Petition for Writ of Certiorari — Isni Gjuraj, Petitioner v. United States
Supreme Court briefFeb 12, 2018
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No.
IN THE
SUPREME COURT OF THE UNITED STATES
Isni Gjuraj
PETITIONER
-
(Your Name)
VS.
United States
RESPONDENT(S)
-
ON PETITION FOR A WRIT OF CERTIORARI TO
uit
United States Court of Appeal for the Second Circ
(NAME OF COURT THAT LAST RULED ON MERITS OF YOUR CASE)
PETITION FOR WRIT OF CERTIORARI
Isni Gjuraj
(Your Name)
Federal Correctional Institution
33 Pembroke Road
(Address)
Danbury, Ct 06811
(City, State, Zip Code)
(Phone Number)
QUESTIONS PRESENTED
Whether the exception to 28 U.S.C. § 2244(b) for a
second application raising a claim that would have been unripe
had the petitioner presented it in his/her first petition,
which the Court created in Panetti v Quarterman, 551 U.S. 930
(2007), also applies in the context of § 28 U.S.C. 2255(h)?
What remedy is available to a habeas petition who
contends a district court's transfer order (to the circuit
court for successive authorization under 28 U.S.C. H 2244(b)
or 2255(h)) is erroneous because the petition or motion is not
"successive"?
Whether the Antiterrorism and Effective Death Penalty
Act of 1996 (AEDPA) creates a .duty on the part of circuit
courts when a district court erroneously transfers a pro se
litigant's nonsuccessive motion or petition, to a court of
appeals for "successive" authorization under 28 U.S.C. §
2244(b) or § 2255(h)?
(1)
LIST OF PARTIES
[x] All parties appear in the caption of the case on the cover page.
page. A list of
of this
subject
the
all parties to the proceeding in the court whose judgment is
petition is as follows:
[ ] All parties do not appear in the caption of the case on the cover
(ii)
TABLE OF CONTENTS
.1
OPINIONS BELOW
JURISDICTION ..................................................2
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED ..............3
STATEMENT OF THE CASE ..........................................6
REASONS FOR GRANTING THE WRIT ................................13
CONCLUSION .....................................................30
INDEX TO APPENDICES
APPENDIX A: Petitioner's Memorandum In Support
Of 28 U.S.C. § 2255 Motion
APPENDIX B: Petitioner's Reply To Government's
Opposition To § 2255 Motion
APPENDIX C: District Court's 9/13/16 Order
APPENDIX D: Petitioner's Memorandum In Support
Of Motion For Retransfer
APPENDIX E: Second Circuit 1/9/17 Order
APPENDIX F: Petitioner's Reply To Government's Response
To Second Circuit's 1/9/17 Order
APPENDIX G: Appendix Of Exhibits Submitted With
Petitioner's Reply To Government's Response
(iii)
To Second Circuit's 1/9/17 Order
APPENDIX H: Second Circuit's 8/29/17 Order
APPENDIX I: Petitioner's Petition For Panel Rehearing
And Rehearing En Banc
APPENDIX J: Second Circuit's 11/15/17 Order
(iv)
TABLE OF AUTHORITIES CITED
CASES
PAGE NUMBER
Castro v United States
540 U.S. 375 (2003) ....................................22, 23
Fordv Wainwright ............................................15
477 U.S. 399 (1986) .......................................15
In re Jones
652 F.3d 603 (6th Ci
r 2010) ................................17
In re Weathersby
717 F.3d 1108 (10th Cir 2013) ......................16, 23, 24
James v Walsh
308 F.3d 162 (2nd Cir 2002) ................................27
Johnson v United States
544 U.S. 295 (2005) ...........................16, 21, 23, 24
Johnson.v Wynder
408 F.App'x 616 (3rd Cir 2010) .............................17
Leal Garcia v Quarterman
573 F.3d 214 (5th Cir 2009) ................................17
•
Lewis v Casey
518 U.S. 343 (1996) ........................................19
Magwood v Patterson
177 L.Ed.2d 592 (2010) ............................15, 16, 17
Marmolejos v Unitdd States
789 F.3d 66 (2nd Cir 2015) ............................26, 27
Panetti v Quarterman
551 U.S. 930 (2007) ....................................Passim
