United States District Court, D. Maine
RECOMMENDED DECISION ON 28 U.S.C. § 2255
C. Nivison U.S. Magistrate Judge.
Eugene Erwin Allen, Jr., has moved, pursuant to 28 U.S.C.
§ 2255, to vacate, set aside or correct his
sentence. (Motion, ECF No 75.) Petitioner has also
filed a motion to amend his section 2255 motion. (ECF No.
91.) In Ground One of the section 2255 motion, Petitioner
cites Johnson v. United States, ___ U.S. ___, 135
S.Ct. 2551 (2015), as the basis for relief; in Ground Two,
Petitioner focuses on his plea; and through his motion to
amend, Petitioner seeks to provide additional information
regarding his prior convictions.
section 2255 motion is a second or successive motion;
Petitioner’s first section 2255 motion is docketed at
Allen v. United States, No. 1:07-cv-00039-JAW. The
pending motion concerns the same underlying criminal judgment
as the first, which was decided against Petitioner on the
accordance with 28 U.S.C. § 2255(h), Petitioner has also
filed an application in the First Circuit for permission to
file a second or successive section 2255 motion. Allen v.
United States, No. 16-1456 (1st Cir. Apr. 25, 2016). The
application is apparently pending; this Court has not
received an order from the First Circuit authorizing
Petitioner to proceed on the motion in this Court.
Court lacks jurisdiction to consider a second or successive
section 2255 motion unless the First Circuit has specifically
authorized the Court to consider it. Title 28 U.S.C. §
2244 applies to second or successive section 2255 motions,
pursuant to section 2255(h). Section 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 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 v. United States,
536 F.3d 85, 96 (1st Cir. 2008) (quoting Pratt v. United
States, 129 F.3d 54, 57 (1st Cir. 1997)).
the record lacks any evidence that the First Circuit has
authorized Petitioner to proceed on the pending motion, the
Court is without jurisdiction to consider the merits of the
motion. First Circuit Rule 22.1(e) provides that if a second
or successive section 2255 petition is filed in the district
court without the required authorization from the Circuit,
the district court “will transfer the petition to the
court of appeals pursuant to 28 U.S.C. § 1631 or dismiss
the petition.”The issue, therefore, is whether the Court
should dismiss or transfer the matter.
Petitioner has evidently filed a request with the First
Circuit for permission to proceed on a second or successive
section 2255 motion, transfer is more appropriate to allow
the First Circuit to consider all of Petitioner’s
submissions related to his claim. See United States v.
Barrett, 178 F.3d 34, 41 n.1 (1st Cir. 1999) (holding
that transfer is not mandated, but noting “that
transfer may be preferable in some situations in order to
deal with statute of limitations problems or certificate of
appealability issues”); In re Watkins, 810
F.3d 375, 378 (6th Cir. 2015) (noting that the district court
had transferred to the circuit court, pursuant to section
1631, a second or successive section 2255 motion containing a
claim under Johnson, 135 S.Ct. 2551, for the circuit
court to consider whether to authorize the motion as a second
or successive section 2255 motion).
on the foregoing analysis, I recommend the Court transfer the
pending section 2255 motion to the First Circuit, pursuant to
28 U.S.C. § 1631 and First Circuit Rule 22.1(e). I
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).
may file objections to those specified portions of a
magistrate judge’s report or proposed findings or
recommended decisions entered pursuant to 28 U.S.C.
636(b)(1)(B) for which de novo review by the
district court is sought, together with a supporting
memorandum, within fourteen (14) days of being served with a
copy thereof. A responsive memorandum shall be filed within
fourteen (14) days after the filing of the objection.
to file a timely objection shall constitute a waiver of the
right to de novo review by the district court and to
appeal the district court's order.