United States District Court, E.D. Wisconsin
MEMORANDUM AND ORDER
PHIL GILBERT, DISTRICT JUDGE.
matter comes before the Court on petitioner Ernest F.
Clark's motion for reassignment to a judge of the Eastern
District of Wisconsin (Doc. 36) and motion to vacate the
judgment pursuant to Federal Rule of Civil Procedure 60(b)(4)
(Doc. 37). The Government has responded to the motions (Doc.
42), and Clark has replied to that response (Doc. 43).
February 2012, the undersigned judge, at that time an active
judge of the United States District Court for the Southern
District of Illinois, was designated and assigned pursuant to
28 U.S.C. § 292(b) to the United States District Court
for the Eastern District of Wisconsin “from January 1,
2012 through December 31, 2012, and for such additional time
as may be required to complete unfinished business heard
during this period.” Order of Frank H. Easterbrook,
Chief Judge, United States Court of Appeals for the Seventh
Circuit (Dec. 30, 2011) (“Easterbrook
Designation”). During that time period, the undersigned
judge presided over Clark's criminal trial in No.
11-cr-30-JPG-2 (E.D. Wis.). Clark was convicted, and the
undersigned judge sentenced him to serve 1, 951 months in
prison. The Court of Appeals affirmed that judgment, and the
Supreme Court denied Clark's petition for a writ of
certiorari. United States v. Clark, 754
F.3d 401 (7th Cir.), cert. denied, 135 S.Ct. 251
then filed a motion to vacate, set aside or correct his
sentence under 28 U.S.C. § 2255, No. 15-cv-0726-JPG,
which the undersigned judge denied in March 2016 (Doc. 21).
The Court of Appeals affirmed that decision as well, and the
Supreme Court again denied Clark's petition for a writ of
certiorari. Clark v. United States, 680
Fed.Appx. 470 (7th Cir.), cert. denied, 138 S.Ct.
February 14, 2018, the undersigned judge was expressly
designated and assigned pursuant to 28 U.S.C. § 294(c)
to “perform the duties of district judge in the United
States District Court for the Eastern District of Wisconsin
in the matter of Ernest Franklin Clark v. United States
of America, No. 15-cv-0726, and for such additional time
as may be required to complete unfinished business heard
during this period.” Order of Diane P. Wood, Chief
Judge, United States Court of Appeals for the Seventh Circuit
(Feb. 14, 2018) (“Wood Designation”).
now asks the Court to assign a different judge to hear his
Rule 60(b)(4) motion. His Rule 60(b)(4) motion is based on
his belief that the undersigned judge did not have
jurisdiction to decide his § 2255 motion in light of the
fact that the Easterbrook Designation had expired. Clark
believes that the undersigned judge likewise lacks
jurisdiction to hear a motion to vacate that § 2255
Motion for Reassignment
Court first addresses Clark's request that this matter be
assigned to a new judge because the undersigned judge lacks
jurisdiction under the Easterbrook Designation to hear his
§ 2255 case. Whatever infirmities may have existed in
the Court's authority to hear Clark's § 2255
motion - which the Court discusses below - they have been
cured by the Wood Designation. That designation provides
ample authority for the undersigned judge to decide
Clark's pending motions. Accordingly, the Court will deny
Clark's motion for reassignment to a new judge.
Motion to Vacate Judgment
Court next considers Clark's request under Rule 60(b)(4),
which provides that the Court may relieve a party from a
judgment in a civil case where the judgment is void. As a
preliminary matter, the Court considers the question of
whether this Clark motion amounts to an unauthorized second
or successive § 2255 motion since it seeks to vacate the
judgment entered on his original § 2255 motion. In order
for this Court to consider a successive petition, the Seventh
Circuit Court of Appeals must certify the successive petition
pursuant to 28 U.S.C. § 2255(h). Curry v. United
States, 507 F.3d 603, 604 (7th Cir. 2007); Nunez v.
United States, 96 F.3d 990, 991 (7th Cir. 1996).
Court finds it is not a successive petition. A post-judgment
motion such as a Rule 60(b) motion that advances a new claim,
that is, a new ground for relief from a conviction, or an
attack on the Court's prior resolution of a ground for
relief on the merits is a successive petition. See
Gonzalez v. Crosby, 545 U.S. 524, 531 (2005)
(habeas context); see United States v.
Scott, 414 F.3d 815, 816 (7th Cir. 2005) (considering
post-judgment Rule 6(e) motion). However, a Rule 60(b) motion
that does not assert or reassert claims of error in the
conviction and instead points to a defect in the integrity of
the § 2255 proceedings is not a successive petition.
Gonzalez, 545 U.S. at 532; see Scott, 414
F.3d at 816. Clark's motion asserts a defect in the
integrity of the prior § 2255 proceedings - a lack of
jurisdiction to render the judgment - so it amounts to a
bona fide Rule 60(b) challenge, not a second or
successive § 2255 motion.
the Court will consider the motion on its merits.
asks the Court to vacate the judgment denying his § 2255
motion on the grounds that the undersigned judge lacked
jurisdiction to decide that § 2255 motion. Clark rests
his argument on Frad v. Kelly, 302 U.S. 312 (1937),
which held that, once a criminal judgment is entered, further
proceedings in the case are new matters. In Frad, a
district judge sat by designation for a limited time period
in another district. After his designation had expired and he
had returned to his home district, the judge terminated the
probation of a defendant in a criminal case he had heard
while visiting in the other district. Id. at 313.
The Frad Court held that, for purposes of the
designation statutes, a criminal case ended with “the
judgment of sentence entered upon . . . a verdict of
guilty.” Frad, 302 U.S. at 317. The Court
determined that the ...