United States District Court, D. Maine
RECOMMENDED DECISION ON 28 U.S.C. § 2255
C. NIVISON U.S. MAGISTRATE JUDGE.
Dawlin Cabrera has moved, pursuant to 28 U.S.C. § 2255,
to vacate, set aside or correct his sentence. (Motion, ECF
No. 898.) Petitioner cites Johnson v. United States,
__U.S. __, 135 S.Ct. 2551 (2015), as one of his bases for
relief. (Motion at 1.) Petitioner also requests relief under
Amendment 794 to the sentencing guidelines, regarding
U.S.S.G. § 3B1.2, and he requests that the Court modify
his sentence if and when he completes a drug program. (Motion
at 1; Attachment to Motion, ECF No. 898-2 at 1-2.)
was convicted following his guilty plea to conspiracy to
distribute and possess with intent to distribute 28 grams or
more of cocaine base, 21 U.S.C. §§ 841(a)(1),
841(b)(1)(B), 846. (Judgment, ECF No. 496.) The Court
sentenced Petitioner to a term of 120 months of imprisonment,
followed by a term of 5 years of supervised release.
(Id. at 2-3.) Petitioner appealed from the sentence;
the First Circuit affirmed the judgment. United States v.
Cabrera, No. 13-1884 (1st Cir. Dec. 5, 2014).
March 2015, this Court granted Petitioner’s motion for
a sentence reduction, pursuant to 18 U.S.C. §
3582(c)(2), and reduced the prison term from 120 months to 97
months. (Order, ECF No. 855.)
filed a section 2255 motion in June 2015. (Motion, ECF No.
872.) In that motion, Petitioner claimed that (1) he was
denied substantive and procedural due process, and that he
received ineffective assistance of counsel, in the
determination of the drug quantity; (2) counsel provided
ineffective assistance at the plea hearing and at sentencing
regarding sentencing enhancements; and (3) the Government
violated the plea agreement by using information obtained
from Petitioner’s proffer regarding the drug quantity.
(Id. at 4-5, 7-8.) The Court denied the motion and
denied a certificate of appealability. (ECF No. 882
(Recommended Decision), ECF No. 889 (Order Affirming).)
Petitioner’s request for a certificate of appealability
is pending and docketed in the First Circuit at Cabrera
v. United States, No. 16-1066.
that Petitioner’s request to appeal from the denial of
his prior section 2255 motion is pending in the First
Circuit, the motion pending in this Court (ECF No. 898) 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 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 ...