United States District Court, D. Maine
RECOMMENDED DECISION ON 28 U.S.C. § 2255
C. Nivison U.S. Magistrate Judge
Robert Marion has moved, pursuant to 28 U.S.C. § 2255,
to vacate, set aside or correct his sentence. (Motion, ECF
No. 80.) Petitioner cites Johnson v. United States,
__ U.S. __, 135 S.Ct. 2551 (2015), as the basis for
relief. (Motion at 1.)
was convicted, following his guilty plea, of distribution of
five or more grams of cocaine base, 21 U.S.C. §§
841(a)(1) and (b)(1)(B), and the Court sentenced him to a
prison term of 168 months, followed by a term of five years
of supervised release. (Judgment, ECF No. 36.) Petitioner
appealed from the sentence, and the First Circuit affirmed.
(United States v. Marion, No. 05-1341 (1st Cir. Apr.
10, 2006), docketed at No. 2:04-cr-00094-DBH, ECF No. 46.)
filed a section 2255 motion in 2008. (Marion v. United
States, No. 2:08-cv-00060-DBH, ECF No. 1.) Petitioner
alleged ineffective assistance of counsel and that his
sentence was based on a prior conviction that had been
vacated; the Court denied relief. Marion v. United
States, 2008 WL 4602304, 2008 U.S. Dist. Lexis 85805 (D.
Me. Oct. 15, 2008) (recommended decision). (Marion,
No. 2:08-cv-00060-DBH, ECF No. 24 (recommended decision), ECF
No. 27 (order adopting).) The First Circuit denied a
certificate of appealability. (Marion v. United
States, No. 09-1062 (1st Cir. Apr. 6, 2009), docketed at
No. 2:08-cv-00060-DBH, ECF No. 40.)
2012, the First Circuit denied Petitioner's petition for
a writ of mandamus. (In re Marion, No. 11-2421 (1st
Cir. Jan. 13, 2012), docketed at No. 2:04-cr-00094-DBH, ECF
No. 60.) Later that year, Petitioner filed another section
2255 motion. (ECF No. 61.) This Court dismissed the motion as
an unauthorized second or successive motion. (ECF No. 62
(recommended decision), ECF No. 64 (order affirming).) In a
consolidated appeal, the First Circuit denied
Petitioner's request to appeal the dismissal of his
second or successive section 2255 motion, and it denied his
request to file a second or successive section 2255 motion.
(Marion v. United States, Nos. 12-2165, 12-2254 (1st
Cir. Nov. 8, 2012), docketed at No. 2:04-cr-00094-DBH, ECF
Petitioner's 2008 section 2255 motion, which concerned
the same underlying criminal judgment and which was decided
on the merits, the section 2255 motion now pending in this
Court (ECF No. 80) is a second or successive such motion, and
thus it is subject to the gatekeeping requirements of 28
U.S.C. §§ 2244, 2255(h).
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.
has filed an application in the First Circuit for permission
to file a second or successive section 2255 motion.
(Marion v. United States, No.
16-1835.) The First Circuit docket reflects that
Petitioner's request is pending. (Id.)
the record lacks any evidence that the First Circuit has
authorized Petitioner to proceed in this Court 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