Marmolejos v. United States, 789 F.3d 66

Thomas Marmolejos (originally spelled "Marmolejas" in the record) was convicted in 2002 and sentenced principally to life; his conviction was affirmed on direct appeal.
He filed a § 2255 motion in 2005 raising ineffective-assistance claims; the district court denied relief and the Supreme Court denied certiorari.
In 2012 Marmolejos moved under Fed. R. Crim. P. 36 to correct clerical errors in the judgment (name spelling and USM number); the district court granted limited corrections and entered an amended judgment in 2013.
In 2014 Marmolejos filed another § 2255 motion challenging the 2002 conviction and argued (citing Magwood) that the 2013 amended judgment created a "new judgment," so his 2014 motion was not second or successive and did not require appellate authorization under AEDPA.
The district court deemed the 2014 motion second or successive (because the 2013 amendment corrected only clerical errors) and transferred the motion to the Second Circuit for a gatekeeping determination under 28 U.S.C. §§ 2255(h) and 2244(b)(3)(A).
Marmolejos sought a certificate of appealability in the Second Circuit; the court treated his pro se filing as a motion to retransfer and resolved the legal question whether a Rule 36 clerical amendment produces a "new judgment" under Magwood.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether an amended judgment correcting clerical errors under Rule 36 constitutes a "new judgment" so that a subsequent § 2255 motion is not "second or successive" under AEDPA	Magwood: because an amended judgment was entered in 2013, the 2014 § 2255 is the first challenge to that judgment and is not second or successive	A Rule 36 amendment corrects only clerical, nonsubstantive errors and does not produce a new judgment for AEDPA purposes; thus the 2014 § 2255 is second or successive and requires appellate authorization	The court held Rule 36 clerical corrections do not create a "new judgment" under Magwood; the 2014 § 2255 is second or successive
Whether the Second Circuit had jurisdiction to hear an appeal from the district court's transfer order	Marmolejos sought a certificate of appealability to appeal the transfer order	Transfer orders of § 2255 motions are not appealable final orders; such challenges should be raised by a retransfer motion to the court of appeals	The court held it lacked jurisdiction to entertain an appeal of the transfer order, construed the filing as a retransfer motion, and denied retransfer

Magwood v. Patterson, 561 U.S. 320 (2010) (a resentencing that produces a new judgment makes the first habeas application attacking that new judgment not "second or successive")
Panetti v. Quarterman, 551 U.S. 930 (2007) (construction of "second or successive" in AEDPA context)
Johnson v. United States, 623 F.3d 41 (2d Cir. 2010) (applying Magwood principle to § 2255 and holding first motion after a substantive judgment modification is not second or successive)
United States v. Werber, 51 F.3d 342 (2d Cir. 1995) (Rule 36 authorizes correction only of clerical errors; not substantive alteration of a final judgment)