United States District Court, D. Maine
RECOMMENDED DECISION ON 28 U.S.C. § 2255
C. NIVISON U.S. MAGISTRATE JUDGE
Nicholas Skoby has moved, pursuant to 28 U.S.C. § 2255,
to vacate, set aside or correct his sentence. (Motion, ECF
No. 69.) Petitioner cites Johnson v. United States,
___ U.S. ___, 135 S.Ct. 2551 (2015), as the basis for relief.
(Id. at 1.)
was convicted of interference with commerce by robbery, 18
U.S.C. § 1951 (Count 1); and of using, carrying, or
possessing a firearm in relation to or in furtherance of a
crime of violence, 18 U.S.C. § 924(c)(1)(A) (Count 2).
(Judgment, ECF No. 39 at 1.) The Court sentenced Petitioner
to a term of imprisonment of 57 months on Count 1 and 84
months on Count 2, to be served consecutively for a total
sentence of 141 months, followed by a term of three years of
supervised release on Count 1 and five years on Count 2, to
be served concurrently. (Id. at 2-3.) Petitioner
appealed from the sentence, challenging the 84-month
consecutive sentence on Count 2 on the ground that the Court
erred in finding that Petitioner brandished the weapon; the
First Circuit affirmed the sentence. United States v.
Skoby, No. 12-1633 (1st Cir. June 4, 2013). (ECF No.
filed his first section 2255 motion in 2014. (Motion, ECF No.
51.) The Court denied the motion and denied a certificate of
appealability. (ECF No. 65 (Recommended Decision); ECF No. 67
Petitioner’s prior section 2255 motion, the pending
section 2255 motion is a second or 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.
as Petitioner relies on the Supreme Court’s ruling in
Johnson to support his motion, and given the
one-year limitations period for filing
Johnson-related motions, 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).
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 ...