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Burke v. United States

United States District Court, D. New Hampshire

September 30, 2014

Stephen Burke, Petitioner Matthew McDonald, Petitioner Michael O'Halloran, Petitioner
United States of America, Respondent.

Stephen Burke, pro se.

Matthew McDonald, pro se.

Michael O'Halloran, pro se.

Seth R. Aframe, AUSA.


STEVEN J. McAULIFFE, District Judge.

In 1997, a federal grand jury indicted Stephen Burke, Matthew McDonald, and Michael O'Halloran (collectively, "Petitioners"), as well as three other men, and charged them with numerous offenses stemming from a series of bank and armored car robberies that occurred in the 1990's. One of the charges - carjacking - arose out of an armored car robbery that took place in Hudson, New Hampshire, during which two security guards were murdered. At the conclusion of a three-month trial, the jury convicted Petitioners on all counts charged against them. Those convictions, as well as Petitioners' sentences, were affirmed on appeal. See United States v. Shea , 211 F.3d 658 (1st Cir. 2000).

Subsequently, Petitioners filed separate, timely habeas corpus petitions, challenging their convictions and sentences. Those petitions were denied, and those denials were affirmed on appeal. See McGonagle v. United States, 2002 DNH 185 (D.N.H. Oct. 23, 2002), aff'd, 137 Fed.Appx. 373 (1st Cir. July 8 , 2005). In these proceedings, Petitioners again invoke the provisions of 28 U.S.C. § 2255 and move the court to vacate their sentences. For the reasons discussed, those petitions are transferred to the Court of Appeals for the First Circuit where Petitioners may seek the requisite order authorizing this court to consider the merits of their claims. See 28 U.S.C. § 2244(3)(A).


Relying upon the Supreme Court's recent decisions in Alleyne v. United States , 133 S.Ct. 2151 (2013), and Burrage v. United States , 134 S.Ct. 881 (2014), petitioners assert that they are entitled to sentencing relief under 28 U.S.C. § 2255.[1] Specifically, they claim to be "actually innocent" of the life sentences to which they were sentenced upon their convictions for carjacking. See 18 U.S.C. § 2119(3). Petitioners argue that they were impermissibly (and unconstitutionally) sentenced to life in prison for carjacking with death resulting, given that the jury was not instructed with respect to, so did not find, the death resulting "element" of that crime.[2]

Petitioners previously raised the same issue, obviously without the benefit of Alleyne and Burrage, [3] on direct appeal, and it was resolved against them:

In retrospect, the failure to instruct on the "if death results" requirement was "error" under Jones, but it was patently harmless. The government introduced at trial photographs of the dead guards and testimony from the state's assistant deputy medical examiner, who participated in and testified about the autopsies. Witnesses testified that each of the four defendants had admitted that the guards were killed during the robbery, and the defendants did not contest the point. In the words of Neder v. United States , 527 U.S. 1, 119 S.Ct. 1827, 1837, 144 L.Ed.2d 35 (1999), we conclude "beyond a reasonable doubt that the omitted element was uncontested and supported by overwhelming evidence, " so the error in instruction was "harmless."

Shea , 211 F.3d at 672 (citation omitted).

But, that is unimportant with respect to these petitions. Because they plainly constitute "second or successive" petitions, this court cannot consider them unless the court of appeals first authorizes it to do so. See, e.g., Trenkler v. United States , 536 F.3d 85, 96 (1st Cir. 2008) (noting that a prisoner seeking to prosecute a second or successive petition under section 2255 must "obtain pre-clearance, in the form of a certificate, from the court of appeals."). The court of appeals has "interpreted this provision 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.'"). Id . (quoting Pratt v. United States , 129 F.3d 54, 57 (1st Cir. 1997)). See also United States v. Barrett , 178 F.3d 34, 41 (1st Cir. 1999). See generally Sustache-Rivera v. United States , 221 F.3d 8, 12-14 (1st Cir. 2000) (identifying some of the rare circumstances in which a numerically second petition will not be treated as "second or successive" under § 2255).

That petitioners have also brought their claims under the auspices of Rule 60(b) does not serve to vest this court with jurisdiction. See, e.g., Munoz v. United States , 331 F.3d 151, 152-53 (1st Cir. 2003) ("We hold, therefore, that a motion made under Rule 60(b) of the Federal Rules of Civil Procedure for relief from a judgment previously entered in a section 2255 case should be treated as a second or successive habeas petition if... the factual predicate set ...

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