United States District Court, D. Maine
RECOMMENDED DECISION ON 28 U.S.C. § 2255
C. Nivison U.S. Magistrate Judge
Jeremy Bender has moved, through counsel, pursuant to 28
U.S.C. § 2255, to vacate, set aside or correct his
sentence. (Motion, ECF No. 62.) Petitioner cites Johnson
v. United States, --- U.S. ---, 135 S.Ct. 2551 (2015),
as the basis for relief. (Motion at 1.)
was convicted in 2001, following a jury trial, of four counts
of being a felon in possession of several firearms, 18 U.S.C.
§§ 922(g)(1), 924(e)(1); the Court subsequently
sentenced him to 293 months in prison on each of the counts,
to be served concurrently, followed by five-year concurrent
terms of supervised release. (Jury Verdict, ECF No. 33;
Judgment, ECF No. 37.) United States v. Bender, 304
F.3d 161, 162-63 (1st Cir. 2002). The First Circuit affirmed
the conviction. 304 F.3d at 162.
filed his first section 2255 motion in 2004; the Court denied
relief. Bender v. United States, No.
2:04-cv-00013-DBH (D. Me. Oct. 21, 2004) (order adopting
recommended decision). Given Petitioner’s 2004 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. 62) is a
second or successive such motion, and thus it is subject to
the gatekeeping requirements of 28 U.S.C. §§ 2244,
has filed a status report (ECF No. 68), which states that
Petitioner recognizes that his section 2255 motion is subject
to gatekeeping requirements. In the status report, Petitioner
requests that the Court transfer the section 2255 motion to
the First Circuit.
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.
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
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 ...