815 F.3d 112
2d Cir.2016Background
- Petitioner Sheldon Fuller, pro se, filed multiple 28 U.S.C. § 2255 motions challenging his conviction for murder and related crimes.
- First § 2255: filed Dec 2010; denied by district court Nov 2011; COA denied by this Court Feb 2013; Fuller did not file certiorari, so adjudication became final May 2013.
- Second § 2255: filed Mar 2013 (while first appeal period still open); denied by district court Nov 2013; COA denied Sept 2014; certiorari denied Apr 2015.
- Third § 2255 (the instant motion): filed Jan 2015 while certiorari petition on the second motion was pending; district court transferred it to this Court as a successive petition.
- Fuller moved for remand, arguing the third motion was not successive because it was filed during the pendency of his second § 2255 proceeding.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Jan 2015 § 2255 motion is "successive" | Fuller: not successive because filed while second § 2255 was pending | Gov't: successive because petitioner already had one full, final opportunity for collateral review before the third petition | The third § 2255 motion is successive because it was filed after the first § 2255 adjudication became final |
| Whether filing during pendency of later petition prevents finality of earlier adjudication | Fuller: pendency of second petition means third is not "subsequent to the conclusion of 'a proceeding that counts as the first'" | Gov't: allowing that would permit indefinite extension of initial proceedings and defeat AEDPA gatekeeping | Court rejects Fuller’s view as contrary to AEDPA and the Court’s gatekeeping role |
| Whether third motion could be treated as an amendment to the second motion under Rule 15 | Fuller implies relational filing could be amendment | Gov't: third motion was filed after denial of second, so no pending motion to amend | Court: third motion is not an amendment because the second motion had been denied before the third was filed |
| Remedy after holding the motion successive | Fuller sought remand to district court | Gov't: transfer to this Court for authorization is proper | Motion for remand denied; court instructs Fuller to file for leave to file a successive § 2255 within 30 days or the proceeding will be dismissed |
Key Cases Cited
- Pena v. United States, 534 F.3d 92 (2d Cir. 2008) (finality measured by expiration of time to seek Supreme Court review)
- Whab v. United States, 408 F.3d 116 (2d Cir. 2005) (petitioner entitled to one full opportunity for collateral review)
- Ching v. United States, 298 F.3d 174 (2d Cir. 2002) (a § 2255 motion is successive only if filed after prior adjudication is final)
- Littlejohn v. Artuz, 271 F.3d 360 (2d Cir. 2001) (defining "first" proceeding for successive-petition analysis)
- United States v. MacDonald, 641 F.3d 596 (4th Cir. 2011) (discussing when a motion to add a claim to a pending authorized § 2255 is treated as an amendment rather than a successive petition)