Stewart v United States
(v)
648 F.3d 856 (lath Cir 2011)
.16, 23, 24
United States v Buenrosto
638 F.3d 720 (9th Cir 2011) ....................14,16, 23, 24
United States v Hairston
754 F.3d 258 (4th Cir 2014) .......................16, 23, 25
STATUTES AND RULES
18 U.S.C. § 3582 .............6, 10, 11, 12, 13, 18, 19, 20, 21
21 U.S.C. § 841 ..............................................8
21 U.S.C. § 846 ...............................................8
28 U.S.C. § 1291 ............................................26
28 U.S.C. § 2244 .......................................Passim
28 U.S.C. § 2254 .........................................15, 16
28 U.S.C. § 2255 .......................................Passim
U.S.S.G. §2D1.1 ..............................................9
U.S.S.G. Amendment 750 ............................. 10,18,21
The Antiterrorism and Effective Death Penalty Act
of 1996 (AEDPA) ...................8, 14, 15, 21, 22, 25, 28
OTHER
Suspension Clause, US Constitution
Art. 1, § 9, c1. 2
......................8, 11, 13, 27, 29
(vi)
IN THE
SUPREME COURT OF THE UNITED STATES
PETITION FOR WRIT OF CERTIORARI
Petitioner respectfully prays that a writ of certiorari issue to review the judgment below.
OPINIONS BELOW
[x] For cases from federal courts:
The opinion of the United States court of appeals appears at Appendix
the petition and is
H
to
[1 reported at
; or,
[ ] has been designated for publication but is not yet reported; or,
[X] is unpublished.
The opinion of the United States district court appears at Appendix
the petition and is
C
[ ] reported at
; or,
{ ] has been designated for publication but is not yet reported; or,
[XI is unpublished.
{ I For cases from state courts:
The opinion of the highest state court to review the merits appears at
Appendix
to the petition and is
[ ] reported at
; or,
I ] has been designated for publication but is not yet reported; or,
[] is unpublished.
The opinion of the
appears at Appendix
___________________________
_______________
to the petition and is
I I reported at
; or,
[ I has been designated for publication but is not yet reported; or,
{ I is unpublished.
1.
court
to
JURISDICTION
[) For cases from federal courts:
The date on which the United States Court of Appeals decided my case
was August 29, 2017
[1 No petition for rehearing was timely filed in my case.
[A A timely petition for rehearing was denied by the United States Court of
Appeals on the following date: November 15, 2017
, and a copy of the
order denying rehearing appears at Appendix
[II An extension of time to ifie the petition for a writ of certiorari was granted
to and including
(date) on
(date)
in Application No. _A______
The jurisdiction of this Court is invoked under 28 U. S. C. § 1254(1).
[ 11 For cases from state courts:
The date on which the highest state court decided my case was
A copy of that decision appears at Appendix
[] A timely petition for rehearing was thereafter denied on the following date:
and a copy of the order denying rehearing
appears at Appendix
[1 An extension of time to ifie the petition for a writ of certiorari was granted
to and including
(date) on
(date) in
Application No.
A
.
The jurisdiction of this Court is invoked under 28 U. S. C. § 1257(a).
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
I. The statute under which Petitioner sought post conviction
relief was 28 U.S.C. § 2255:
- -
A prisonerin custody under sentence of a court
established by Act of Congress claiming the right to be
released upon the ground that the sentence was imposed in
violation of the Constitution or laws of the United States,
or that the court was without jurisdiction to impose such
sentence, or - that the sentence was in excess of the maximum
authorized by law, or is otherwise subject to collateral
attack, may move the court which imposed the sentence to
vacate, set aside or correct the sentence.
