MEMORANDUM ORDER

Nathaniel M. Gorton, United States District Judge.

GORTON, J.

Petitioner Lewis has filed, under Fed.R.Civ.P. 59(e), a motion for reconsideration of this Court's Memorandum and Order dated September 6, 2000 which denied Lewis' motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255 (Docket No. 10).

I . Background

On November 24, 1992, a federal grand jury returned an indictment charging Lewis with the following:

(1) being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1),

(2) carrying and using a firearm during and in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1), and

(3) possession with intent to distribute cocaine base in violation of 21 U.S.C. § 841(a)(1) and aiding and abetting.

A jury found Lewis guilty on all three counts on April 2, 1993. On July 9, 1993, he was sentenced by this Court to 322 months of imprisonment and 48 months of supervised release. The First Circuit Court of Appeals affirmed his conviction and his sentence.

On January 5, 2000, Lewis filed a motion pursuant to 28 U.S.C. § 2255 to vacate, set aside or correct his sentence. He alleged that

(1) he was entitled to post-conviction relief based upon a "newly recognized right" established in Bailey v. United States, 516 U.S. 137 (1995), and

(2) his conviction for drug trafficking was inconsistent with the dictates of Commonwealth v. Tripp, 14 Mass. App. Ct. 997 (1982), a Massachusetts state court decision.

In this Court's Memorandum and Order dated September 6, 2000, this Court held that Lewis' first claim was untimely under 28 U.S.C. § 2255(3) because (a) Bailey was decided in December, 1995 and Lewis did not file his § 2255 motion until January, 2000 and (b) Lewis presented no facts to support his alleged innocence under Bailey. With respect to Lewis' second claim, this Court held that Tripp was inapplicable because it was a state court decision interpreting a Massachusetts criminal statute and Lewis was convicted under a federal statute. Lewis' § 2255 motion was ultimately denied.

The instant motion, though styled as a motion to reconsider pursuant to Fed.R.Civ.P. 59(e), does not, in fact, ask this Court to reconsider its rulings on the initial § 2255 motion. Instead, Lewis presents entirely new arguments as to why his conviction and sentence are entitled to review. For this reason, this Court treats the motion as a new motion under § 2255.

In his motion, Lewis claims:

(1) that the government obtained his indictment by suppressing favorable evidence and covering up clear government misconduct in violation of Brady v. Maryland, 373 U.S. 83 (1963), and

(2) various violations of Apprendi v. New Jersey, 120 S.Ct. 2348 (2000), specifically, that the following issues were not submitted to the jury: (a) the type of weapon used, (b) the quantity of drugs involved and (c) "the issue of foreseeability", i.e. whether Lewis had knowledge that a weapon was used during drug trafficking.

II . Discussion

The gatekeeping provision of the Antiterrorism and Effective Death Penalty Act of 1996 (the "AEDPA") 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 considered as a second or successive petition only if a district court reviewed the previous § 2255 petition on its merits. 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)

Lewis' first § 2255 petition was denied on the merits. Thus, the instant petition is a second or successive petition, despite the fact that it raises Apprendi claims that could not have been raised in the first petition which was filed prior to the United States Supreme Court's decision in Apprendi. See Sustache-Rivera v. United States, 221 F.3d 8, 14 (1st Cir. 2000) (noting, without deciding, that several courts of appeal have routinely treated numerically successive § 2555 petitions based upon new Supreme Court decisions as "second or successive" under the AEDPA). See also In re Joshua, 224 F.3d 1281, 1281-1282 (11th Cir. 2000) (regarding numerically successive § 2255 petition based on Apprendi claims as "second or successive")

Because (1) the pending motion to reconsider is a "second or successive petition" within the meaning of the AEDPA and (2) Lewis 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 reconsider and will, therefore, transfer it to that court.

ORDER

For the foregoing reasons, the petitioner's motion for reconsideration of his § 2255 petition (Docket No. 10) is TRANSFERRED to the United States Court of Appeals for the First Circuit pursuant to 28 U.S.C. § 1631.