JAMES MOODY JR., District Judge
THIS CAUSE is before the Court upon the petition of Fermin Alberto Garcia (hereinafter "Petitioner" or "Garcia") for a "Writ of Audita Quarela Pursuant to 28 U.S.C. § 1651" (Dkt. #118). In support, Petitioner argues:
1. "The Court violated the Grand Jury Clause of the 5th Amendment to U.S. Constitution in that a constructive amendment to indictment and/or variance occurred since crimes indicted and pled were not only the factor/facts used to sentence rather additional enhancement of 2 point . . . captain role — was added."
2. "Further, I instructed the lawyer/defense counsel to appeal the sentence and conviction, Mr. Todd Seiden, however, did not file a timely appeal on my behalf, the lawyer abandoned me."
The grounds raised by Petitioner are controlled by 28 U.S.C. § 2255. The appropriate motion is one to vacate the sentence pursuant to § 2255. That section cannot be circumvented by trying to raise the issues in some other guise. In fact, Petitioner has previously filed a § 2255 motion (Dkt. #104) with this Court, which was denied as time barred. Even so, the Order (Dkt. #108) did explain why the first ground raised above (which was also raised in his time barred § 2255 motion) was groundless.
The present petition is nothing more than a successive § 2255 motion under a different label. This petition, like Petitioner's former § 2255 Petition, is time barred. Petitioner had until July 12, 2005, to timely file a § 2255 petition and did not file this petition until October 30, 2006.
Therefore, Petitioner's motion (Dkt. #118) will be and is hereby DENIED.
DONE and
ORDERED.