Gallagher v. United States
711 F.3d 315
| 2d Cir. | 2013Background
- Gallagher, pro se, seeks authorization for a second or successive §2255 motion in the EDNY.
- Gallagher was convicted of violent crimes in aid of racketeering under 18 U.S.C. §1959; judgment April 1996; affirmed 1997.
- In 1999, Gallagher filed a §2241 alleging ineffective assistance of counsel during plea negotiations; district court denied as untimely.
- He filed a Feb 12, 2013 motion seeking authorization to file a second or successive §2255 based on Lafler v. Cooper and Missouri v. Frye.
- The court relies on 28 U.S.C. §2244(b)(1) and Green v. United States to determine whether the current claim is allowed, and concludes Lafler/Frye are not retroactive new rules; therefore the motion is denied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the second or successive §2255 motion is authorized | Gallagher seeks authorization based on Lafler/Frye | The claim duplicates prior motion or lacks a new retroactive rule | Denied authorization |
| Whether Lafler and Frye establish a new retroactive rule for §2255(h)(2) | Lafler/Frye create a new rule retroactive on collateral review | They do not announce a new retroactive rule; they are applications of Strickland | Not a new retroactive rule; denied |
| Whether the Lafler/Frye claims are procedurally barred as previously raised | Same factual basis as first §2255 | Barred by Green v. United States (successive claim) | barred under Green |
Key Cases Cited
- Green v. United States, 397 F.3d 101 (2d Cir. 2005) (application of §2244(b)(1) to §2255 motions; successive claims arise)
- Tyler v. Cain, 533 U.S. 656 (Sup. Ct. 2001) (new rule not retroactive unless Supreme Court so holds)
- Strickland v. Washington, 466 U.S. 668 (Sup. Ct. 1984) (standard for ineffective assistance of counsel)
- Lafler v. Cooper, 132 S. Ct. 1376 (Sup. Ct. 2012) (application of Strickland; not shown retroactive rule)
- Missouri v. Frye, 132 S. Ct. 1399 (Sup. Ct. 2012) (application of Strickland; not retroactive rule)
- Green v. United States, 397 F.3d 101 (2d Cir. 2005) (governs dismissal of successive §2255 claims)