Unless the motion and the files and the records of the
case conclusively show that the prisoner is entitled to no
relief, the court shall cause notice thereof to be served
upon the United States attorney, grant a prompt hearing
thereon, determine the issues and make findings of fact and
conclusions of law with respect thereto. If the court finds
that the judgment was rendered without jurisdiction, or that
the sentence imposed was not authorized by law or otherwise
open-.to collateral attack, or that there has been such a.
denial or infringement of the constitutional rights of the
prisoner as to render the judgment vulnerable to collateral
attack, the court shall vacate and set the judgment aside
and shall discharge the prisoner or resentence him or grant
a new trial or correct the sentence as may appear
appropriate.
(h) A second or successive motion must be certified as
provided in section 2244 by a panel of the appropriate court
of appeals to contain
newly discovered evidence that, if proven and viewed
in light .of the evidence as a whole, would be sufficient to
establish by clear and convincing evidence that no
reasonable factfinder would have found the movant guilty
of the offense; or
a new rule of constitutional law, made retroactive to
cases on collateral review by the Supreme Court, that was
previously unavailable.
-
2. The analogous statute for a second or successive habeas
corpus application under section 2254, which was interpreted by
was
the Court in Panetti v United States,
28 U.S.C. § 2244, which provides:
4..
(b)(2) A claim presented in a second or successive habeas
corpus application under section 2254 that was notpresented
in a prior application shall be dismissed unless
(A) the applicant shows that the claim relies on a new
rule of constitutional law,, made retroactive to cases on
collateral review by the Supreme Court, that was
previously unavailable; or
(B).(i) the factual predicate for the claim could not have
been discovered through theexercise of due diligence; and
(ii) the facts underlying the claim, if proven,and viewed
in light of the evidence as awhble, would be sufficient to
establish by clear and convincing evidence that, but for
the constitutional error, no reasonable factfinder would
have found the applicant guilty of the underlying offense.
-
(b)(3)(A) Before a second or successive application
permitted by this section is filed in the district court,
the applicant shall move in the appropriate court of appeals
for an order authorizing the district court to consider the
application.
(b)(3)(B) A motion in the court of appeals. for an order
authorizing the district court to consider a second or
successive application shall be determined by a three-judge
panel of the court of appeals.
(b)(3)(C) The court of appeals may authorize the filing of a
second or successive application only if it determines that
the application makes a prima facie showing that the
application satisfies the requirements 'of this subsection.
(b)(3)(D) The court of appeals shall grant or deny the
authorization to file a second or successive application
not later than 30 days after the filing of the motion.
4
3. The Suspension Clause of the United States Constitution,
Art 1, § 6, ci., 2, provides:
"the Privilege of the Writ of Habeas Corpus shall not be
suspended, unless when in Cases of Rebellion or Invasion the
public Safety may require it."
5
STATEMENT OF THE CASE
I. BACKGROUND
This case 'focuses on two habeas motions under 28 U.S.C. §
2255, which Petitioner, who is serving a 320 month sentence
for a drug offense, filed in federal court. He filed the
first motion in 2012, and the second in 2016.
Petitioner's second § 2255 motion - raises a claim that
would have been unripe, and factually unsupported, had it been
presented in his first § 2255 motion. In particular, he
challenged an unconstitutional deprivation in the adjudication
of his motion for a..sentence reduction under 18 U.S.C. §
3582 (a) (2), which he filed in 2014 after his direct appeal and
first § 2255 were completed, based on the § 3582 court's
reliance on a mistaken and unsupported drug estimate in his
presentence report to deny § 3582 relief.
The district, court erroneously concluded the second §
2255 motion was a " successive" petition that must be transfer
to the Second Circuit for "successive" authorization, based on
its determination that the motion raises a claim that could
have been raised in the first § 2255 motion.
In the appellate court, Petitioner challenged the
transfer order as erroneous because the motion is
nonsuccessive under this Court's decision in Panetti v
Quarterman, 551 U.S ...930 (200.7), which created an exemption to
the analogous § 2244(b) for a second application raising a
claim that would have been unripe had the claim been presented
in an earlier habeas petition.
