United States District Court, D. New Hampshire
John Riley, Petitioner, Pro Se.
Respondent, represented by Seth R. Aframe, U.S.
RECOMMENDED DECISION ON 28 U.S.C. Â§ 2255
C. NIVISON, Magistrate Judge.
Daniel John Riley has filed a second or successive motion,
pursuant to 28 U.S.C. Â§ 2255, to vacate, set aside or correct
his sentence following his conviction pursuant to 18 U.S.C. Â§
924(c). (Motion, ECF No. 1.) Petitioner cites
Johnson v. United States, ___ U.S. ___, 135 S.Ct.
2551 (2015), as the basis for relief, and he requests that
counsel be appointed. ( Id. at 1-2.)
filed his first section 2255 motion in 2012; the Court denied
relief on the merits. ( Riley v. United States, No.
1:12-cv-00047-GZS (D. N.H. Feb. 25, 2013) (order affirming),
ECF No. 40.) The First Circuit denied a certificate of
appealability. ( Riley v. United States, No. 13-1435
(1st Cir. Feb. 7, 2014).) The Supreme Court denied
certiorari. Riley v. United States, 135 S.Ct. 277
has requested permission from the First Circuit to file a
second or successive section 2255 motion. ( Riley v.
United States, No. 16-1582 (application filed May 19,
2016).) In his application, Petitioner cites
Johnson, 135 S.Ct. 2551.
Court lacks jurisdiction to consider a second or successive
section 2255 motion unless the First Circuit has specifically
authorized the Court to consider it. Section 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)).
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. Â§ 1631 or
dismiss the petition." The issue, therefore, is
whether the Court should dismiss or transfer the matter.
that Petitioner relies on the Supreme Court's ruling in
Johnson to support his motion, and given that the
one year limitations period, pursuant to 28 U.S.C. Â§
2255(f)(3), for filing Johnson -related motions has
expired, 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 containing a claim
under Johnson, 135 S.Ct. 2551, 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. Â§ 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. Â§
A party 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 ...