Findley v. USA

Filing 14

ORDER: The petitioner's 28 U.S.C. § 2255 motion to vacate, set aside or correct sentence (Doc. No. 1 ) is hereby DENIED for the reasons set forth in the attached document. The Clerk shall close this case. Signed by Judge Alvin W. Thompson on 10/14/15. (Mata, E.)

United States District Court
District of Connecticut
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:
ANDREW FINDLEY,
:
:
Petitioner,
:
:
v.
:
:
UNITED STATES OF AMERICA,
:
:
Respondent.
:
:
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Civil No. 3:13CV462(AWT)

TRANSFER ORDER RE 28 U.S.C. § 2255 MOTION
Petitioner Andrew Findley, appearing pro se, has filed a
motion pursuant to 28 U.S.C. § 2255 to vacate, set aside or
correct his sentence challenging the application of the
sentencing enhancement pursuant to 21 U.S.C. § 851.

Because his

motion is a successive one, this court has no jurisdiction and
must transfer it, in the interest of justice, to the Court of
Appeals for the Second Circuit pursuant to the Anti–Terrorism
and Effective Death Penalty Act (“AEDPA”) and to 28 U.S.C. §
1631 without addressing the merits.
I.

Relevant Background
The petitioner was convicted after a trial, and he was

sentenced in March 2000.

The judgment became final on October

7, 2002 when the U.S. Supreme Court denied certiorari.

The

petitioner has previously filed three separate § 2255 motions

challenging his conviction.

His first motion (3:97cr230, Doc.

No. 173), filed October 6, 2003, argued that his trial counsel
failed to conduct a proper investigation into possible defenses.
His second motion (3:97cr230; Doc. No. 202), filed October 29,
2003, claimed that his trial counsel’s representation was
compromised by (1) a conflict of interest; (2) counsel’s fraud
upon the court; and (3) counsel’s abandonment of Findley during
the trial.

His third motion (3:97cr230; Doc. No. 183), filed

February 6, 2004, reiterated his ineffective assistance of
counsel claims and sought an evidentiary hearing.
All three motions were denied on July 11, 2006 for failure
to make a substantial showing of the denial of a constitutional
right (3:97cr230; Doc. No. 216).

The petitioner appealed that

ruling, and the appeal was dismissed for failure to make a
substantial showing of the denial of a constitutional right
(3:97cr230; Doc. No. 231).
As the result of retroactive amendments to the Sentencing
Guidelines, the petitioner’s sentence was reduced to 292 months
pursuant to 18 U.S.C. § 3582(c)(2) on October 6, 2008
(3:97cr230; Doc. No. 239).

That order was appealed, and the

appeal was dismissed because it lacked an arguable basis in law
or fact (3:97cr230; Doc. No. 245).

Again as a result of

retroactive amendments to the Sentencing Guidelines,

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petitioner’s sentence was reduced to 240 months pursuant to 18
U.S.C. § 3582(c)(2) on July 3, 2012 (3:97cr230; Doc. No. 253).
II.

Discussion
The Court of Appeals must certify a successive habeas

petition before a district court may hear it.
2255(h)(2014).

See 28 U.S.C. §

“A petition is second or successive if a prior

petition ‘raising claims regarding the same conviction or
sentence [ ] has been decided on the merits.’” Quezada v. Smith,
624 F.3d 514, 517–18 (2d Cir. 2010)(quoting Corrao v. United
States, 152 F.3d 188, 191 (2d Cir. 1998)(holding that the
district court should have transferred the successive § 2255
petition to the Court of Appeals rather than dismissing “the
petition as time-barred, as an unauthorized successive petition,
and as lacking merit.”)).

“This remains true even if the latter

petition purports to raise new claims.”
(citation omitted).

Corrao, 152 F.3d at 191

“‘[R]eaching the merits of an uncertified

second or successive § 2255 petition impermissibly circumvents
the AEDPA’s gatekeeping provisions.’”

