Hooten v. USA
RULING re 1 MOTION to Vacate, Set Aside or Correct Sentence (2255) and ORDER of Transfer to the USCA- Successive Petition. Signed by Judge Janet C. Hall on 8/29/2011. (Oliver, T.) Modified on 8/30/2011 (Oliver, T.).
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
UNITED STATES OF AMERICA
CIVIL ACTION NO.
AUGUST 29, 2011
RULING RE: MOTION TO VACATE SENTENCE AND ORDER TO TRANSFER
Petitioner, Eric Hooten, moves this court to vacate his sentence under 28 U.S.C.
§ 2255. Hooten argues that he was improperly sentenced as a Career Offender, in
violation of United States v. Savage.
This court lacks jurisdiction over Hooten’s petition, due to the fact that Hooten
has already pursued a § 2255 petition that was adjudicated on the merits. For the
reasons that follow, the court transfers this petition to the United States Court of
Appeals for the Second Circuit.
On October 2, 2002, a federal grand jury indicted Hooten, along with two co-
conspirators, for participating in a conspiracy to distribute heroin. 3:02-cr-278(JCH)
Doc. No. 1. On February 2, 2003, after negotiating a plea agreement with the
government, Hooten pled guilty to Count Five of the indictment. Doc. Nos. 41–42. The
plea agreement provided that Hooten waived his right to appeal or collaterally attack his
sentence if he was sentenced to not more than 188 months imprisonment. Plea
Agreement, at 4. On May 1, 2003, this court sentenced Hooten to a term of
imprisonment of 151 months. Doc. No. 50.
Hooten filed an appeal on July 7, 2003, which the Court of Appeals dismissed as
untimely. See Doc. Nos. 64, 69. On November 14, 2003, Hooten filed a § 2255
petition, arguing that his trial counsel was ineffective in failing to file a timely notice of
appeal. Doc. No. 70. The court denied Hooten’s petition, finding that Hooten did not
suffer from ineffective assistance of counsel when he entered into the plea agreement
with the government. See Doc. No. 82, at 7–8. The court, however, permitted him to
amend his petition to assert that his waiver of his right to appeal and collaterally attack
his sentence was not knowing and voluntary. Id., at 8
Hooten filed a supplemental pleading in support of his petition on June 22, 2005.
Doc. No. 89. The court granted Hooten’s motion to appoint counsel, and on August 4,
2006, Hooten filed a Second Amended Motion under § 2255. See Doc. Nos. 91, 94.
On October 23, 2006, the court denied Hooten’s Second Amended Motion for
§ 2255 relief on the grounds that Hooten had in fact knowingly and voluntarily waived
his rights to appeal and collaterally attack his sentence. See Doc. No. 97 at 2–5.
Hooten appealed the court’s denial of his Second Amended Motion; however, the Court
of Appeals dismissed the appeal on the grounds that Hooten failed to either pay the
docketing fee or move to file in forma pauperis. See Doc. No. 100.
On January 13, 2011, Hooten filed the instant motion under § 2255, arguing that,
due to the change in law following United States v. Savage, his status as a career
offender under the sentencing guidelines should be revised. 3:11-cv-80(JCH) Doc.
No. 1. The court granted Hooten’s motion to appoint counsel on April 8, 2011. Doc.
Section 2255(h) provides that a second or successive motion under section 2255
“must be certified as provided in section 2244 by a panel of the appropriate court of
appeals.” 28 U.S.C. § 2255(h). Absent such certification, the district court lacks
jurisdiction over such a motion. See Liriano v. United States, 95 F.3d 119, 123 (2d Cir.
1996) (“[W]hen a second or successive petition for habeas corpus relief or § 2255
motion is filed in a district court without the authorization by this Court that is mandated
by § 2244(b)(3), the district court should transfer the petition or motion to this
Court . . . .”). A petition under section 2255 is a “second or successive motion” if a prior
petition under section 2255, which raised claims regarding the same conviction or
sentencing, was adjudicated on the merits. See Corrao v. United States, 152 F.3d 188,
191 (2d Cir. 1998).
There is no indication that Hooten has sought certification from the Court of
Appeals regarding this motion. See Doc. Nos. 1, 18. In fact, Hooten asserts that this
court retains jurisdiction because the court’s previous decision that Hooten knowingly
and voluntarily waived his right to appeal or collaterally attack his sentence was not on
the merits. See Supplemental Reply to Government’s Resp., at 2. Hooten maintains
that he was not adequately represented at his change of plea and that his decision to
waive his right to attack his sentence was not knowing or voluntary. Id.
After considering Hooten’s first § 2255 petition, this court held that Hooten did not
suffer from ineffective assistance of counsel at his change of plea. See Doc. No. 82, at
7–8. After permitting Hooten to amend his petition and considering the amended
petition, the court then held that Hooten acted knowingly and voluntarily in entering into
a plea agreement with the government under which Hooten waived his right to appeal
and collaterally attack his sentence. Doc. No. 97, at 4–5. The court made both these
decisions on the merits of Hooten’s petitions. Accordingly, the instant motion is a
second motion under § 2255. As Hooten has not obtained certification from the Court of
Appeals to file this motion, this court lacks jurisdiction.
For the foregoing reasons, the court transfers this petition to the United States
Court of Appeals for the Second Circuit so that it may determine whether the claims
raised in this petition should be considered by the district court.
Dated at Bridgeport, Connecticut this 29th day of August, 2011.
/s/ Janet C. Hall
Janet C. Hall
United States District Judge
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