Opinion
03-CR-01198
11-13-2012
FRANKLIN B. GIL-REYES, Petitioner, v. UNITED STATES OF AMERICA, Defendant.
NOT FOR PUBLICATION
ORDER
JOHN GLEESON, United States District Judge:
On October 22, 2012, Petitioner Franklin B. Gil-Reyes filed the instant pro se motion in his criminal case, which purports to be a motion pursuant to 28 U.S.C. § 2255 ("§ 2255"). A petitioner may not receive review of a second or successive habeas petition unless he has first received permission from the Court of Appeals to do so. 28 U.S.C. § 2244(b)(3)(A). To the extent Gil-Reyes seeks to challenge the sentence imposed, I find that this is a second § 2255 petition. See Gil-Reyes v. United States, No. 10 Civ 5310 (filed Nov. 12, 2010, denying habeas relief on May 5, 2011). Accordingly, I transfer this portion of his motion to the Second Circuit in the interest of justice. Liriano v. United States, 95 F.3d 119, 123 (2d Cir. 1996) (per curiam).
In the instant motion, Gil-Reyes also alleges that he is being deprived of rights secured by the Equal Protection Clause of the federal Constitution by his exclusion - solely on account of his alienage - from "benefits and privileges" allegedly reserved for United States citizens, including a "one year reduction of sentence through a drug program" and a "Unicor job." With respect to this issue, the United States is directed to respond in writing on or before December 10, 2012 specifically addressing whether such a constitutional claim is properly brought in this district; and, assuming this is the proper forum, the merits of the allegation. Gil-Reyes is directed to respond to the government by January 10, 2013.
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JOHN GLEESON, U.S.D.J.
Dated: November 13, 2012
Brooklyn, New York