September 25, 2013
UNITED STATES OF AMERICA, Plaintiff,
GREGORY DAVIS, Defendant.
MEMORANDUM OPINION & ORDER
JOSEPH M. HOOD, Senior District Judge.
This matter is before the Court upon the "Ex Parte Application for Emergency Relief Fed.R.Civ.P. 60(b)(6)" and Motion for Hearing filed by Petitioner [DE 280, 281], in which Davis asks this Court to reopen his September 2, 2008, Petition for Habeas Corpus pursuant to 28 U.S.C. § 2255 [DE 194]. He explains that he has now "fully completed the 120 month term in Count 1 of Case No. 02-111, and can not be sentence[d] to the consecutive 70 month term in Count 2 of Case No. 02-111, which expires 7/26/2016...."
As an initial matter, the Court sees no reason for these motions to have been filed ex parte or outside the knowledge of the United States of America. Nor does this Order need to be entered ex parte. Accordingly, the Clerk shall remove the seal on Petitioner's motions [DE 280, 281], and this Memorandum Opinion and Order shall be filed as part of the public record, as well.
Next, the Court notes that Petitioner's Motion for relief under Rule 60(b)(6) is, in fact, a second or successive habeas petition. He argues that it should not be so construed because he does not assert an error in the underlying conviction; rather, he attacks his sentence. That Davis seeks to attack his sentence, as opposed to the conviction itself, is a distinction without meaning in this instance. Davis again attacks the judgment of this Court, which encompassed both his conviction and his sentence. This is a classic example of a second and successive habeas petition, and Petitioner "must obtain an order from the appropriate court of appeals authorizing [this Court] to consider the motion, as required by 28 U.S.C. § 2255, para. 8." Rule 9 of the Rules Governing Section 2255 Proceedings for the United States District Courts.
Accordingly, IT IS ORDERED:
(1) that the Clerk shall REMOVE the seal placed on "Ex Parte Application for Emergency Relief Fed.R.Civ.P. 60(b)(6)" and Motion for Hearing filed by Petitioner [DE 280, 281]; and
(2) that Petitioner's "Ex Parte Application for Emergency Relief Fed.R.Civ.P. 60(b)(6)" and Motion for Hearing filed by Petitioner [DE 280, 281] are DENIED.