Miles v. United States of America

Filing 2

MEMORANDUM & ORDER TRANSFERRING CASE AS SUCCESSIVE PETITION. Since petitioner has already filed a prior motion under 28 U.S.C. § 2255 challenging the very same conviction, the Court is without authority to consider the instant applicat ion. In the interest of justice, the Clerk of Court shall transfer this petition to the Clerk of Court for the United States Court of Appeals for the Second Circuit, pursuant to 28 U.S.C. § 1631. The Clerk of Court is further directed to close this case for administrativepurposes. SO ORDERED by Judge Eric N. Vitaliano, on 10/10/2013. C/mailed to pro se Petitioner. (This Order has been forwarded to Appeals Department.) (Latka-Mucha, Wieslawa)

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IN CLERK'S OFFiCE
U.S. DISTRICT COURT ED.Nl

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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MICHELLE MILES,

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OCT 1 6 2013

BROOKLYN OFFICE

Petitioner,
MEMORANDUM & ORDER

-against-

13-CV-5302 (ENV)
THE UNITED STATES OF AMERICA,
Respondent.

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VITALIANO, D.J.,
On September 18, 2013, the Court received petitioner Michelle Miles's pro se
petition challenging the sentence imposed by a judge of this Court on April 7, 2000.
Since petitioner has already filed a prior motion under 28 U.S.C. § 2255 challenging
the very same conviction, the Court is without authority to consider the instant
application. Instead, the petition must be transferred to the United States Court of
Appeals for the Second Circuit, pursuant to 28 U.S.C. § 1631. The reasons follow.
Discussion
On April 7, 2000, petitioner was sentenced upon her conviction for conspiracy
to distribute and to possess with intent to distribute heroin and cocaine base, in
violation of 21 U.S.C. § 846, and for distribution of and possession with intent to
distribute cocaine base, in violation of 21 U.S.C. § 841. On April 23, 2003, Miles
filed a petition for a writ of habeas corpus pursuant to § 2255, challenging her
conviction and sentence, which was denied by this Court on May 31, 2006. United

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States v. Miles, No. 03-CV-2063, 2006 WL 1581367 (E.D.N.Y. May 31,2006). The
Second Circuit denied a certificate of appealability and dismissed Miles's appeal in
a mandate issued August 17, 2007. Petitioner now moves anew to vacate, set aside
or correct the same April 7, 2000 sentence.
Section 2255, as amended by the Antiterrorism and Effective Death Penalty
Act of 1996 ("AEDPA"), states that a petitioner challenging her conviction or
sentence is limited to a single § 2255 petition, unless a second or successive
application is "certified as provided in section 2244 by a panel·of the appropriate
court of appeals to contain-(I) 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). Since the instant petition challenges the same underlying
conviction and sentence as Miles's April 23, 2003 petition, which was determined by
this Court on the merits, it is "second or successive" within the meaning of AEDP A.
See Corrao v. United States, 152 F.3d 188, 191 (2d Cir. 1998). On this history,
jurisdiction is with the Second Circuit; none lies here. Id.
Conclusion
In the interest of justice, the Clerk of Court shall transfer this petition to the
Clerk of Court for 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.
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1996) (per curiam).
The Clerk of Court is further directed to close this case for administrative
purposes.
SO ORDERED.
Dated: Brooklyn, New York
October 10, 2013

/S/ Judge Eric N. Vitaliano
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ERIC N. VITALIANO
United States District Judge

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