United States District Court, D. Maine
RECOMMENDED DECISION ON 28 U.S.C. § 2255
C. NIVISON U.S. Magistrate Judge.
John Wayne Myers has moved, pursuant to 28 U.S.C__U.S. __,
135 S.Ct. 2551');">135 S.Ct. 2551 (2015), as one of his bases for
relief. (Motion at 1.) Petitioner also includes a
claim that relates to a Canadian conviction. (Motion at 5.)
was convicted, following a jury trial, of unlawful possession
of a firearm and ammunition by a felon, 18 U.S.C. § 922,
and he was sentenced to a prison term of 235 months, followed
by a term of five years of supervised release. (Docket Sheet;
Judgment, ECF No. 29.) Petitioner appealed; the First Circuit
affirmed the conviction and the sentence. United States
v. Myers, 294 F.3d 203 (1st Cir. 2002).
filed a section 2255 motion in August 2003. (Motion, ECF No.
39.) According to the recommended decision on that motion,
Petitioner asserted thirteen grounds, all of which were based
on Petitioner's "assertion that the authorities
involved in his arrest conspired to frame" Petitioner.
United States v. Myers, No. 2:00-cr-00104-DBH, 2003
WL 22829989, 2003 U.S. Dist. Lexis 21294 (D. Me. Nov. 25,
2003) (recommended decision); 2004 WL 34735, 2004 U.S. Dist.
Lexis 27 (Jan. 5, 2004) (order affirming). Petitioner did not
seek a certificate of appealability.
Petitioner's prior section 2255 motion, the section 2255
motion now pending in this Court (ECF No. 54) is a second or
successive such motion, and it is subject to the gatekeeping
requirements of 28 U.S.C. §§ 2244, 2255(h).
Petitioner asserts that he has submitted an application to
the First Circuit for leave to file a second or successive
section 2255 motion. (Motion to Stay; Attachments to Motion
to Stay, ECF Nos. 55-1, 55-2.) Based on a review of the First
Circuit docket, it does not appear that an application has
been docketed in the First Circuit. In any event, this Court
has not received an order from the First Circuit authorizing
Petitioner to proceed on the motion.
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 approt 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)).
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 ...