Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-13-2006

Johnson v. US Probation Office
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-1660




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Recommended Citation
"Johnson v. US Probation Office" (2006). 2006 Decisions. Paper 458.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/458


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DPS-325                                          NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT

                                     NO. 06-1660
                                  ________________

                                RONALD G. JOHNSON,
                                        Appellant

                                            v.

                             U.S. PROBATION OFFICE OF
                             WILMINGTON DELAWARE

                      ____________________________________

                    On Appeal From the United States District Court
                              For the District of Delaware
                              (D.C. Civ No. 04-cv-01444)
                      District Judge: Honorable Kent A. Jordan
                    _______________________________________


 Submitted For Possible Dismissal Under 28 U.S.C. § 1915(e)(2)(B) or Summary Action
                    Under Third Circuit LAR 27.4 and I.O.P. 10.6
                                   August 31, 2006

   BEFORE: FUENTES, VAN ANTWERPEN and CHAGARES, CIRCUIT JUDGES

                            (Filed:   September 13, 2006)

                             _______________________

                                     OPINION
                             _______________________

PER CURIAM

      Ronald G. Johnson appeals from the United States District Court for the District of

Delaware’s dismissal of his “Motion for Transfer of Case to Proper Jurisdiction.” We
will dismiss the appeal pursuant to 28 U.S.C. 1915(e)(2)(B).

       Johnson was convicted of twenty counts of preparing or aiding and abetting the

preparation of false claims against the United States by the United States District Court

for the Western District of Virginia. In November 2004, while incarcerated at FCI-

Coleman in Florida, Johnson sought federal habeas relief pursuant to 28 U.S.C. §§ 2255

and 2241 in the United States District Court for the District of Delaware. On December

6, 2004, the District Court dismissed for lack of jurisdiction, holding that Johnson should

have filed his § 2255 motion in the court in which he was sentenced and that his § 2241

petition should have been filed in the district with jurisdiction over the custodian. The

Court denied Johnson’s motion for reconsideration in December 2004. This Court

summarily affirmed (with regard to the § 2241 petition) and declined to issue a certificate

of appealability (with regard to the § 2255 motion). See C.A. No. 04-4710.

       In January 2006, over a year after the District Court’s dismissal, Johnson filed a

motion claiming that his earlier filings should have been transferred to the proper

jurisdiction by the District Court. The District Court promptly denied the motion and

Johnson now appeals.

       Although Johnson did not include any authority in support of his motion, the

motion is best understood as asking the District Court to reconsider its 2004 dismissal.

Neither of the provisions that might apply to such a motion would allow a court to act on

Johnson’s motion. Johnson filed the motion well after the ten-day time period permitted

by Rule 59(e), and the motion is untimely with regard to Rule 60(b)(1)-(3). Nor is he

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entitled to relief under Rule 60(b)(4)-(6).

       Even if Johnson’s motion raised a timely and cognizable claim for the District

Court’s reconsideration, the District Court no longer had the power to act in this matter

because Johnson had already appealed the dismissal of his § 2241 and § 2255 filings to

this Court. The District Court closed the case on the docket, and we summarily affirmed

the District Court’s judgment and declined to issue a certificate of appealability. See

Venen v. Sweet, 

, 120 (3d Cir. 1985).

       Because the appeal lacks merit, we will dismiss it pursuant to 28 U.S.C. §

1915(e)(2)(B). The Appellees’ motion for summary action is denied as moot.

Appellant’s motion for appointment of counsel is denied; the motion for “deferral of

ruling on Appellee’s motion” is denied as moot.




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