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United States v. Thomas

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA


January 17, 2007

UNITED STATES OF AMERICA
v.
FRANKIE THOMAS

The opinion of the court was delivered by: Sylvia H. Rambo United States District Judge

MEMORANDUM AND ORDER

Before the court is a document filed by Frankie Thomas entitled "Motion for a Rectification and Modification of Sentence." The court will treat this as a moton pursuant to 28 U.S.C. § 2255. A federal criminal defendant's conviction and sentence are subject to collateral attack in a proceeding before the sentencing court pursuant to 28 U.S.C. § 2255. United States v. Addonizio, 442 U.S. 178, 179 (1979); United States v. Miller, 197 F.3d 644, 648 n.2 (3d Cir. 1999). The petition will be given preliminary consideration pursuant to Rule 4 of the Rules Governing Section 2254 cases. 28 U.S.C. § 2254.

Petitioner Thomas filed a motion to vacate sentence under 28 U.S.C. § 2255 in September 1998 which was denied by this court. The Third Circuit Court of Appeals declined to issue a certificate of appealability. (See United States v. Thomas, 3d Cir., No. 99-3050, August 12, 1999). Thomas subsequently filed a series of applications under 28 U.S.C. § 2244 seeking from the court of appeals the authorization to file a second or successive motion under 28 U.S.C. § 2255, each of which was denied. Thomas then filed a motion pursuant to 28 U.S.C. § 2241 which was dismissed. Thomas has not obtained permission from the court of appeals to file the instant motion. 28 U.S.C. § 2244(b)(3)(A).

In light of the foregoing history, as well as Thomas's failure to obtain permission from the Third Circuit to file the instant motion, IT IS HEREBY ORDERED THAT:

1) The motion entitled "Motion for a Rectification and Modification of Sentence Deriving From an Amendment . . ." (doc. 121) is deemed to be a motion filed pursuant to 28 U.S.C. § 2255.

2) The motion is dismissed with prejudice.

3) The court declines to issue a certificate of appealability.

4) the Clerk of Court shall close the file.

20070117

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