Corso v. U.S.

Full title: Anthony J. Corso, Petitioner, v. United States of America, Respondent

Court: United States District Court, D. Massachusetts

Date published: Nov 13, 2000

Civil Action No. 97-11075-NMG (D. Mass. Nov. 13, 2000)

Opinion

Civil Action No. 97-11075-NMG

November 13, 2000

MEMORANDUM AND ORDER

NATHANIEL M. GORTON, U.S. District Judge.

Pending before this Court is the motion of the petitioner, Anthony J. Corso ("Corso") to re-open his motion to vacate his sentence under 28 U.S.C. § 2255 (Docket No. 11).

I. Background

On April 3, 1997, Corso filed his first § 2255 petition (Docket No. 1) alleging, inter alia, that his federal guilty plea was obtained unlawfully. This Court denied that petition on all grounds in a Memorandum and Order entered on November 10, 1997 (Docket No. 9).

On October 5, 2000, Corso filed the instant motion seeking reconsideration of his first § 2255 petition. He claims to have discovered new evidence supporting the contention that his federal guilty plea was obtained unlawfully.

II. Discussion

The gatekeeping provision of the Antiterrorism and Effective Death Penalty Act of 1996 requires a petitioner to apply to the appropriate court of appeals for permission to file a "second or successive" § 2255 petition in the district court. 28 U.S.C. § 2244(b)(3)(A) (as incorporated in 28 U.S.C. § 2255); Pratt v. United States, 129 F.3d 54, 57 (1st Cir. 1997). A petition for relief under § 2255 should be treated as a second or successive petition only if a district court reviewed the previous § 2255 petition on its merits. Stewart v. Martinez-Villareal, 523 U.S. 637, 644-45 (1998). A district court lacks subject matter jurisdiction to entertain an unapproved second or successive § 2255 petition and must either dismiss it or transfer it to the appropriate court of appeals. United States v. Barrett, 178 F.3d 34, 41 (1st Cir. 1999).

Corso's first § 2255 petition was denied on the merits and thus the instant petition is a second or successive petition. Because Corso has failed to obtain permission from the First Circuit Court of Appeals to file such a petition, this Court lacks jurisdiction over his motion to re-open and will, therefore, transfer it to that court.

Order

For the foregoing reasons, the petitioner's motion to re-open consideration of his § 2255 petition (Docket No. 11) is TRANSFERRED to the United States Court of Appeals for the First Circuit pursuant to 28 U.S.C. § 1631.

So ordered