Opinion
Criminal Case No. 95-40084-01-SAC, Civil Case No. 98-3245-SAC.
February 2, 2001.
MEMORANDUM AND ORDER
The court in an order filed June 8, 1999, treated the defendant's motion to dismiss as a motion for relief pursuant to 28 U.S.C. § 2255 and dismissed the motion with prejudice as untimely. (Dk. 51). A month later the defendant filed an "Emergency Motion for Relief of Judgment and Order of Discharge, in the Interest of Justice pursuant to Fed.R.Civ.P. 60(b)(6)." (Dk. 52).
"The exclusive remedy for testing the validity of a judgment and sentence, unless it is inadequate or ineffective, is that provided for in 28 U.S.C. § 2255." Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir. 1996). The Tenth Circuit has held that a Rule 60(b) post-judgment motion filed in a § 2255 proceeding "cannot be used to circumvent restraints on successive habeas petitions" contained in the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Lopez v. Douglas, 141 F.3d 974, 975 (10th Cir.), cert. denied, 525 U.S. 1024 (1998). Thus, under the AEDPA, the defendant's Rule 60(b) motion is a "second" § 2255 petition and he must obtain prior authorization from the Tenth Circuit before filing it. 28 U.S.C. § 2244 and 2255; see Lopez v. Douglas, 141 F.3d at 975. When a defendant files a successive § 2255 motion without first seeking the required authorization, the district court must transfer the motion to the appellate court in the interest of justice pursuant to 28 U.S.C. § 1631. Coleman v. United States, 106 F.3d 339, 341 (10th Cir. 1997). Even though the defendant's second petition is as untimely as the defendant's first, the court still must transfer the motion to the Tenth Circuit. See United States v. Espinoza-Saenz, 235 F.3d 501, 503 (10th Cir. 2000).
IT IS THEREFORE ORDERED that the defendant's motion for relief (Dk. 52) pursuant to Fed.R.Civ.P. 60(b) is treated as his second motion for relief pursuant to 28 U.S.C. § 2255 and is transferred to the Tenth Circuit Court of Appeals pursuant to 28 U.S.C. § 1631;
IT IS FURTHER ORDERED that the Clerk of the Court shall forward a copy of the defendant's motion (Dk. 52), along with a copy of this Memorandum and Order, to the Clerk of the Tenth Circuit Court of Appeals for processing under 28 U.S.C. § 2244(b)(3). The Clerk also shall send a copy of this Memorandum and Order to the defendant and the local office of the United States Attorney.