Opinion
CRIMINAL NO. 1:CR-96-297.
January 17, 2007
MEMORANDUM AND ORDER
Before the court is a document filed by Frankie Thomas entitled "Motion for a Rectification and Modification of Sentence." The court will treat this as a moton pursuant to 28 U.S.C. § 2255. A federal criminal defendant's conviction and sentence are subject to collateral attack in a proceeding before the sentencing court pursuant to 28 U.S.C. § 2255. United States v. Addonizio, 442 U.S. 178, 179 (1979); United States v. Miller, 197 F.3d 644, 648 n. 2 (3d Cir. 1999). The petition will be given preliminary consideration pursuant to Rule 4 of the Rules Governing Section 2254 cases. 28 U.S.C. § 2254.
Petitioner Thomas filed a motion to vacate sentence under 28 U.S.C. § 2255 in September 1998 which was denied by this court. The Third Circuit Court of Appeals declined to issue a certificate of appealability. ( See United States v. Thomas, 3d Cir., No. 99-3050, August 12, 1999). Thomas subsequently filed a series of applications under 28 U.S.C. § 2244 seeking from the court of appeals the authorization to file a second or successive motion under 28 U.S.C. § 2255, each of which was denied. Thomas then filed a motion pursuant to 28 U.S.C. § 2241 which was dismissed. Thomas has not obtained permission from the court of appeals to file the instant motion. 28 U.S.C. § 2244(b)(3)(A).
In light of the foregoing history, as well as Thomas's failure to obtain permission from the Third Circuit to file the instant motion, IT IS HEREBY ORDERED THAT:
1) The motion entitled "Motion for a Rectification and Modification of Sentence Deriving From an Amendment . . ." (doc. 121) is deemed to be a motion filed pursuant to 28 U.S.C. § 2255.
2) The motion is dismissed with prejudice.
3) The court declines to issue a certificate of appealability.
4) the Clerk of Court shall close the file.