United States District Court, D. Maine
RECOMMENDED DECISION ON 28 U.S.C. § 2255
C. Nivison U.S. Magistrate Judge
Eugene Erwin Allen has filed a motion, pursuant to 28 U.S.C.
§ 2255, to vacate, set aside or correct his sentence.
(Motion, ECF No. 115.) After review of the motion and the
record in accordance with Rule 4(b) of the Rules Governing
Section 2255 Proceedings, I recommend the Court dismiss the
record establishes that Petitioner's motion is a second
or successive motion; Petitioner's first section 2255
motion is docketed at Allen v. United States, No.
1:07-cv-00039-JAW. The pending motion concerns the same
underlying criminal judgment as the first, which was decided
against Petitioner on the merits.
Court lacks jurisdiction to consider a second or successive
section 2255 motion unless the First Circuit has specifically
authorized the Court to consider it. 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)).
record lacks any evidence to suggest the First Circuit has
authorized Petitioner to file the current section 2255
motion. To the contrary, the First Circuit recently denied
Petitioner's application to file a second or successive
motion. Allen v. United States, No. 16-2517 (1st
Cir. April 4, 2017). (USCA Judgment, ECF No. 114.)
the record does not reflect that the First Circuit has
authorized Petitioner to proceed on a second or successive
motion, the Court is without jurisdiction to consider the
merits of the motion. Trenkler, 536 F.3d at 96.
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 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. Given the First
Circuit's recent denial of Petitioner's request to
file a second or successive petition, dismissal is
on the foregoing analysis, after a review in accordance with
Rule 4(b) of the Rules Governing Section 2255 Proceedings, I
recommend the Court dismiss Petitioner's section 2255
motion. (Motion, ECF No. 115.)
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
to file a timely objection shall constitute a waiver of the
right to de novo review by the district court and to
appeal the district court's order.