Summary
noting a previous adjudication of a motion for a COA after habeas relief denied
Summary of this case from Coleman v. U.S.Opinion
01-CV-1969.
March 12, 2002.
JACK J. MINICONE, JR., Petitioner pro se, Federal Correctional Institution, Otisville, NY.
EDWARD R. BROTON, AUSA, HON. JOSEPH A. PAVONE, United States Attorney for the Northern District of New York Attorney for Respondent, Syracuse, New York.
MEMORANDUM DECISION AND ORDER
On April 11, 1997, petitioner filed his first § 2255 petition contending that the sentence he was given on December 22, 1994, was excessive. In a Memorandum Decision and Order entered July 8, 1997, this court denied the petition on the merits holding that he was procedurally barred from asserting that his sentence violated the Double Jeopardy Clause,(a prior procedural default is a disposition on the merits) Carter v. United States, 150 F.3d 202, 205 (2d Cir. 1998) and, alternatively, even if there was no bar to his § 2255 petition, it was without merit. This court denied Petitioner's motion seeking a Certificate of Appealability for the denial of his § 2255 petition in an Order entered August 26, 1997.
On December 21, 2001, petitioner filed the instant motion seeking re-sentencing on the grounds that the ineffectiveness of his counsel at sentencing caused the sentence petitioner received to be based on the application of incorrect and non-applicable sentencing guidelines. The gatekeeping provision of the Antiterrorism and Effective Death Penalty Act of 1996 ("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); Liriano v. United States, 9 F.3d 119, 122-23 (2d Cir. 1996). A district court that decides a second or successive petition on the merits rather than transferring it, "impermissibly circumvents the AEDPA's gatekeeping provisions." Corraro v. United States, 152 F.3d 188, 191 (2d Cir. 1998). It is important in the Second Circuit that courts follow "a clear and comprehensive procedure" for handling second or successive § 2255 petitions, Liriano, 95 F.3d at 123.
A petition for relief under § 2255 should be treated as a second or successive petition if a prior § 2255 petition, raising claims regarding the same conviction or sentence, has been denied on the merits by the district court. Martinez-Villareal, 523 U.S. 637, 644-45, 118 S.Ct. 1618, 1622, 140 L.Ed.2d 849 (1998). This remains true even if the later petition purports to raise new claims. Triestman v. United States, 124 F.3d 361, 369 (2d Cir. 1997). A district court lacks subject matter jurisdiction to entertain an unapproved second or successive § 2255 motion and must either dismiss it or transfer it to the appropriate court of appeals. Lariano, 95 F.3d at 122-23.
Petitioner's first § 2255 petition was denied on the merits and thus the instant petition is a second or successive petition . . . Because petitioner has failed to obtain permission from the Second Circuit Court of Appeals to file such a petition, this court lacks jurisdiction over his motion and will, therefore, transfer it to that court.
Accordingly, the petitioner's current § 2255 motion is TRANSFERRED to the Second Circuit Court of Appeals pursuant to 28 U.S.C. § 1631.
IT IS SO ORDERED