United States District Court, D. Maine
RECOMMENDED DECISION ON 28 U.S.C. § 2255
C. Nivison U.S. Magistrate Judge
Mitchell Wall has moved, pursuant to 28 U.S.C. § 2255,
to vacate, set aside or correct his sentence. (No.
2:00-cr-00077-GZS, ECF No 110; No. 2:00-cr-00078-GZS, ECF No.
87.) Petitioner has also filed a motion to appoint counsel.
(No. 2:00-cr-00077-GZS, ECF Nos. 110, 111; No.
2:00-cr-00078-GZS, ECF Nos. 87, 88.) Petitioner cites
Johnson v.United States, ___ U.S. ___, 135 S.Ct.
2551 (2015), as the basis for relief.
procedural history of Petitioner's convictions and
sentences, his prior section 2255 motions, and his requests
for leave to file second or successive section 2255 motions
is recounted in the Court's 2015 denial of
Petitioner's previous section 2255 motion. (No.
2:00-cr-00077-GZS, ECF No. 91 (Recommended Decision); ECF No.
102 (Order Affirming). For the sake of brevity, that
procedural history is not repeated here. In 2016, the First
Circuit denied Petitioner's latest application for leave
to file a second or successive petition. Wall v. United
States, No. 15-2349 (1st Cir. Jan. 20, 2016).
virtue of Petitioner's prior successive section 2255
motions, the pending section 2255 motion is also a successive
motion subject to the gatekeeping requirements of 28 U.S.C.
§§ 2244, 2255(h). 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)). A review of
the record reveals no evidence that Petitioner has applied to
the First Circuit for permission and obtained 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 will expire on June 26,
2016, i.e., after Petitioner filed the motion, 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 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).
I deny without prejudice Petitioner's requests for the
appointment of counsel. Petitioner can renew his requests in
this Court should the First Circuit authorize Petitioner to
file a second or successive motion. If this Court adopts this
recommended decision and transfers the matter to the First
Circuit, the denial of Petitioner's motion is also
without prejudice to Petitioner's ability to request, in
accordance with the Federal Rules of Civil Procedure and the
Local Rules of the First Circuit, the appointment of counsel
in the First Circuit.
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 ...