6
Although a number of other circuit courts have assumed,
without deciding, that the Panetti exception applies in the
context of § 2255(h), the Second Circuit has not, and it
denied Petitioner's request tore-transfer his nonsuccessive
motion back to the district court, without addressing the
question of whether the motion was successive. Instead, the
denial was impermissible based on a merits review of the
claims raised in the second § 2255 motion, without any
jurisdiction to do sib., since nothing in the statute permits
circuit courts to consider the merits of claims raised in a
motion which is transferred.to a circuit court for § 2255(h)
or § 2244(b) authorization.
This Petition shows the lower courts have decided a
federal question in a way in conflict with applicable
decisions of this Court and of other circuit courts, and that
the Second Circuit's decision. has so far departed from the
accepted and usual course of judicial proceedings as to call
for this Court's use of its supervisory powers.
This case presents three important questions of federal
law, that have not been, but should be, settled by the .Court:
*
Whether the exception to 28 U.S.C. ,
. § 2244(b) for a
second application raising a claim that would have been unripe
had the petitioner presented it in his/her first petition,
which the Court created in Panetti, also applies in the
context of 28 U.S.C. § 2255(h)
*
1.
•What remedy is available to a habeas petitioner who
contends a district court's transfer order (to a circuit court
for successive authorization under 28 U.S.C. H 2244(b) or
2255(h)) is erroneous because the application is not
7
"successive ".
*
Whether the Antiterrorism and Effective Death Penalty
Act of 1996 (AEDPA) creates a duty on the part of circuit
courts when a district court erroneously transfers a pro se
litigant's nonsuccessive motion or petition to a court of
appeals for "successive", authorization under 28 U.S.C. §
2244(b) or § 2255(h)
Clarification of these issues is of significant
importance to clarify the law and to obtain uniform
application of this Court's successive interpretations in the
context of § 2255(h), which is necessary to avoid to
decisions, like the one here, that foreclose any review of
constitutional claims that arise after the completion of a
petitioners' first § 2255 motion, thereby raising serious
constitutional questions with respect to the Suspension Clause
of the United States Constitution, Art. 1, § 9, ci. 2.
II. THE COURSE OF THE PROCEEDINGS BELOW
1. THE CRIMINAL PROCEEDINGS
On March 12, 2008, Petitioner was charged with, inter
alia, a conspiracy to distribute and possess with intent to
distribute 50 grams or more of cocaine base, in violation of
21 U.S.C. §§ 846, 841(a) and 841(b) (1) (A) (iii)
.
Appendix
("Appx") A (p. 4).
At his plea hearing, Petitioner conceded his offense
involved at least 4.5 kilograms ("KG") of cocaine base, which
warranted a base offense level of 38 under the US Sentencing
8
Guidelines. Appx E (p. 1). -The presentence report (PSR)
based its offense level determination on the 4.5 KG figure,
but "conservatively estimated that [Petitioner's] relevant
conduct
. ...
involved 56 kilograms of cocaine base." Id. In
response to the PSR, Petitioner asserted in his sentencing
memorandum that his conspiracy involved over 4.5 KG but less
than 50 KG of powder cocaine. Id. (p. 1-2).
At sentencing, the district court stated that there were
"no objections to the factual statements in the" PSR (other
than the objections not now relevant) and, thus, "adopt[ed]
the factual statements contained in the PSR as the Court's own
findings for purposdt of this sentencing." Id. (p. 2) The
district court did not mention the PSR's 56 KG estimate or
Petitioner's statement in his sentencing memorandum. Id. In
reciting the guideline calculations agreed to by the parties,
the court stated th.t the drug conspiracy "starts as a base
offense level of 38 under Section 2D1.1(c)(1) because the
conduct involved at least 4.5 [KG] of
...
cocaine [base]", and
calculated the total offense level at 41, which, at a criminal
history category of I, equates to a Guidelines range of 324 to
405 months, Id. The Court then sentenced Petitioner to 320
months incarceration. Appx A (P. 6).
