Opinion
09 Civ. 05554 (JSR) (KNF).
October 26, 2009
REPORT and RECOMMENDATION
TO THE HONORABLE JED S. RAKOFF, UNITED STATES DISTRICT JUDGE
I. INTRODUCTION
Leonard Johnson ("Johnson" or "the petitioner"), proceeding pro se, moves, pursuant to 28 U.S.C. § 2255 ("§ 2255"), to vacate, set aside, or correct his sentence, as set forth in the October 2, 2000 judgment of conviction entered against him, for a single count of: (1) bank robbery, pursuant to 18 U.S.C. § 2113(a) ("count one"); (2) armed bank robbery, pursuant to 18 U.S.C. § 2113(b) ("count two"); and (3) using or carrying a firearm during and in relation to a crime of violence, pursuant to 18 U.S.C. § 924(c) ("count three"). In his motion, Johnson raises the following claims: (1) dismissing "count one for double jeopardy was illegally incorrect," (2) "count one is a defective indictment count," (3) he was denied a fair trial, and (4) counsel provided ineffective assistance to him during the pre-trial, trial and sentencing phases of the criminal action. Johnson indicates he did not raise these claims previously, "due to ineffective assistance of counsel."
Through a Summary Order, the United States Court of Appeals for the Second Circuit modified the judgment, by vacating the conviction under 18 U.S.C. § 2113(a). See Johnson v. United States, 293 Fed. Appx. 789 (2d Cir. 2008).
II. BACKGROUND AND PROCEDURAL HISTORY
After the judgment of conviction was entered, on October 2, 2000, Johnson filed a notice of appeal to the United States Court of Appeals for the Second Circuit. In November 2001, the Second Circuit Court of Appeals affirmed Johnson's judgment of conviction.
In December 2002, Johnson filed, in this court, a motion, pursuant to 28 U.S.C. § 2255, to vacate, set aside, or correct his sentence, as set forth in the October 2, 2000 judgment of conviction entered against him. Through that motion, Johnson asserted his trial counsel provided ineffective assistance to him. In June 2006, a report and recommendation prepared by the Honorable Frank Maas was filed, analyzing the merits of Johnson's claim, and recommending that Johnson's motion to vacate be denied. Johnson filed objections to the report and recommendation, in which he raised, for the first time, a double jeopardy claim. In August 2006, your Honor adopted the report and recommendation, held that Johnson's double jeopardy claim was "entirely without merit" and dismissed the motion to vacate, with prejudice. Johnson filed an appeal from the dismissal of his motion and, as noted above, in September 2008, the Second Circuit Court of Appeals modified the judgment to vacate Johnson's conviction for violating 18 U.S.C. § 2113(a), and affirmed the judgment, as modified.
In June 2009, the petitioner filed the instant motion, seeking to vacate the modified judgment of conviction.
III. DISCUSSION
According to the Anti-Terrorism and Effective Death Penalty Act, before a district court may entertain a second or successive § 2255 motion, the movant must first obtain from "a panel of the appropriate court of appeals" an order authorizing consideration of the second or successive motion. See 28 U.S.C. § 2255(h); see also Corrao v. United States, 152 F.3d 188, 190 (2d Cir. 1998). A § 2255 motion is regarded as second or successive when an adjudication, on the merits, of a prior § 2255 motion, challenging the same conviction, has occurred. See id. at 191. "This remains true even if the latter petition purports to raise new claims." Id.
The instant § 2255 motion is a second or successive motion, because Johnson's December 2002 § 2255 motion sought to upset the same conviction being challenged now, through his June 2009 § 2255 motion, and his first § 2255 motion was denied on the merits. See, e.g., Liriano v. United States, 95 F.3d 119, 122 (2d Cir. 1996). "[W]hen a second or successive petition for habeas corpus relief or § 2255 motion is filed in a district court without the authorization by [the appropriate court of appeals] that is mandated by [28 U.S.C.] § 2244(b)(3), the district court should transfer the petition or motion to th[e] [appropriate court of appeals] in the interest of justice pursuant to [28 U.S.C.] § 1631." Id. at 123. Accordingly, Johnson's § 2255 motion, which is a second or successive motion, should be transferred to the United States Court of Appeals for the Second Circuit.
IV. RECOMMENDATION
For the reasons set forth above, I recommend that Johnson's motion, made pursuant to 28 U.S.C. § 2255, be transferred to the United States Court of Appeals for the Second Circuit, as a second or successive § 2255 motion, in the interest of justice.
V. FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Jed S. Rakoff, 500 Pearl Street, Room 1340, New York, New York, 10007, and to the chambers of the undersigned, 40 Foley Square, Room 540, New York, New York, 10007. Any requests for an extension of time for filing objections must be directed to Judge Rakoff. FAILURE TO FILE OBJECTIONS WITHIN TEN (10) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).