Opinion
Case No. 00-CR-242, No. 06-CV-1122.
October 26, 2006
DECISION AND ORDER
The Movant, Willie J. Newton ("Newton"), has brought a motion captioned "Motion Seeking Relief Pursuant to Fed. Rules Civ Proc. 60(b) (1) through (6) `Fraud Upon the Court.'" Newton is currently serving a life sentence in federal prison after a jury conviction for drug trafficking. Newton's sentence was affirmed on appeal. Newton also filed a motion attacking his sentence under 28 U.S.C. § 2255. This motion was summarily dismissed by the Court on October 25, 2004. See Decision and Order, Case No. 04-C-718 (Docket No. 5).
Newton's motion, although styled as a motion under Rule 60, must be construed as a motion under Section 2255, as it attacks the constitutional validity of his prison sentence. See 28 U.S.C. § 2255 ¶ 1; see also United States v. Evans, 224 F.3d 670, 672 (7th Cir. 2001). As noted above, Newton previously filed a motion under Section 2255. Therefore, the present motion is a "second or successive" petition as defined by 28 U.S.C. § 2255 ¶ 8. Because Newton failed to obtain appellate approval prior to filing the instant motion pursuant to § 2255 ¶ 8, it must be dismissed for lack of jurisdiction. See Evans at 672 (any post-judgment motion in a criminal proceeding that fits the description of § 2255 ¶ 1 is a motion under § 2255 . . . the second (and all subsequent) of these requires appellate approval).
NOW, THEREFORE, BASED ON THE FOREGOING, IT IS HEREBY ORDERED THAT:
Newton's motion [Docket No. 194] is DISMISSED for lack of jurisdiction.
SO ORDERED.