United States District Court, D. Maine
RECOMMENDED DECISION ON 28 U.S.C. § 2255
C. Nivison U.S. Magistrate Judge
Vodie Goodman, also known as Rick, 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.
79.) Petitioner cites Johnson v. United States, ___
U.S. ___, 135 S.Ct. 2551 (2015), as one of his bases for
relief. (Motion at 13.)
was convicted in 2007 of multiple counts of drug and firearms
charges.(Judgment, ECF No. 37 at 1-2.) The Court
sentenced Petitioner to a total prison term of 322 months.
(Id. at 3.) Petitioner appealed from the sentence,
and the First Circuit affirmed. (United States v.
Goodman, No. 07-2750 (1st Cir. Mar. 26, 2009), ECF No.
50.) The United States Supreme Court denied his petition for
a writ of certiorari. Goodman v. United States, 130
S.Ct. 185 (2009).
October 2010, Petitioner filed a section 2255 motion. (ECF
No. 61.) The Court denied Petitioner’s request for
counsel and denied relief. (Recommended Decision, ECF No. 63;
Order Affirming, ECF No. 66.) The First Circuit interpreted
Petitioner’s notice of appeal of the denial of his
section 2255 motion as a motion for a certificate of
appealability, and the Court denied the motion on the basis
that Petitioner failed to demonstrate a
"‘substantial showing of the denial of a
constitutional right.’" (Goodman v. United
States, No. 10-2489 (1st Cir. Feb. 22, 2011) (quoting 28
U.S.C. § 2253(c)(2)), ECF No. 73.)
2012, Petitioner filed an application in the First Circuit
for permission to file a second or successive section 2255
petition; the First Circuit denied the application.
(Goodman v. United States, No. 12-1483 (1st Cir. May
14, 2012), ECF No. 75.) On May 16, 2016, Petitioner filed a
second or successive section 2255 motion. (Motion, ECF No.
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 ...