United States of America v. Maurice Foster, also known as MARCUS

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted August 6, 2010∗
Decided August 11, 2010
Before
FRANK H. EASTERBROOK, Chief Judge
RICHARD A. POSNER, Circuit Judge
DIANE P. WOOD, Circuit Judge
No. 10-2036
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MAURICE FOSTER, also known as MARCUS,
Defendant-Appellant.
Appeal from the United
States District Court for the
Northern District of Illinois,
Eastern Division.
No. 95 CR 242
Robert W. Gettleman, Judge.
Order
Maurice Foster’s conviction and sentence were affirmed on direct appeal, and his
collateral attack under 28 U.S.C. §2255 was unsuccessful. After the Sentencing
Commission reduced the ranges for crack-cocaine offenses, and made that change
retroactive, Foster asked for and received a reduction in his sentence. In January 2009
the district judge cut the term from 360 to 324 months. Foster appealed, contending that
the reduction should have been greater; we affirmed.
∗ This successive appeal has been submitted to the original panel under Operating Procedure 6(b). After
examining the briefs and the record, we have concluded that oral argument is unnecessary. See Fed. R.
App. P. 34(a); Cir. R. 34(f).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1

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No. 10-2036 Page 2
In November 2009 Foster filed a motion, purportedly under Fed. R. Civ. P. 60(b),
contending that the conviction was invalid because the prosecutor did not reveal all
exculpatory information. Rule 60 applies to civil proceedings, and the case in which
Foster filed it was a criminal proceeding. The district judge did not remark on this fact
but denied the motion because the judge thought that Foster was attempting to take
issue with a decision already made by this court. Foster has appealed.
The district judge should have dismissed the motion, not denied it. It was in
substance a new collateral attack, see Gonzalez v. Crosby, 545 U.S. 525 (2005), which is
permissible only if the prisoner has advance appellate permission to file a second or
successive proceeding. A district judge does not have jurisdiction over an unauthorized
successive collateral attack. See Nuñez v. United States, 96 F.3d 990 (7th Cir. 1996). The
decision of the district court is therefore vacated, and the matter is remanded with
instructions to dismiss for lack of jurisdiction.
Foster’s appellate brief contends that the United States Attorney (or perhaps this
court) has erred in the handling of sealed matters in the appellate record. This has
nothing to do with the propriety of the district court’s judgment and at all events is
irrelevant given our disposition.

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