151 F. 3d 1033 - McCall v. United States of America
151 F3d 1033 McCall v. United States of America
151 F.3d 1033
Alzena MCCALL, Petitioner-Appellant,
v.
UNITED STATES OF AMERICA, Respondent-Appellee.
No. 97-3316.
United States Court of Appeals, Seventh Circuit.
Submitted Aug. 10, 1998.
Decided Aug. 10, 1998.
NOTICE: Seventh Circuit Rule 53(b)(2) states unpublished orders shall not be cited or used as precedent except to support a claim of res judicata, collateral estoppel or law of the case in any federal court within the circuit.
Appeal from the United States District Court for the Southern District of Illinois, Benton Division. No. 95 CR 40030.
Before Hon. WALTER J. CUMMINGS, Hon. ILANA DIAMOND ROVNER, Hon. DIANE P. WOOD, Circuit Judges.
GILBERT, Chief Judge.
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Alzena McCall filed a "Motion to Correct Sentence," purporting to bring the motion pursuant to Rule 60(b) of the Federal Rules of Civil Procedure. The district court denied McCall's motion on the merits and she appealed. The district court subsuqently issued another order recognizing that McCall's motion to correct sentence should have been treated as a motion to vacate, set aside, or correct her sentence pursuant to 28 U.S.C. § 2255.
As the district court recognized, the court should have construed McCall's motion as a § 2255 motion. Accordingly, we deny McCall's motion for leave to proceed in forma pauperis and motion for appointment of counsel as unnecessary. We vacate the district court judgment and REMAND the action to the district court for reconsideration of McCall's motion as a § 2255 motion. We caution McCall that should she choose to proceed with this action in district court, she will not be permitted to file any future § 2255 motions unless she is able to comply with the requirements of 28 U.S .C. § 2255 for bringing successive § 2255 motions and is granted permission from this court.