August 25, 2014
DELON J. ADAMS, Petitioner,
UNITED STATES OF AMERICA, Respondent
DEFENDANT (1) DELON J ADAMS REPRESENTED BY DELON J ADAMS PRO SE, DAVID J. VAN DYKE, HORNBLOWER, LYNCH, RABASCO & VAN DYKE LEAD ATTORNEY
PLAINTIFF USA REPRESENTED BY RICHARD W. MURPHY, MARGARET D. MCGAUGHEY
RECOMMENDED DECISION ON RULE 60(b) MOTION
JOHN C. NIVISON U.S. MAGISTRATE JUDGE
Petitioner Delon J. Adams has filed a motion seeking to vacate, set aside or correct his sentence. (Motion, ECF No. 66.) Petitioner cites Fed.R.Civ.P. 60(b), but in substance he asks the Court to reopen his prior section 2255 proceeding in this case and vacate his sentence.Petitioner argues that Descamps v. United States, 133 S.Ct. 2276 (2013), applies retroactively to his sentence. (Motion at 1-2.) The Government has responded to the motion, and Petitioner filed a reply in support of the motion. (Response, ECF No. 70; Reply, ECF No. 71.)
Although Petitioner attempts to invoke Fed.R.Civ.P. 60(b), his motion is governed by 28 U.S.C. § 2255. “We hold . . . that a motion made under Rule 60(b) of the Federal Rules of Civil Procedure for relief from a judgment previously entered in a section 2255 case ‘should be treated as a second or successive habeas petition if-and only if-the factual predicate set forth in support of the motion constitutes a direct challenge to the constitutionality of the underlying conviction.’” Munoz v. United States, 331 F.3d 151, 152-53 (1st Cir. 2003) (quoting Rodwell v. Pepe, 324 F.3d 66, 67 (1st Cir. 2003)); see also Trenkler v. United States, 536 F.3d 85, 97 (1st Cir. 2008). Because Petitioner challenges the constitutionality of the underlying conviction, and because Petitioner previously sought relief under section 2255, Petitioner’s motion is a second or successive section 2255 motion and thus subject to the gatekeeping provisions of 28 U.S.C. §§ 2244, 2255(h).
Section 2255(h)(2) provides that “[a] second or successive motion must be certified as provided in section 2244 by a panel of the appropriate court of appeals to contain . . . a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.” Title 28 U.S.C. § 2244(b)(3)(A) states: “Before a second or successive application permitted by this section is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application.” See also First Circuit Local Rule 22.1. The First Circuit has held: “We have interpreted [section 2255(h)] as ‘stripping the district court of jurisdiction over a second or successive habeas petition unless and until the court of appeals has decreed that it may go forward.’” Trenkler, 536 F.3d at 96 (quoting Pratt v. United States, 129 F.3d 54, 57 (1st Cir. 1997)). This Court, therefore, lacks jurisdiction to consider a second or successive section 2255 motion unless the First Circuit has specifically authorized this Court to consider the motion.
In this case, the record contains no evidence, and the Court is not aware of any information to suggest, that the First Circuit has authorized this Court to consider Petitioner’s current motion. Accordingly, the Court should dismiss the motion.
Based on the foregoing analysis, it is recommended that the Court dismiss the motion. It is further recommend that the Court deny a certificate of appealability pursuant to Rule 11 of the Rules Governing Section 2255 Cases, because there is no substantial showing of the denial of a constitutional right within the meaning of 28 U.S.C. § 2253(c)(2).