United States of America v. Michael D. Bonty

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted February 3, 2023 *
Decided February 6, 2023
Before
ILANA DIAMOND ROVNER, Circuit Judge
AMY J. ST. EVE, Circuit Judge
THOMAS L. KIRSCH II, Circuit Judge
No. 22-2248
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MICHAEL D. BONTY,
Defendant-Appellant.
Appeal from the United States District
Court for the Southern District of Illinois.
No. 02-CR-30116-SMY
Staci M. Yandle,
Judge.
O R D E R
Michael Bonty, a federal prisoner who has previously collaterally attacked his
sentence, sought to attack it again, this time through a frivolous motion citing Federal
Rule of Civil Procedure 60(b). The district court properly refused to consider the
motion. It was an unauthorized successive collateral attack, which the district court
lacked the power to address. Because Bonty makes no substantial showing that the
* We have agreed to decide this case without oral argument because the appeal is
frivolous. See FED. R. APP. P. 34(a)(2)(A).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with FED. R. A PP. P. 32.1

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No. 22-2248 Page 2
district court erred or that he qualifies for leave to file a successive collateral attack, we
deny a certificate of appealability under 28 U.S.C. § 2253(c), deny authorization to
proceed under § 2255(h), and dismiss this appeal. And because Bonty has ignored our
previous warnings against frivolous filings, we also sanction him.
In 2003, a jury found Bonty guilty of transporting a minor interstate for criminal
sexual activity, tampering with a victim, and illegally possessing ammunition. He was
sentenced to 660 months in prison. After we affirmed his conviction on appeal, Bonty
collaterally attacked his sentence, including through motions under 28 U.S.C. § 2255, all
of which were unsuccessful. Now he has filed a motion for relief citing Rule 60(b) of the
Federal Rules of Civil Procedure. In this latest attack, he argues (as he did previously)
that his counsel was ineffective for failing to contend that his indictment was
constructively enlarged. The district court denied the motion. The court explained that
Rule 60(b) is not a means to raise a challenge to a criminal conviction and that if it
construed his motion under § 2255, it must dismiss the motion as an unauthorized
successive collateral attack. Bonty twice moved to reconsider. The district court denied
both motions for lack of jurisdiction, concluding again that they were unauthorized
successive collateral attacks on Bonty’s sentence.
These rulings were correct. If, as here, a Rule 60(b) motion “is really a successive
postconviction claim,” then the district court must dismiss it for lack of jurisdiction
unless the prisoner first obtained our permission to file the motion. Curry v. United
States, 507 F.3d 603, 604–05 (7th Cir. 2007); see also Gonzalez v. Crosby, 545 U.S. 524, 531
(2005); United States v. Lloyd, 398 F.3d 978, 980 (7th Cir. 2005). The substance, not the
label, of a request for relief controls how a court should treat it. United States v.
Carraway, 478 F.3d 845, 848–49 (7th Cir. 2007). Otherwise, labelling a collateral attack as
a different kind of motion would allow a prisoner to circumvent the jurisdictional
limitation on successive habeas actions. Curry, 507 F.3d at 604–05.
Bonty’s latest post-conviction motions are, in substance, successive
postconviction attacks because they seek to invalidate his conviction based on his
federal claim of ineffective assistance of counsel; therefore, they fall under § 2255.
Gonzalez, 545 U.S. at 531. Because Bonty has already filed a § 2255 motion, he needs
permission from this court to file a successive collateral attack in district court. 28 U.S.C.
§ 2255(h); Carraway, 478 F.3d at 849. He did not seek our permission. Thus, the district
court was correct that it lacked jurisdiction. Id. We construe Smith’s appellate filings as
both an implied request for permission to mount a successive collateral attack, see Lloyd,
398 F.3d at 981, and an implied request for a certificate to appeal the district court’s

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No. 22-2248 Page 3
rulings, see Carraway, 478 F.3d at 849. But we deny those implied requests. Bonty does
not claim to meet the criteria under § 2255(h) for successive collateral attacks (a new,
retroactive rule of constitutional law or newly discovered evidence establishing
innocence). And he does not make a substantial showing that the district court erred in
recognizing his motion as an unauthorized successive collateral attack.
This case is Bonty’s latest attempt to use inventive captioning to evade § 2255(h)
and attempt to attack collaterally without authorization his two-decade-old conviction.
Since his first § 2255 petition, Bonty v. United States, No. 05-cv-0797-MJR (S.D. Ill. Nov. 2,
2005), Bonty has challenged his criminal conviction through: two more § 2255 petitions,
No. 16-cv-0704-MJR (S.D. Ill. June 27, 2016), No. 19-cv-523-SPM (S.D. Ill. May 20, 2019);
a Rule 60(b) motion, No. 05-cv-0797-MJR (S.D. Ill. April 19, 2007); a motion for writ of
prohibition, No. 05-cv-0797-MJR (S.D. Ill. June 14, 2007); one petition for writ of
audita querela, No. 08-cv-652-MJR (S.D. Ill. Sept. 18, 2008); a “motion for permission to
show evidence lawyer was in fact ineffective in advising of right to further appeal after
direct appeal”, No. 05-cv-0797-MJR (S.D. Ill. June 13, 2013); one petition for writ of error
coram nobis, No. 02-cr-30116-SMY (S.D. Ill. March 29, 2017); three § 2255(h)
applications, No. 16-2522 (7th Cir. June 17, 2016); In re Bonty, No. 17-2413 (7th Cir. July
12, 2017); No. 18-1495 (7th Cir. March 2, 2018); one petition to “recall the mandate,”
United States v. Bonty, No. 03-3244 (7th Cir. Jan. 14, 2019); one petition for the
extraordinary writ of error, No. 19-cv-523-SPM (S.D. Ill. July 19, 2021); and finally the
purported Rule 60(b) motion and motions for reconsideration now on appeal. All
attempts were rejected.
We twice warned Bonty—first, in 2018, No. 18-1495 (7th Cir. March 9, 2018), and
again in 2019, No. 03-3244 (7th Cir. Jan. 17, 2019)—that frivolous filings risked monetary
sanctions and a filing bar. We make good on that warning and fine Bonty $500. Until he
pays that sum to the Clerk of this court, any collateral attack on his 2003 conviction and
resulting sentence that he submits to any federal court of this circuit will be returned
unfiled. Any applications for leave to file successive collateral attacks on this conviction
and sentence will be deemed denied 30 days after filing unless the court orders
otherwise. See Alexander v. United States, 121 F.3d 312 (7th Cir. 1997).
We DISMISS the appeal from the district court’s judgment, DENY any implied
requests for a certification of appealability and for permission to bring a successive
collateral attack, and SANCTION Bonty with a fine of $500.

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