Opinion
Criminal Case No. 3:10-CR-132 JD Civil Case No. 3:12-CV-398
06-17-2014
UNITED STATES OF AMERICA v. FRANK E. STORK
OPINION AND ORDER
Frank Stork was convicted for possessing a firearm as a convicted felon, and was sentenced to 82 months of imprisonment. [DE 71]. Mr. Stork later filed a petition to vacate his sentence under 28 U.S.C. § 2255, which this Court denied, followed by a motion to amend the judgment denying that petition, which the Court likewise denied. Mr. Stork has now filed a second motion pursuant to Rule 60(b)(4) of the Federal Rules of Civil Procedure, which allows a court to vacate a judgment where "the judgment is void," Fed. R. Civ. P. 60(b)(4), based on his argument that the Court lacked subject matter jurisdiction over the criminal proceedings. However, the "judgment" to which this rule refers would be this Court's judgment denying Mr. Stork's § 2255 petition—not his judgment of conviction, to which the Federal Rules of Civil Procedure do not apply. Mr. Stork does not claim, though, that the Court lacks subject matter jurisdiction on his § 2255 petition; to the contrary, he asks the Court to invoke its authority under that section to vacate his conviction. Rule 60 is therefore inapplicable here, as it does not provide a basis for vacating Mr. Stork's underlying conviction, so Mr. Stork's motion [DE 144] is DENIED.
The Court has already denied a motion for relief under § 2255, so any further motion seeking this relief would constitute a second or successive motion under § 2255, which this Court cannot address unless Mr. Stork first obtains an order from the Court of Appeals authorizing such a motion. 28 U.S.C. § 2255(h); 28 U.S.C. § 2244; Rule 9 of the Rules Governing Section 2255 Proceedings for the United States District Courts. The Court hereby NOTIFIES Mr. Stork that it will construe any further motions seeking to vacate or amend his conviction or sentence as second or successive petitions under § 2255, and it will deny them without further warning unless Mr. Stork has obtained leave from the Court of Appeals to file such a motion.
The Court again reminds Mr. Stork that he "may seek a certificate [of appealability] from the court of appeals under Federal Rule of Appellate Procedure 22" if he wishes to appeal this Court's denial of his motion under § 2255. Rule 11(a), Rules Governing Section 2255 Proceedings for the United States District Courts.
SO ORDERED.
JON E. DEGUILIO
Judge
United States District Court