United States District Court, E.D. Wisconsin
STADTMUELLER U.S. DISTRICT JUDGE
a member of the Outlaws biker gang, was charged in 1997 with
various counts of racketeering, drug distribution, and
violence with deadly weapons. (Docket #1). He was found
guilty by a jury after a three-month trial in the summer of
2000. (Docket #1527). The Court sentenced Defendant to life
imprisonment in December 2000. (Docket #1741). He appealed
and his convictions were affirmed by the Seventh Circuit in
January 2003. (Docket #1970 and #1979). Defendant thereafter
filed a motion to vacate his convictions pursuant to 28
U.S.C. § 2255, which the Court denied in July 2007.
Kevin P. O'Neill v. United States, Case No. 04-
CV-461-JPS (E.D. Wis.), (Docket #31). His appeals of that
decision were rejected in October 2008. Id., (Docket
#56). A final motion for reconsideration was denied in
September 2013. Id., (Docket #61).
five years later, on June 15, 2018, Defendant filed a motion
for relief from the judgment in his criminal case. (Docket
#2196).Defendant's motion is made pursuant to
Federal Rule of Civil Procedure 60(b), the rule for
reconsideration in civil cases, 28 U.S.C. § 455, the
statute for disqualification of judges, and “the due
process clause.” Id. at 1. Defendant contends
that the undersigned was involved in the investigation and
prosecution of his crimes, including a scheme to fabricate
grand jury testimony. Id. at 2-7. Under that
assumption, Defendant asserts that the undersigned should
have disqualified himself from Defendant's criminal case
under Section 455. Id. at 11-22. He further asserts
that his criminal case should be reopened pursuant to Rule
60(b), and in light of these extraordinary circumstances, his
judgment of conviction should be vacated. Id. at
21-24. Defendant does not expound on any due process theory.
motion suffers numerous fatal flaws, not least of which is
the utter falsity of his accusations, but one failing is
jurisdictional and therefore takes precedence. Defendant
expressly requests that his convictions and sentence be
vacated. Id. at 24. Such relief is only available
via a Section 2255 motion. 28 U.S.C. § 2255(a).
Defendant's invocation of Rule 60(b), Section 455, and
the Due Process Clause cannot alter that fact. United
States v. Carraway, 478 F.3d 845, 848-49 (“The
fact that Carraway labeled his 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.”); Melton v. United States, 359 F.3d
855, 857 (7th Cir. 2004) (“Prisoners cannot avoid the
AEDPA's rules by inventive captioning. . . . Call it a
motion for a new trial, arrest of judgment, mandamus,
prohibition, coram nobis, coram vobis, audita querela,
certiorari, capias, habeas corpus, ejectment, quare impedit,
bill of review, writ of error, or an application for a
Get-Out-of-Jail Card; the name makes no difference. It is
substance that controls.”) (citations omitted).
Defendant seeks a remedy only available in a Section 2255
proceeding, the Court must recharacterize his motion, and
this action, as such. Melton, 359 F.3d at 857-58
(recharacterizing a successive collateral motion in the
sentencing court as a Section 2255 motion is permissible).
The problem with this (and one surely not lost on Defendant)
is that prisoners are permitted to file only one such action.
Any later Section 2255 motions may only be brought in the
sentencing court after the prisoner has received
approval from the Court of Appeals to do so. 28 U.S.C. §
2255(h). Defendant has already filed, and lost, his first
Section 2255 action, and offers no evidence that the Seventh
Circuit has approved of the instant motion. The motion must,
therefore, be dismissed for want of jurisdiction. Suggs
v. United States, 705 F.3d 279, 282 (7th Cir. 2013)
(“Without authorization from the court of appeals, the
district court has no jurisdiction to hear [a successive
Section 2255 motion].”).
IT IS ORDERED that Defendant's initial
motion for relief from judgment (Docket #2193) be and the
same is hereby DENIED as moot;
IS FURTHER ORDERED that Defendant's amended
motion for relief from judgment (Docket #2196) shall be
recharacterized as a motion to vacate his sentence pursuant
to 28 U.S.C. § 2255, and a separate civil action shall
be opened to that effect; and
IS FURTHER ORDERED that the newly-opened civil
action (Case No. 18-CV-989-JPS) be and the same is hereby
DISMISSED for lack of jurisdiction pursuant
to 28 U.S.C. § 2255(h).
Clerk of the Court is directed to enter judgment accordingly
in the newly-opened civil action (Case No. 18-CV-989-JPS).
All docket citations are to
Defendant's criminal case, Case No. 97-CR-98-1, unless
otherwise stated herein.
Plaintiff originally filed a similar
motion on March 28, 2018. (Docket #2193). Due to an issue
with a missing page, Defendant resubmitted a corrected copy
of the motion on ...