Klein v. USA

Filing 114

OPINION AND ORDER. Currently before this Court is Klein's most recent attempt to relitigate his conviction, which he styles as a motion for an "order to show cause" rather than as a second or successive § 2255 petition. Dkt. No. 113. No Federal Rule of Civil Procedure authorizes such a motion in these circumstances. Rather, because Klein's motion challenges his conviction as being "imposed in violation of the Constitution or laws of the United States," the Court hereby construes it as a second or successive § 2255 petition and TRANSFERS it to the United States Court of Appeals for the Second Circuit for performance of its gatekeeping function. See 28U.S.C. § 2255(a); Whab v. United States, 408 F.3d 116, 118 (2d Cir. 2005) ("[A] 'second or successive' petition for relief under § 2255 may not be filed in a district court, unless the petitioner first obtains the authorization of the court of appeals, certifying that the petition conforms to specified statutory requirements."); Jiminian v. Nash, 245 F.3d 144, 148 (2d Cir. 2001) ([W]hen presented with a [post-conviction motion] raising previously available claims appropriately the subject of a § 2255 motion, district courts should construe the petition as a second or successive § 2255 motion and transfer it to this Court for certification, so long as the prisoner had a prior § 2255 motion dismissed on the merits.") SO ORDERED. (Signed by Judge Paul A. Crotty on 11/21/17) Copies Mailed By Chambers. (yv)

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