15, 2010, an order was issued directing the Government to show cause why relief should not be granted (doc. 47).
In this motion, Mizic claimed that the 99 month consecutive sentence imposed was contrary to the concurrent sentence which was bargained for and that such a consecutive sentence imposed an additional six months imprisonment. Following briefing, counsel was ultimately appointed for Mizic. Following consultations among the counsel for the government, defense counsel, and the probation officer, an agreement was reached to resolve any outstanding sentencing issues. An amended judgment was entered on November 2, 2010 (doc. 67). Thereafter, on November 22, 2010, Mizic filed, pro se, a motion withdrawing all remaining claims contained in his § 2255 motion (doc. 68), which was granted by this court (doc.70). No appeal was taken from this judgment.
The instant motion does not set forth under what Federal Rule of Criminal Procedure he brings this motion. It is untimely under Federal Rule of Criminal Procedure 35. If it is intended to be another motion pursuant to 28 U.S.C. § 2255, it is not only untimely but would be considered a second or successive petition requiring consent to file from the Third Circuit Court of Appeals.
Therefore, this court is without jurisdiction to consider the motion. An appropriate order will be issued.
Sylvia H. Rambo
United States District Judge
UNITED STATES OF AMERICA
v.
JOHN MIZIC
CASE NOS.1:CR-01-193
1:CR-05-006
1:CR-05-203
1:CR-05-228
1:CR-05-232
1:CR-05-252
1:CR-05-253
1:CR-05-256
1:CR-05-259
1:CR-05-284
1:CR-05-285
1:CR-05-287
1:CR-05-288
1:CR-05-294
1:CR-05-296
1:CR-05-305
1:CR-05-306
1:CR-05-324
1:CR-05-367
1:CR-05-440
1:CR-05-456
ORDER
In accordance with the accompanying memorandum, IT IS HEREBY ORDERED THAT the document entitled, "Motion for Reconsideration of the Court's Denial of Motion for Reduction of Sentence Imposed February 17, 2007" (doc. 71) is dismissed for lack of jurisdiction.
Sylvia H. Rambo
United States District Judge