2. THE FIRST § 2255 MOTION (11 2012 Motion").
On November 27, 2012, Petitioner filed a pro se motion
under 28 U.S.C. § 2255 raising ineffective assistance of
counsel claims. Dkt 4 (P. 13-14) (16cv366). The district court
denied the motion on July 10, 2013. Id. The Second Circuit
9
denied his request for a certificate of appealability on March
4, 2014. Id.
3. THE § 3582 MOTION
On April 7, 2014, after his direct appeal and first §
2255 motion were completed, Petitioner filed a pro se motion
under 18 U.S.C. § 3582(c) (2) seeking a sentence reduction
based on Amendment 150 to the United States Sentencing
Guidelines, which increased the threshold quantity of for a
base offense level of 38 from 4.5 KG to 8.4 KG of cocaine
base. Appx A (p 6-7). It is noteworthy that a new judge was
assigned to the § 35€2 proceeding because the sentencing judge
passed away. The new judge, denied the motion holding that,
at sentencing, the previous judge had adopted the PSR's
finding that the offense involved 56 KG, and therefore
Amendment 750 did no.t affect its "prior conclusion that a base
offense level of 38 applied", and, Petitioner was "thus.
ineligible for relief under the statute". Id. The new judge
was not aware that the 56 KG estimate was never mentioned at
sentencing, nor aware that the prior judge had instructed
Petitioner that he could dispute the 56 KG estimate in his
sentencing memorandum. Appx G (p. 10-18). The Second Circuit
denied his request to proceed in forma pauperis and dismissed
the appeal without giving him an opportunity to file an
opening brief on Decethber 31, 2014, and it denied his request
for reconsideration on March 4, 2015. Appx A (p. 6-7).
4. THE SECOND § 2255 MOTION (11 2.016 Motion")
10
'
On March 3, 2016, Petitioner filed a pro se 18 U.S.C. §
2255 motion challenging an unconstitutional deprivation of his
opportunity to obtain § 3582(c) (2) relief, based on the § 3582
court's reliance on
mistaken and unsupported 56 KG estimate
in the PSR. Appx A. The motion also argued that the claims
are nonsuccessive because they "did not 'ripen'
...
until
after Petitioner's first 2255 was completed." Id (p. 3). The
government argued the motion is "successive" and the district
court did not have jurisdiction to consider it because
Petitioner failed to obtain successive authorization from the
Second Circuit. Dkt 4 (p. 19-29) (16cv366). Petitioner argued
that the denial of permission to bring his nonsuccessive
claims will implicate the Suspension Clause of the U.S.
Constitution, Art. 1, § 9, ci. 2.. Appx B (p. 19-20)
The district court transferred the 2016 Motion to the
Second Circuit for "successive" authorization, based on its
determinations that 'the motion (1) "seeks to relitigate the
sentencing court's drug quantity calculation" and is therefore
a "collateral attack on the original judgment and sentence
imposed" and (2) "raises a claim that could have been[] raised
in an earlier petiti'on" and is therefore a "successive
petition that must be transferred to the [I Second Circuit".
Appx D (p. 7).
The Second Circuit docketed the transferred motion as a
motion for leave to file- a 'second 'or successive petition for
writ of habeas corpus. Dkt 2 (16-3177). On October 7, 2016,
Petitioner filed a "motion to re-transfer" the case back to
the district court, which challenged, the transfer order as
11,
erroneous "because the factual predicate for the specific
claims raised did not exist or ripen until after the
conclusion of his prior 2255 motion", and that failure to
permit him to bring the claim will implicate the Suspension
Clause of the U.S. Constitution, Art. 1, § 9, ci. 2. Appx D
(p. 7-10 & 14-16)
On January 9, 017, a Second Circuit motion panel
directed the Government to "brief the following issues: (1)
whether the March 2016 motion should be construed as a
successive § 2255. or a motion for reconsideration of the §
3582 denial, or both (2) whether, prior to sentencing,
Petitioner's statement in his sentencing memorandum that his
offense involved over 4.5 kilogram but less than 50 kilogram
of cocaine base [SIC] should be construed as an objection to
the PSR's 56 kilogram estimate (3) whether he was required to
object to the PSR's 56 kilogram estimate, when any amount over
4.5 kilograms would have qualified him for offense level 38
and an objection would not have had any material effect on the
sentence calculation (4) whether the district court's adoption
of the PSR's factual findings at sentencing should be
construed as including the 56 kilogram estimate under these
circumstances (5) whether Petitioner is now entitled to an
evidentiary hearing on the amount attributable to him and (6)
assuming the district court erred in any respect, whether
those errors are harmless. Appx E (p. 1-2).
