Opinion
09 CV 3817 (SJ).
September 21, 2009
MEMORANDUM AND ORDER
Pro se petitioner Olabode Fashewe brings the instant pro se motion challenging his 1997 conviction and sentence entered in this Court. Since Petitioner has already filed a prior motion under 28 U.S.C. § 2255 ("§ 2255") challenging the same conviction, this Court cannot consider the instant petition. The petition is hereby transferred to the United States Court of Appeals for the Second Circuit, pursuant to 28 U.S.C. § 1631.
BACKGROUND
Petitioner was indicted in this Court on April 2, 1996 on two counts of conspiracy to distribute controlled substances. United States v. Fashewe, No. 96 CR 0272 (SJ) (E.D.N.Y.) His trial commenced on November 4, 1996. On November 13, 1996, after the jury was sworn and testimony had begun, petitioner entered a guilty plea. Thereafter, petitioner moved to withdraw the plea, but the motion was denied. United States v. Fashewe, 1997 WL 55971 (E.D.N.Y. Feb. 3, 1997). The Court sentenced petitioner to 188 months imprisonment on April 10, 1997, and judgment was entered on April 25, 1997. Petitioner appealed his conviction to the United States Court of Appeals for the Second Circuit, which affirmed the judgment on May 07, 1998. United States v. Fashewe, 152 F.3d 921, 1998 WL 382603 (2d Cir. May 07, 1998). The Supreme Court of the United States denied a writ of certiorari on October 19, 1998. Fashewe v. United States, 525 U.S. 954 (1998).
On October 25, 1999, petitioner filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2255, which was denied by this Court on June 20, 2002. Fashewe v. United States, No. 99 CV 6857 (SJ), 2002 WL 32096579 (E.D.N.Y. June 20, 2002). The Second Circuit dismissed the appeal on February 14, 2003. Fashewe v. United States, No. 02-2528 (2d Cir. Feb. 14, 2003) (issued as mandate). Thereafter, petitioner filed a motion to vacate pursuant to Rule 60(b) of the Federal Rules of Civil Procedure, which this Court denied on September 19, 2005. Fashewe v. United States, 2005 WL 2645002 (E.D.N.Y. Sep 19, 2005). The Second Circuit again dismissed the appeal, Fashewe v. United States, No. 05-5381-pr, slip op. (2d Cir. Aug. 14, 2007) (issued as mandate), and the United States Supreme Court denied a writ of certiorari on April 6, 2009. Fashewe v. United States, 129 S.Ct. 1924 (2009).
Petitioner filed the instant "Motion to vacate sentence, conviction and dismiss the indictment," ostensibly pursuant to Rule 12(b)(2) of the Federal Rules of Civil Procedure, on the alleged ground that this Court did not have jurisdiction over his criminal case.
DISCUSSION
"A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, . . . may move the court which imposed the sentence to vacate, set aside or correct the sentence." 28 U.S.C. § 2255. "As a general rule, when collaterally attacking a sentence on the ground that he was convicted in violation of the Constitution or federal law, a federal prisoner must use § 2255." Roccisano v. Menifee, 293 F.3d 51, 57 (2d Cir. 2002) (internal quotations marks and citations omitted). However, § 2255 contains several gatekeeping provisions, including strict requirements for bringing successive petitions.
A second or successive motion must be certified as provided in section 2244 by a panel of the appropriate court of appeals to contain (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.28 U.S.C. § 2255. Thus, only the Court of Appeals, and not the District Court, may certify whether a second or successive petition "presents a claim not previously raised that is sufficient to meet § 2244(b)(2)'s new-rule or actual-innocence provisions." Gonzalez v. Crosby, 545 U.S. 524, 530 (2005).
The Second Circuit has stated that district courts should not recharacterize a motion purportedly made under some other rule as a motion made under § 2255 unless the petitioner receives notice and an opportunity to withdraw. See Adams v. United States, 155 F.3d 582, 584 (2d Cir. 1998); accord Castro v. United States, 540 U.S. 375, 383 (2003) (limiting recharacterization of a pro se litigant's first § 2255 motion. However, since petitioner has already challenged this conviction by filing a prior motion for relief under 28 U.S.C. § 2255, the Court need not give petitioner notice and the opportunity to withdraw the instant motion.Jiminian v. Nash, 245 F.3d 144, 148 (2d Cir. 2001).
Accordingly, in the interest of justice, the Clerk of Court shall transfer this motion to the United States Court of Appeals for the Second Circuit pursuant to 28 U.S.C. § 1631. See Liriano v. United States, 95 F.3d 119 (2d Cir. 1996) ( per curiam). This order closes this case. If the Second Circuit authorizes petitioner to proceed in this matter, he shall move to reopen under this docket number.
SO ORDERED.