(1) newly discovered evidence that, if proven
and viewed in light of the evidence as a whole,
would be sufficient to establish by clear and
convincing evidence that no reasonable factfinder
would have found the movant guilty of the offense;
or
(2) a new rule of constitutional law, made
retroactive to cases on collateral review by the
Supreme Court, that was previously unavailable.
As mandated by Section 2244(b), which is incorporated by
reference via the just-quoted portion of Section 2255, this Court
cannot entertain Fryer's current application unless, upon his
application to our Court of Appeals, that Court were to authorize
this Court to do so. Accordingly Fryer's current filing and this

action are dismissed, albeit without prejudice to the potential

reassertion of his motion if the Court of Appeals so directs.‘

Wh Mee Grad

Milton I. Shadur
Senior United States District Judge

Date: January 23, 2003

4 In light of the statutorily required dismissal that has

been reflected here, this Court makes no substantive comment as
to the timeliness or any other aspect of Fryer's filing.

3



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United States District Court, Northern District of Illinois

Naf Assign 1 iti re if
‘yf a sn Sade Milton I, Shadur “than signed Sudge
case NUMBER 03 C 295 DATE 1/24/2003
CASE USA vs. Eddie Lee Fryer
TITLE

[In the following box (a) indicate the party filing the motion, ¢.g,, plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
of the motion being presented.]

MOTION:

DOCKET ENTRY:

ql) oO Filed motion of [ use listing in “Motion” box above.]

(2) a Brief in support of motion due

(3) a Answer brief to motion due___._ Reply to answer brief due

(4) Bb Ruling/Hearingon_____—set for__—_at

(5) im Status hearing[held/continued to] [set for/re-set for] on__——s set ffor_ att

(6) a Pretrial conference[held/continued to] [set for/re-set for]on___—ssetfor_——s at.
(7) oO Trial[set for/re-set for]on__ at

(8) oO [Bench/Jury trial] [Hearing] held/continued to__at

(9) QO This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

OFRCP4(m) (OC Local Rule 41.1 CFRCP41(a)(1) O FRCP41(a)(2).

(10) a [Other docket entry] | Enter Memorandum Opinion and Order. As mandated by Section 2244(b),
which is incorporated by reference via the just-quoted portion of Section 2255, this court cannot entertain
Fryer’s current application unless, upon his application to our Court of Appeals, that Court were to
authorize this Court to do so. Accordingly Fryer’s current filing and this action are dismissed, albeit
without prejudice to the potential reassertion of his motion if the Court of appeals so directs.

(1) @f [For further detail see order attached to the original minute order.}
No notices required, advised in open court. Document
7 . Number
No notices required vuumbe of pts ;
Y | Notices mailed by judge’s staff. JAl
Notified counsel by telephone. Dronel

Docketing to mail notices.

Mail AO 450 form.

docketing deny inicinls

Copy to judge/magistrate judge.

frss2003

date mailed notice
courtroom

SN deputy’s
initials

SN

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central Clerk's Office sailing deputy iin



IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

UNITED STATES OF AMERICA,
Plaintiff,

(90 CR 57-1)

)
)
)
)
v. ) No. 03 C 295
)
EDDIE LEE FRYER,?+ )
)
)

Defendant.
MEMORANDUM OPINION AND ORDER
Fully a dozen years after his trial, conviction and

sentencing for a series of armed bank robberies (coupled with
associated gun charges), Eddie Lee Fryer (“Fryer”) has filed with
the United States District Court for the Western District of
Virginia (where he is now in custody) a document that he labels
as having been brought under 28 U.S.C. §2241,? through which he
again seeks to launch a collateral attack on the long-ago-
terminated criminal proceedings. That most recent filing has in
turn been transferred to this District Court on the accurate
premise that it is really a Section 2255 motion, and it has

automatically been assigned to this Court's calendar because this

1 Because the filing in this action was misperceived by

movant Eddie Lee Fryer as a habeas petition (this is not said
critically, for it was filed pro se), it was mistakenly captioned
“Eddie Lee Fryer, Petitioner, v. United States of America,
Respondent.” But as the text explains, the appropriate
characterization is that of a post-conviction motion in the
original underlying criminal case, so the caption here reflects
that.

2? All further references to Title 28's provisions will
simply take the form “Section--.”



Court had presided over Fryer's trial and had imposed the lengthy
sentence that he is now serving (see Rule 4(a) of the Rules
Governing Section 2255 Proceedings for the United States District
Courts) .

For a number of years after the initial proceedings and
after the affirmance on direct appeal of his conviction and
sentence by our Court of Appeals (974 F.2d 813 (7 Cir. 1992))
Fryer was an active post-conviction litigant, necessitating this
Court's issuance of a whole series of published and unpublished
opinions dealing with the several challenges that he sought to
advance. But what is most relevant--indeed, critical--for
present purposes is that this Court's detailed opinion and
supplement reported at 21 F.Supp.2d 834 (N.D. Ill. 1998) dealt
with and rejected Fryer's original Section 2255 motion, by which
he had disputed both his conviction and the ensuing sentence.?

That being the case, Fryer's present effort unquestionably
constitutes a “second or successive motion” to which the last
paragraph of Section 2255 applies:

A second or successive motion must be certified as

provided in section 2244 by a panel of the appropriate
court of appeals to contain--

3 Although this makes no difference in either the analysis

or the result reached in this opinion, both of which are
compelled by the statutory mandate discussed in the ensuing text,
it may be noted parenthetically that this Court took pains to
appoint an outstanding lawyer, a partner in one of Chicago's
leading law firms, to represent Fryer pro bono publico in his
original Section 2255 proceeding.

2