Free Order on Motion for Order - District Court of Colorado - Colorado

Case 1:01-cr-00395-RPM

Document 580

Filed 08/21/2008

Page 1 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Senior District Judge Richard P. Matsch Civil Action No. 06-cv-01433-RPM (Criminal Case No. 01-cr-00395-RPM) UNITED STATES OF AMERICA, Plaintiff/Respondent, v. JAMES FLOYD CLEAVER, Defendant/Movant. __________________________________________________________________ ORDER STRIKING RULE 60(b)(6) MOTION __________________________________________________________________ On August 4, 2008, James Floyd Cleaver filed with the Clerk of this court a pleading designated as a motion pursuant to Fed.R.Civ.P. 60(b)(6), challenging this Court's order of July 25, 2006, denying his motion under 28 U.S.C. § 2255 challenging his conviction by a jury verdict entered August 4, 2003, and subsequent sentence. In this new motion, Mr. Cleaver asserts a denial of procedural due process because the order entered before he had an opportunity to reply to the government's response to his motion. The record reflects that after the entry of the order of July 25, 2006, Mr. Cleaver filed a motion to amend his petition and a motion to alter or amend the judgment. These motions were denied by order of December 5, 2006. Mr. Cleaver filed a motion for new trial on November 29, 2007, which this Court dismissed on January 7, 2008, as a second or successive motion under § 2255 which must be first presented by motion to the Tenth Circuit Court of Appeals. That court had previously on May 30, 2007, denied Mr. Cleaver's request for a certificate of appealability of this Court's order denying the motion under 28 U.S.C. § 2255.

Case 1:01-cr-00395-RPM

Document 580

Filed 08/21/2008

Page 2 of 3

Rule 69(b)(6) has no applicability in this matter and Mr. Cleaver's contentions are without any merit. Accordingly, it is ORDERED that the pleading filed August 4, 2008, is stricken. DATED: August 21st, 2008 BY THE COURT: s/Richard P. Matsch ___________________________ Richard P. Matsch, Senior Judge

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Case 1:01-cr-00395-RPM

Document 580

Filed 08/21/2008

Page 3 of 3

Certificate of Mailing

I hereby certify that on August 21, 2008, a copy of the foregoing order entered by Senior Judge Richard P. Matsch on August 21, 2008, was mailed via U. S. Mail to the following:

James F. Cleaver Reg. No. 30701-013 U. S. Penitentiary P. O. Box 1000 Leavenworth, Kansas 66048 GREGORY C. LANGHAM, Clerk s/M. V. Wentz

By_________________________ Deputy

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