2005 | Cited 0 times | D. Massachusetts | November 4, 2005


The petitioner in this matter, who was convicted of bankrobbery and sentenced by me in 1994, seeks to have me "strikedown the indictment" upon which his conviction rests.

The petitioner, since his judgment of conviction was affirmedin part, United States v. Spinney, 65 F.3d 231 (1st Cir. 1995),twice unsuccessfully sought relief from me under28 U.S.C. § 2255. See Civil Action Nos. 97-10935-DPW and 01-10986-DPW.While he styles this new collateral attack on his conviction as a"Motion for relief from judgment via: Federal Rules of CivilProcedure 60(b)(6)," the motion in substance is one raisingclaims for relief which must be sought under 28 U.S.C. § 2255.Gonzalez v. Crosby, 125 U.S. 2641 (2005). Accordingly, Iinstructed the clerk to open a new § 2255 docket for theproceeding. However, I find having done so, I am withoutauthority to address his claims on the merits because he isbarred from presenting them in this court through § 2255.

First, the petitioner's claims are untimely. His convictionbecame final no later than January 24, 1997, when his second amended judgment was docketed in the underlying criminal case.Section 2255 contains a limitation period which provides, withcertain exceptions and refinements not relevant here, that apetition is time barred if brought more than one year after thedefendant's conviction became final.

Second, this is a successive § 2255 petition following twoprevious unsuccessful § 2255 actions. Successive petitions suchas this must be preceded by an application for authorization bythe Court of Appeals pursuant to Local Rule 22.2 of the UnitedStates Court of Appeals for the First Circuit. See generallyPratt v. United States, 129 F.3d 54, 57 (1st Cir. 1997). Thedefendant's failure to obtain such authorization provides aseparate and independent grounds for dismissing the instantrequest for relief.

The clerk is hereby directed to DISMISS this case.

Back to top