Opinion
Case No. 96-40064-01-DES, 99-3266-DES
December 6, 2001
MEMORANDUM AND ORDER
This matter is before the court on defendant's Motion to Request Entry of Judgment pursuant to Rule 58 of the Federal Rules of Civil Procedure (Doc. 161). The Clerk of the Court has not entered judgment on the docket in regards to defendant's original 28 U.S.C. § 2255 motion, which the court denied in its September 22, 1999, Memorandum and Order (Doc. 138).
In this district, it is standard procedure for the Clerk of the court not to enter judgment in § 2255 motions.
It is currently undecided in the Tenth Circuit whether a separate judgment must be entered on the docket in conformance with Rule 58 in all § 2255 motions. It is argued that a memorandum and order unaccompanied by a separately entered judgment in accordance with Rule 58 does not operate as a final entry of judgment under Rule 4(a)(1)(B) of the Federal Rules of Appellate Practice. See Rules Governing Section 2255 Proceedings, Rule 11 (time for appeal of order denying relief "is as provided in Rule 4(a)"). See also United State v. Hodges, No. 98-20044, 2001 WL 1222205, at 1 (D. Kan. Oct. 4, 2001) (finding Tenth Circuit would most likely agree with majority of circuits in holding Rule 58's requirement of separately entered judgment must be satisfied in order to begin sixty day period to file notice of appeal in § 2255 proceedings).
In relevant part, Rule 58 states: "Every judgment shall be set forth on a separate document. A judgment is effective only when so set forth and when entered as provided in Rule 79(a)." Rule 79(a) of the Federal Rules of Civil Procedure, in turn, provides: "All . . . orders and judgments shall be entered chronologically in the civil docket These entries . . . shall show . . . the substance of each order or judgment of the court . . .
Rule 4(a)(1)(B) states: "When the United States or its officers or agency is a party, the notice of appeal may be filed by any party within 60 days after the judgment or order is appealed from is entered."
Regardless of how this issue is ultimately decided, the procedural history of this particular case does not necessitate the entry of judgment at this time. On August 6, 1999, defendant filed a Motion to Vacate, Set Aside or Correct Sentence Pursuant to 28 U.S.C. § 2255 (Doc. 133). The court's September 22, 1999, Memorandum and Order denied all relief. United States v. Miller, 71 F. Supp.2d 1113 (D. Kan. 1999).
Approximately one year later, on September 11, 2000, defendant filed a Motion for Reopening Time to File an Appeal (Doc. 144) Thereafter, in its November 9, 2000, Order (Doc. 148), the court denied the motion to reopen. Defendant next filed two subsequent motions seeking relief. The first Motion (Doc. 149), brought pursuant to Rule 60(b) of the Federal Rules of Civil Procedure, was denied as procedurally improper by the court in its February 1, 2001 Order (Doc. 150). The second Motion (Doc. 151), brought pursuant to Rule 12 of the Rules Governing Section 2255 Proceedings, was also denied as procedurally improper by the court in its March 7, 2001 Order (Doc. 152).
Defendant timely appealed the court's March 7, 2001 Order. In an opinion filed November 6, 2001, the Tenth Circuit vacated the court's order. United States v. Miller, No. 01-3103 (10th Cir. Nov. 6, 2001) (unpublished). The circuit court held this court was without jurisdiction to consider defendant's subsequent motion, for defendant's motion should have been interpreted as a second or successive § 2255 motion. Therefore, the court was required to transfer the subsequent motion to the court of appeals for authorization pursuant to § 2255. The Tenth Circuit continued by interpreting defendant's appeal as a request to file a second or successive § 2255 motion, which the circuit court denied. Defendant now presents the instant request.
Defendant's request, while not explicitly stating as much, is an attempt to call into question the appealability and/or finality of the court's order denying his original § 2255 motion. However, the court is bound by the rule of the case as mandated by the Tenth Circuit. Inherent in its decision to construe defendant's motion as a second § 2255 motion, is the acknowledgment that the denial of defendant's first § 2255 motion was final. The court will not now open the door for an appeal of an original § 2255 motion when the circuit court has already denied defendant authorization to bring a second § 2255 motion.
The court would also note defendant did not originally raise this issue when the court first considered the appealability of its September 22, 1999, Memorandum and Order. Instead, believing his time for appeal had passed, defendant argued solely for the court to reopen the time to appeal. While the administrative act of filing the judgment was omitted, the court finds no justification, and indeed no authority in light of the circuit court's opinion, for entering a judgment and redrawing the entire procedural backdrop of this case.
IT IS THEREFORE BY THIS COURT ORDERED that defendant's Motion to Request Entry of Judgment pursuant to Rule 58 of the Federal Rules of Civil Procedure (Doc. 161) is denied.