Torres v Senkowski, 316

F.3d 147, 151-52 (2d Cir. 2003)(citing Corrao, 152 F.3d at 191).
“[T]he district court must transfer uncertified successive
motions . . . pursuant to 28 U.S.C. § 1631 . . . to cure want of
jurisdiction.”

Torres, 316 F.3d at 151-52 (citing Liriano v.

United States, 95 F.3d 119, 121-23 (2d Cir. 1996)(per curiam)).

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It is undisputed that prior to the filing of the instant
habeas petition, there was a ruling on the merits of three prior
habeas petitions.

The petitioner cites Magwood v. Patterson,

561 U.S. 320 (2010), for the proposition that the two 18 U.S.C.
§ 3582(c)(2) sentence reductions after the first three petitions
and prior to the instant one resulted in a “new” judgment and
eliminated the need for authorization of a successive petition.
Magwood involved a federal district court’s conditional
habeas writ ordering the state court to release or resentence a
petitioner due to the failure to find statutory mitigating
circumstances with respect to his mental state.
561 U.S. at 326.

See Magwood,

The Supreme Court held that the resentencing

resulted in a new judgment and any subsequent habeas petition
challenging that judgment would not be considered a “second or
successive application” under 28 U.S.C. § 2244(b) if the new
judgment was issued in the interval between habeas petitions.
Magwood, 561 U.S. at 331.

Johnson v. United States, 623 F.3d

41, 45 (2d Cir. 2010), confirmed that Magwood applies to federal
prisoners' motions for collateral relief under 28 U.S.C. § 2255.
Unlike Magwood, which involved “a complete and new
assessment of all of the evidence, arguments of counsel, and
law”, Magwood, 561 U.S. at 326, this case involves a sentence
reduction pursuant to 18 U.S.C. 3582(c)(2) as the result of
retroactive amendments to the Sentencing Guidelines.
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Sentence

reduction “proceedings under 18 U.S.C. 3582(c)(2) .
constitute a full resentencing of the defendant.”
1B1.10(a)(3)(March 11, 2015).

.

. do not

U.S.S.G. §

In fact, the proceedings are

strictly limited to the application of the amendments listed and
nothing else.

See U.S.S.G. § 1B1.10(b)(1)(March 11, 2015)(“the

court shall substitute only the amendments listed . . . for the
corresponding guideline provisions that were applied when the
defendant was sentenced and shall leave all other guideline
applications decisions unaffected”).

In a sentence reduction

proceeding resulting from Sentencing Guidelines amendments, the
court simply amends the judgment; the court does not resentence
nor issue a “new” judgment.

See United States v. Carter, 500

F.3d 486, 490 (6th Cir. 2007)(“When a § 3582 motion requests the
type of relief that § 3582 provides for--that is, when the
motion argues that sentencing guidelines have been modified to
change the applicable guidelines used in the defendant’s
sentencing--then the motion is rightly construed as a motion to
amend sentencing pursuant to § 3582.”).
The instant motion is the fourth habeas petition filed by
the petitioner.

The court finds that the first three habeas

petitions were decided on the merits; the instant motion is an
uncertified, successive habeas petition; it raises claims
regarding the original judgment of conviction; and it is not
based on a new, intervening judgment.
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Thus, this court has no

jurisdiction to rule on the merits of the petitioner’s claims in
the absence of a certification by the Court of Appeals.
Accordingly, the instant petition must be transferred to the
Court of Appeals pursuant to 28 U.S.C. § 1631, in the interest
of justice, for a determination of whether it may be heard by
this court.
III. Conclusion
For the reasons set forth above, the Clerk is directed to
transmit this order and the Motion to Vacate, Set Aside or
Correct Sentence Pursuant to 28 U.S.C. § 2255 (Doc. No. 1) to
the Court of Appeals for the Second Circuit pursuant to 28
U.S.C. § 1631.
The Clerk shall close this case.
It is so ordered.
Signed this 14th day of October 2015 at Hartford,
Connecticut.

__________/s/AWT____________
Alvin W. Thompson
United States District Judge

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