TAYLOR v. UNITED STATES OF AMERICA

Filing 14

MEMORANDUM, ORDER Directing Clerk to transfer Petitioner's 1 2255 to the United States Circuit Court of Appeals for the Third Circuit; Directing Clerk to close this case, etc. Signed by Judge Robert B. Kugler on 5/20/2019. (rss, n.m.)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
_________________________________________
KEVIN TAYLOR,
:
:
Petitioner,
:
Civ. No. 16-3194 (RBK)
:
v.
:
:
UNITED STATES OF AMERICA,
:
MEMORANDUM AND ORDER
:
Respondent.
:
_________________________________________ :
ROBERT B. KUGLER, U.S.D.J.
Before this Court is Petitioner Kevin Taylor’s (“Petitioner”) motion to vacate, set aside, or
correct his sentence pursuant to 28 U.S.C. § 2255. (ECF No. 1.) His motion challenges a sentence
imposed by this Court in United States v. Taylor, Crim. No. 06-699 (D.N.J. 2008).
This is the second time Petitioner seeks to bring a motion pursuant to 28 U.S.C. § 2255
attacking his 2008 conviction and sentence. In September 2011, Petitioner filed his first § 2255
motion, where he raised claims of ineffective assistance of counsel and discovery violations
pursuant to Brady v. Maryland, 373 U.S. 83 (1963). See Taylor v. United States, Civ. No. 115367, ECF No. 1 (D.N.J. 2011). On December 14, 2015, this Court denied Petitioner’s motion on
the merits. See id. at ECF Nos. 23, 24. On June 2, 2016, this Court received the instant § 2255
motion, in which Petitioner now alleges that his sentence is unconstitutional in light of the recent
United States Supreme Court decisions in Johnson v. United States, 135 S. Ct. 2251 (2015) and
Welch v. United States, 136 S. Ct. 1257 (2016). See Taylor v. United States, Civ. No. 16-3194,
ECF Nos. 1, 5 (D.N.J. 2016).
Under Title 28, Section 2255(h) of the United States Code, “a second or successive motion
must be certified as provided in section 2244 by a panel of the appropriate court of appeals[.]”

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Before a district court can entertain such a motion, “the applicant shall move in the appropriate
court of appeals for an order authorizing the district court to consider the application.” 28 U.S.C.
§ 2244(b)(3); see also Rules Governing § 2255 Cases, Rule 9. “When a second or successive
habeas petition is erroneously filed in a district court without the permission of a court of appeals,
the district court’s only option is to dismiss the petition or transfer it to the court of appeals pursuant
to 28 U.S.C. § 1631.” Kunz v. Attorney Gen. of the State of New Jersey, Civ. No. 16-8817, 2017
WL 44946, at *2 (D.N.J. Jan. 4, 2017) (quoting Robinson v. Johnson, 313 F.3d 128, 139 (3d Cir.
2002)).
Under 28 U.S.C. § 1631:
Whenever a civil action is filed in a court … and that court finds that
there is a want of jurisdiction, the court shall, if it is in the interest
of justice, transfer such action … to any other such court in which
the action or appeal could have been brought at the time it was filed
… and the action or appeal shall proceed as if it had been filed in or
noticed for the court to which it is transferred on the date upon which
it was actually filed in or noticed for the court from which it is
transferred.
Here, Petitioner has filed a second or successive § 2255 motion, but he has not shown that
he was granted permission from the Third Circuit to file his motion. Absent permission from the
Third Circuit, this Court lacks jurisdiction over Petitioner’s application. However, since Petitioner
is proceeding on a successive § 2255 motion the basis of a new rule of constitutional law, it is in
the interest of justice to transfer this case to the Third Circuit Court of Appeals for consideration
of whether the district court is authorized to consider Petitioner’s successive application for relief
under § 2255. See 28 U.S.C. § 2255(h).
IT IS THEREFORE on this 20th day of May, 2019;

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ORDERED that the Clerk shall transfer Petitioner’s vacate, set aside, or correct his
sentence pursuant to 28 U.S.C. § 2255, (ECF No. 1), to the United States Circuit Court of Appeals
for the Third Circuit, pursuant to 28 U.S.C. § 1631; and it is further
ORDERED that the Clerk shall send a copy of this Order to Petitioner by regular mail; and
it is further
ORDERED that the Clerk of the Court shall mark this matter as CLOSED.

s/Robert B. Kugler
ROBERT B. KUGLER
United States District Judge

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