United States District Court, D. Maine
RECOMMENDED DECISION ON 28 U.S.C. § 2255
C. Nivison, U.S. Magistrate Judge.
Ronald Evans has moved, pursuant to 28 U.S.C. § 2255, to
vacate, set aside or correct his sentence. (Motion, ECF No.
49.) Petitioner cites Johnson v. United States, __
U.S. __, 135 S.Ct. 2551 (2015), as one of his bases for
relief; he also requests relief under a 2016 amendment to the
sentencing guidelines. (Motion at 1, 6.)
pled guilty to possession with intent to distribute five
grams or more of cocaine base, 21 U.S.C. § 841(a)(1).
(United States v. Evans, No. 03-2201 (1st Cir. Dec.
22, 2004).) The Court sentenced Petitioner to a term of 270
months of imprisonment, to be served concurrently with
another sentence, followed by a term of eight years of
supervised release. (Judgment, ECF No. 33.) Petitioner
appealed from the sentence, and the First Circuit affirmed.
(Evans, No. 03-2201 (1st Cir. Dec. 22, 2004).) The
Supreme Court vacated the First Circuit’s judgment and
remanded the case “for further consideration in light
of United States v. Booker, ” 543 U.S. 220
(2005). (Evans v. United States, No. 04-8041 (U.S.
Feb. 28, 2005).) Following supplemental briefing, the First
Circuit summarily affirmed Petitioner’s sentence.
(Evans, No. 03-2201 (1st Cir. July 21, 2005).) The
First Circuit docket reflects that in October 2005, the
Supreme Court denied Petitioner’s petition for a writ
filed his first section 2255 motion in 2006. (Evans v.
United States, No. 1:06-cv-00120-GZS, Motion, ECF No.
1.) In that motion, Petitioner asserted a claim of
ineffective assistance of counsel. (Id. at 4.) The
Court denied the motion. (ECF No. 13 (Recommended Decision),
ECF No. 15 (Order Affirming).) Petitioner did not apply for a
certificate of appealability.
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 a petitioner to proceed on the motion. 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,
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 in part 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 ...