USA v. John L. Carraway, 06-3226.  Defendant-Appellant John L. Carraway appeals pro se from the district court’s decision to dismiss, for want of jurisdiction, his post-judgment motion seeking relief from his conviction and sentence and the denial of his request for reconsideration.

Thirteen years ago, a jury convicted Carraway of conspiring to distribute (and to possess with the intent to distribute) cocaine and cocaine base, in violation of 21 U.S.C. § 846. The district court ordered him to serve a prison term of 240 months. On direct appeal, the 7th Circuit affirmed his conviction and sentence. United States v. Carraway, 108 F.3d 745 (7th Cir. 1997) (per curiam).

In 1998, Carraway filed a collateral attack on his conviction pursuant to 28 U.S.C. § 2255. The district court denied his request for relief in October 1999. Carraway appealed buth the 7th Circuit denied his request for a certificate of appealability, concluding that there was no substantial showing of the denial of a constitutional right. See 28 U.S.C. § 2253(c)(2).

On January 24, 2005, Carraway filed a pro se motion that he styled as a request for relief under Federal Rule of Civil Procedure 60(b)(5). 

Carraway’s motion attacked his conviction and sentence on a variety of grounds, but the first and principal argument advanced in his motion was that in view of the Supreme Court’s decisions in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531 (2004), and United States v. Booker, 543 U.S. 220, 125 S.Ct. 738 (2005), his sentence was invalid because its length was determined in part by adverse factual findings rendered by the sentencing judge rather than a jury.

The district court dismissed Carraway’s motion for lack of jurisdiction.  Because Carraway had already pursued one collateral attack on his conviction and sentence, he was precluded from pursuing a second or successive challenge unless authorized to do so by this court. See § 2255 ¶ 8; § 2244(b)(3).

In sum,  the fact that Carraway labeled his current motion as a request for relief under civil Rule 60(b) rather than section 2255 is immaterial; it is the substance of the petitioner’s motion that controls how his request for relief shall be treated. E.g., United States v. Lloyd, 398 F.3d 978, 979-80 (7th Cir. 2005).

As the 7th Circuit stated in United States v. Evans, 224 F.3d 670, 672 (7th Cir. 2000), any post-judgment motion in a criminal proceeding that fits the description of a motion to vacate, set aside, or correct a sentence set forth in the first paragraph of section 2255 should be treated as a section 2255 motion.  In his current motion, Carraway seeks relief from his sentence on the very types of substantive grounds identified in section 2255.

As such, unless and until the movant seeks and obtains permission from the court of appeals to file such a motion, the district court is without jurisdiction to entertain his request. Nuñez v. United States, 96 F.3d 990, 991 (7th Cir. 1996). It is undisputed that Carraway did not seek such authorization. Thus, the district court thus had no option other than to dismiss his motion.

For the full opinions visit the 7th Circuit Court of Appeals Web Site.

For more about attorney Michael J. Petro, visit www.mjpetro.com .

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