RODRIGUEZ v. UNITED STATES OF AMERICA

Filing 5

MEMORANDUM AND ORDER directing the Clerk to transfer this action to the United States Court of Appeals for the Third Circuit so that Court may determine whether petitioner may proceed with a second or successive 2255 motion. Signed by Judge Robert B. Kugler on 8/29/2016. (dmr)(n.m.)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
_________________________________________
JOSE G. RODRIGUEZ,
:
:
Petitioner,
:
Civ. No. 16-4397 (RBK)
:
v.
:
:
UNITED STATES OF AMERICA,
:
MEMORANDUM AND ORDER
:
Respondent.
:
_________________________________________ :
Petitioner is a federal prisoner who is proceeding with a motion to vacate, set aside or
correct his sentence pursuant to 28 U.S.C. § 2255. Previously, petitioner brought a § 2255
motion in this Court that was denied by this Court. See Rodriguez v. United States, No. 11-0949,
2011 WL 3328519 (D.N.J. Aug. 1, 2011). Petitioner admits in this instant § 2255 motion that the
United States Court of Appeals for the Third Circuit denied a certificate of appealability on
November 1, 2012.
Petitioner filed this § 2255 motion in this Court in July, 2016. The government responded
that the motion should be denied because it is a second or successive § 2255 motion that lacks
the proper authorization from the Third Circuit to be filed in this Court. This Court agrees with
respondent’s position. If a “second or successive” habeas petition is filed in the district court
without authorization from the appropriate court of appeals, the district court may dismiss for
lack of jurisdiction or transfer the petition to the court of appeals pursuant to 28 U.S.C. § 1631.
See Padilla v. Miner, 150 F. App'x 116, 117 (3d Cir.2005); Littles v. United States, 142 F. App'x
103, 104 n.1 (3d Cir.2005) (citing Robinson v. Johnson, 313 F.3d 128, 139 (3d Cir.2002)). As
petitioner must first seek authorization from the Third Circuit before moving forward with his
second or successive § 2255 motion, this Court will transfer this action to the Third Circuit so

that it can determine whether petitioner has met the requisite standard to file a second or
successive § 2255 motion.
Accordingly, IT IS this 29th day of August, 2016,
ORDERED that the Clerk shall transfer this action to the United States Court of Appeals
for the Third Circuit so that Court may determine whether petitioner may proceed with a second
or successive § 2255 motion; and it is further
ORDERED that the Clerk shall serve this Order on petitioner by regular U.S. mail; and it
is further
ORDERED that the Clerk shall mark this case as closed in this District in light of the
transfer to the Third Circuit.

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

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