Opinion
No. 88 CR 846-1
October 4, 2001
MEMORANDUM ORDER
On July 25, 2000 this Court issued the attached memorandum order ("Order") rejecting a motion that had been tendered by Charles Hayes ("Hayes"), in which he had sought relief from his conviction back in 1989 on the premise that it was based on a void indictment. Although Hayes sought to disclaim 28 U.S.C. § 2255 ("Section 2255") as the road to such relief (obviously the one-year statute of limitations had long since time-barred his access to that statute), there is really no arguable predicate for anyone's taking an end run around Section 2255 and its limitations (either in terms of time or otherwise) in that fashion. Accordingly this Court's view is that the earlier unsuccessful motion had to be viewed as an effort to obtain relief via Section 2255. even though the Order did turn to the merits of his motion and found it substantively wanting.
Now Hayes has tried again with a new filing, this time labeled "Notice of Objection and Challenge to Court's Jurisdiction Pursuant to Federal Rules of Criminal Procedure Rule 12(b)(2)," accompanied by another document headed "Motion for Release on Bail (Personal Recognizance) Pending Issuance of Order Dismissing the Cause." Again the only predicate for launching such a collateral attack must be viewed as a motion under Section 2255, which it will be recalled provides a source of relief for any federal prisoner "claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence" — an accurate characterization of Hayes' current contention.
If then the current filing were to be viewed as a "second or successive motion" under Section 2255 because of Hayes' unsuccessful effort last year, it would have to be tendered first to our Court of Appeals for permission to proceed (see the last paragraph of Section 2255 as well as 28 U.S.C. § 2244 (3)). That basis of disposition might however be viewed as unfair to Hayes, given the fact that the Order did not stateexpressly that his earlier motion would be viewed as one under Section 2255, But that is of no moment, for the patent untimeliness of a current Section 2255 motion dooms Hayes' current effort in any event.
Accordingly Hayes' current motion must be and is denied. Although this Court remains of the same point of view (as expressed in the Order) that the law that compelled the imposition of a 15-year prison term operated with extraordinary harshness in his case, that does not justify ignoring the clear dictates of the law now (just as it could not have justified ignoring such clear dictates at the time of sentencing).