Ortiz-Alvear v. United States of America

Filing 2

ORDER TRANSFERRING CASE AS SUCCESSIVE PETITION. This Court transfers this case to the US Court of Appeals for the Second Circuit. Ordered by Judge John Gleeson on 12/14/2012. O'Reilly, Helen)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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JUAN MANUEL ORTIZ-ALVEAR,
Petitioner,

NOT FOR PUBLICATION

MEMORANDUM AND ORDER

-against12 CV 5758 (JG)
UNITED STATES OF AMERICA,
Respondent.
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John Gleeson, United States District Judge:
Petitioner Juan Manuel Ortiz-Alvear brings the instant pro se motion challenging
the conviction and 210-month sentence entered in this Court on November 7, 1995. See United
States v. Ortiz, No. 94 cr 389 (DGT) (filed May 20, 1994). He employs a standard form petition
for an Application for Leave to File a Second or Successive Motion to Vacate, Set Aside or
Correct Sentence, 28 U.S.C. § 2255, by a Prisoner in Federal Custody. In a letter accompanying
his Motion, Mr. Ortiz states, among other things, that he is innocent but that he would like to
accept the plea offer that his counsel failed to tell him about in 1994.
On September 28, 1998, Petitioner filed a motion to vacate his conviction and
sentence pursuant to 28 U.S.C. § 2255. He raised, inter alia, a claim of ineffective assistance of
trial counsel. That motion was denied by Order entered April 23, 1999. Ortiz v. United States,
No. 98 CV 6008 (DGT), Slip op. (E.D.N.Y. Apr. 19, 1999). The Court of Appeals for the
Second Circuit subsequently denied a certificate of appealability; its mandate issued on
December 3, 1999.
The instant motion challenges the same conviction. As such, it is a second or
successive habeas petition within the meaning of § 2255, which provides:
A second or successive motion must be certified . . . by a panel of the
appropriate court of appeals to contain (1) newly discovered evidence

that, if proven and viewed in light of the evidence as a whole, would
be sufficient to establish by clear and convincing evidence that no
reasonable factfinder would have found the movant guilty of the
offense; or (2) a new rule of constitutional law, made retroactive to
cases on collateral review by the Supreme Court, that was previously
unavailable.
28 U.S.C. § 2255(h).
The petitioner may not receive review of a second or successive habeas petition
unless he has first received permission from the Court of Appeals to do so, as only that court,
and not a district court may certify whether a second or successive petition “presents a claim not
previously raised that is sufficient to meet § 2244(b)(2)’s new-rule or actual-innocence
provisions.” Gonzalez v. Crosby, 545 U.S. 524, 530 (2005).
Accordingly, the Clerk of Court is directed to transfer the motion to the United
States Court of Appeals for the Second Circuit pursuant to 28 U.S.C. § 1631. See Liriano v.
United States, 95 F.3d 119 (2d Cir. 1996) (per curiam). This order closes this case. If the
Second Circuit authorizes Ortiz-Alvear to proceed in this matter, he shall move to reopen under
this docket number.
So ordered.

_______________________
John Gleeson
United States District Judge
Dated: Brooklyn, New York
December 14, 2012

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