United States District Court, D. Maine
RECOMMENDED DECISION ON 28 U.S.C. § 2255
C. Nivison U.S. Magistrate Judge
Thomas Platt has filed a second or successive motion,
pursuant to 28 U.S.C. § 2255, to vacate, set aside or
correct his sentence. (Motion, ECF No. 95.) Petitioner cites
Johnson v. United States, ___ U.S. ___, 135 S.Ct.
2551 (2015), as the basis for relief, and he requests that
counsel be appointed. (Id. at 1-2.)
filed his first section 2255 motion in 1997; the Court denied
relief on the merits, Platt v. United States, No.
1:97-cv-00183-MAB (D. Me. Dec. 22, 1997) (ECF No. 69), and
the First Circuit denied a certificate of appealability,
United States v. Platt, No. 98-1083 (1st Cir. Feb.
27, 1998) (ECF No. 72). See Bucci v. United States,
809 F.3d 23, 27 (1st Cir. 2015) (noting that a prior petition
that was not decided on the merits may not count as a first
Court lacks jurisdiction to consider a second or successive
section 2255 motion unless the First Circuit has specifically
authorized the Court to consider it. Section 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)). A review of
the record reveals that Petitioner apparently has not applied
to the First Circuit for permission to file the pending
second or successive motion. See 28 U.S.C.
§§ 2244, 2255.
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 First
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.
that Petitioner relies on the Supreme Court’s ruling in
Johnson to support his motion and given that the one
year limitations period for filing Johnson-related
motions might soon expire, transfer is appropriate. 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
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.
 Petitioner was convicted in 1995 of
(1) conspiracy to obstruct commerce by robbery, 18 U.S.C.
§ 1951; (2) robbery, 18 U.S.C. §§ 1951 and 2;
(3) using or carrying a firearm in relation to a crime of
violence, and aiding and abetting the same, 18 U.S.C.
§§ 924(c) and 2; (4) possession of a firearm not
registered to him, 26 U.S.C. §§ 5861(d) and 5871;
and (5) being a felon in possession of firearms, 18 U.S.C.
§§ 922(g)(1), 924(a)(2), 924(e)(1). United
States v. Platt, 85 F.3d 743, 746 (1st Cir. 2006)
(statute sections cited as in opinion). Petitioner was
sentenced to a total prison term of 382 months, to be
followed by a total term ...