United States v. Rufus Sims , 597 F. App'x 388 ( 2015 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted March 13, 2015 *
Decided March 25, 2015
Before
DIANE P. WOOD, Chief Judge
RICHARD A. POSNER, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
No. 14-3149
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Northern District of
Illinois, Eastern Division.
v.
No. 92 CR 166
RUFUS SIMS,
Defendant-Appellant. Harry D. Leinenweber,
Judge.
*
This successive appeal has been submitted to the original panel pursuant to
Operating Procedure 6(b). After examining the briefs and record, we have concluded
that oral argument is unnecessary. Thus the appeal is submitted on the briefs and
record. See FED. R. APP. P. 34(a)(2).
No. 14-3149 Page 2
ORDER
Rufus Sims was convicted on money laundering charges and sentenced to 327
months in prison in December 1995. On appeal, this court affirmed both the conviction
and the sentence. United States v. Sims, 144 F.3d 1082 (7th Cir. 1998). Sims sought
post-conviction relief pursuant to 28 U.S.C. § 2255 in 1999, but the district court denied
his motion, United States v. Sims, 71 F. Supp. 2d 874 (N.D. Ill. 1999), and this court denied
Sims’s request for a certificate of appealability.
Since that time, Sims has filed three more motions in the district court, all in an
effort to mount a collateral attack on his conviction and sentence. See United States v.
Sims, No. 02-2397 (7th Cir. July 1, 2003) (motion under Federal Rule of Civil Procedure
60(b)); United States v. Sims, No. 08-3837 (7th Cir. Jan. 9, 2009) (motions under Rule 60(b)
and 18 U.S.C. § 3582(c)). During the same period, Sims also filed three petitions for writs
of habeas corpus pursuant to 28 U.S.C. § 2241, each in a different judicial district; none
was successful. See Sims v. Conley, No. 06-55970 (9th Cir. Dec. 21, 2006); Sims v. Purdue,
No. 12-3280 (7th Cir. Feb. 14, 2013); Sims v. Holland, No. 12 CV 155, 2013 WL 1628241
(E.D. Ky. April 15, 2013) (denying Sims’s motion as an abuse of the writ). Undeterred by
this track record, he then filed a purported motion in the original criminal action, case
92 CR 166. Sims asserted that he was entitled to invoke the version of Federal Rule of
Criminal Procedure 35(a) that was in effect prior to November 1, 1987. He later filed a
“Motion to Expand” his supposed Rule 35(a) motion.
We need not tarry on the merits of Sims’s new effort to attack his 1995 conviction
and sentence. The district court ruled that it lacked jurisdiction to consider Sims’s latest
motions, because they were effectively unauthorized successive motions under 28 U.S.C.
§ 2255 for which Sims had failed to obtain permission to file from this court, as required
by § 2255(h). The district court was correct. We have long held that “any post-judgment
motion in a criminal proceeding that fits the description of § 2255 ¶ 1 is a motion under
§ 2255, and that the second (and all subsequent) of these requires appellate approval.”
United States v. Evans, 224 F.3d 670, 672 (7th Cir. 2000). Sims’s current motion, which
seeks to challenge the district court’s finding long ago that his offense conduct continued
after the effective date of the Sentencing Guidelines, is just such a motion. We add for the
sake of economy that nothing Sims has presented in this latest round meets the criteria
found in 28 U.S.C. § 2255(h) for authorization of a successive motion. We therefore
decline to construe Sims’s notice of appeal as a belated request for authorization to file
this action.
No. 14-3149 Page 3
The district court’s judgment, which was on the merits, is modified to show that
the dismissal is for lack of subject-matter jurisdiction. In all other respects, we AFFIRM the
dismissal of Sims’s case, and we warn him that he courts sanctions if he persists in these
meritless filings.