Jean v. United States of America

Filing 10

ORDER: Defendant Maxo Jean, currently incarcerated in Philipsburg, Pennsylvania and proceeding pro se, moves pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence entered in the underlying criminal case. For the reasons se t forth below, the Court transfers this matter to the United States Court of Appeals for the Second Circuit. In his submission, Jean argues that his sentence should be vacated because there is no record that the grand jury that indicted him was compr ised of 12 or more members and therefore did not comply with the Fifth Amendment. I previously denied a § 2255 motion filed by Jean, see United States v. Jean, No. 13-cr-280 (DC), 2018 WL 4771530, at *1 (S.D.N.Y. Oct. 3, 2018), and I reaffirmed that decision on January 23, 2020, see Crim. Dkt. No. 97; Civ. Dkt. No. 9. A defendant needs permission from the Circuit court to file a successive § 2255 motion. See 28 U.S.C. § 2255(h). In the interest of justice, the Court transfers this matter to the United States Court of Appeals for the Second Circuit to decide whether to grant Jean leave to file another successive § 2255 motion. See 28 U.S.C. § 1631; see also Liriano v. United States, 95 F.3d 119, 122-23 (2d Cir. 1996) . This order closes this action. If the Court of Appeals authorizes Jean to file a successive motion, he shall move to reopen this case under the civil docket number. As the motion makes no substantial showing of a denial of a constitutional right, a certificate of appealability will not issue. See 28 U.S.C. § 2253. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith and therefore in forma pauperis status is denied for the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). (Signed by Judge Denny Chin on 7/22/2020) (rj) Transmission to Appeals Clerk.

Case 1:18-cv-02888-DC Document 10 Filed 07/22/20 Page 1 of 2

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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UNITED STATES OF AMERICA
- against MAXO JEAN,

:
:
:

Defendant.

ORDER
13 Cr. 280 (DC)
18 Civ. 2888 (DC)

:

- - - - - - - - - - - - - - - - - -x
DENNY CHIN, Circuit Judge:
Defendant Maxo Jean, currently incarcerated in
Philipsburg, Pennsylvania and proceeding pro se, moves pursuant
to 28 U.S.C. § 2255 to vacate, set aside, or correct his
sentence entered in the underlying criminal case.

For the

reasons set forth below, the Court transfers this matter to the
United States Court of Appeals for the Second Circuit.
In his submission, Jean argues that his sentence
should be vacated because there is no record that the grand jury
that indicted him was comprised of 12 or more members and
therefore did not comply with the Fifth Amendment.

I previously

denied a § 2255 motion filed by Jean, see United States v. Jean,
No. 13-cr-280 (DC), 2018 WL 4771530, at *1 (S.D.N.Y. Oct. 3,
2018), and I reaffirmed that decision on January 23, 2020, see
Crim. Dkt. No. 97; Civ. Dkt. No. 9.

Case 1:18-cv-02888-DC Document 10 Filed 07/22/20 Page 2 of 2

A defendant needs permission from the Circuit court to
file a successive § 2255 motion.

See 28 U.S.C. § 2255(h).

In

the interest of justice, the Court transfers this matter to the
United States Court of Appeals for the Second Circuit to decide
whether to grant Jean leave to file another successive § 2255
motion.

See 28 U.S.C. § 1631; see also Liriano v. United

States, 95 F.3d 119, 122-23 (2d Cir. 1996).
this action.

This order closes

If the Court of Appeals authorizes Jean to file a

successive motion, he shall move to reopen this case under the
civil docket number.
As the motion makes no substantial showing of a denial
of a constitutional right, a certificate of appealability will
not issue.

See 28 U.S.C. § 2253.

The Court certifies pursuant to 28 U.S.C. § 1915(a)(3)
that any appeal from this order would not be taken in good faith
and therefore in forma pauperis status is denied for the purpose
of an appeal.

See Coppedge v. United States, 369 U.S. 438, 444-

45 (1962).
SO ORDERED.
Dated:

New York, New York
July 22, 2020
___s/Denny Chin______________
DENNY CHIN
United States Circuit Judge
Sitting By Designation

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