UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY
March 28, 2008
UNITED STATES OF AMERICA, PLAINTIFF,
JOSEPH MOTEN, DEFENDANT.
The opinion of the court was delivered by: Hon. Faith S. Hochberg, U.S.D.J.
This matter having come before the Court upon Defendant's motion to be relieved from final judgment pursuant to Fed. R. Crim. P. 52(b)*fn1 , asserting that the Court improperly applied a sentencing enhancement;*fn2 and the Court finding that while styled as a motion to be relieved from judgment under Fed. R. Crim. P. 52(b), Defendant's motion is actually a motion under 28 U.S.C. § 2255, as it is simply an attack on his sentence; and the Court further finding that this is a successive § 2255 motion because Defendant previously brought nearly this identical argument in a § 2255 motion he filed on February 17, 2005 and which was denied by this Court on August 1, 2005*fn3 ; and the Court noting that a successive § 2255 motion is subject to the gate-keeping provisions of the Antiterrorism and Effective Death Penalty Act of 1996("AEDPA")*fn4 ; and the Court finding that because Defendant did not seek such authorization from the Court of Appeals, this Court is without jurisdiction to entertain this § 2255 motion; and the Court further finding that transfer of this action to the court of appeals would be futile because Defendant does not cite any newly discovered evidence nor does he identify any new rule of constitutional law; and for good cause having been shown,
IT IS therefore on this 28th day of March, 2008,
ORDERED that Defendant's motion under 28 U.S.C. § 2255, which he filed as a motion under Fed. R. Crim. P. 52(b), is DENIED.