Opinion
Civil Action No. 95-cv-2350-JLK.
November 14, 2005
ORDER
This habeas corpus action is before me on pro se Petitioner's renewed "Motion to Re-open via Federal Rule Civil Procedure 60(b)(4) for the Sole Purpose . . . . . To Obtain vactur of a judgment that is void for lack of Subject-Matter Jurisdiction." I denied Petitioner's previous and substantively identical "Motion to reopen via Federal Rule Civil Procedure 60(b) for the Sole Purpose . . . . . . . To Obtain Vacatur of a Judgement that is void for lack of 'Subject-Matter' jurisdiction" (Doc. 19, filed September 1, 2005) by Minute Order dated October 25, 2005. The renewed Motion, like the initial Motion, seeks to reopen Petitioner's 1995 habeas corpus case on grounds that the indictment in Petitioner's underlying criminal case, 91-CR-127, included a charge at Count 36 that "fails to state or charge a known federal crime or offense under that statute, as defined by Congress." (Renewed) Mot. to Reopen at p. 1. According to Petitioner, this legal error rendered the indictment "void ab initio" under United States v. Martin, 933 F.2d 609 (8th Cir. 1990). Martin does not support Petitioner's position and his overall premise — that the judgment entered on my 1995 order adopting the recommendation of the magistrate judge and dismissing his habeas corpus petition is "void" because a single count of the original indictment on which he was convicted was arguably erroneous — is without merit. The judgment has been affirmed by the Tenth Circuit and this case is closed. Petitioner does not indicate whether his challenge to the validity of Count 36 was ever raised in the underlying state court proceedings, but Rule 60(b) does not provide a vehicle for raising such this argument in a terminated habeas corpus action.
The renewed Motion to Reopen is DENIED, and no further motions to reopen or reconsider 95-K-2350 will be entertained.