In response to the motion panel's January 9, 2017 order,
the Government made two arguments. Dkt 20 (16-3177). First,
that the Second Cirduit should construe the 2016 Motion as a
successive petition and deny successive authorization. Id.
12
Second, that even if the 2016 Motion could be construed as a
motion for reconsideration of the denial of the . § 3582 motion,
it should be denied. Id. In reply, Petitioner renewed his
arguments that the 2016 Motion is nonsuccessive, and that
failure to permit him to bring his claims will implicate the
Suspension Clause, of the U.S.. Constitution, Art. 1, § 9, Cl.
2. Appx F (p. 2-6).
On August 29, 2017, a second motion panel of the Second
Circuit denied Petitioner's "motion to re-transfer", without
addressing Petitioner's nonsuccessive arguments, explaining
only that 11 [tlo the extent Petitioner seeks remand to permit
reargument of his motion pursuant to 18 U.S.C. § 3582(c) (2),
remand would be futile because his argument concerning the
drug amount was already decided against him by the district
court, his appeal from that prior decision was dismissed as
frivolous, and we decline to revisit the issue." Appx H.
On October 10, 2017, Petitioner filed aPetition for
panel rehearing and rehearing en banc. Appx I. The Petition
raised several arguments. First, the decision overlooked, and
failed to address, Petitioner's claim that the 2016 Motion is
nonsuccessive. Id (p. 4-7). Second, it failed to consider the
circuit court's duties and limited jurisdiction under 28
U.S.C. § 2244 and tile Suspension Clause of the U.S.
Constitution, Art. 1, § 9, ci. 2. Id (p. 7-9)
Third, it was
based on a misapprehension of facts. Petitioner's request for
reconsideration was denied on November 15, 2017. Id (p. 9).
REASONS FOR GRANTING THE PETITION
13
I. THE DISTRICT COURT HAS DECIDED A FEDERAL QUESTION IN A
WAY IN CONFLICT WITH APPLICABLE DECISION OF THIS
COURT AND OF OTHER CIRCUIT COURTS
1. THE MEANING OF "SECOND OR SUCCESSIVE" IN §2255(H)
The Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA), provides that a district court may not entertain a
"second or successive" motion filed by a federal prisoner
unless the prisoner has first obtained authorization from the
court of appeals. See 28 U.S.C. H 2244(b), 2255(h).
Petitioner did not ask the Second Circuit for permission to
file the 2016 Motion, nor do the claims raised in that motion
fall under either of the AEDPA's written exceptions to the
prohibition on successive motions. See § 2255(h) (permitting
successive motions only when they raise claims based on either
newly discovered evidence that establishes the petitioner's
innocence, or "a new rule of constitutional law[] made
retroactive to cases on collateral review"). As such, if §
2255(h) was interpreted according to its plain meaning, the
2016 Motion could not go forward.
Although this Court has not decided a post-AEDPA case
concerning the meaning of "second or successive" under §
2255(h) and Congress did not define that term, circuit court's
have relied on this Court's decisions under 28 U.S.C. §§ 2254
and 2244(b) (2) to define its meaning. See e.g., United States
v Buenrosto, 638 F.3d 720, 723-724 (9th Cir 2011) ("We assume,
without deciding, that the [Supreme] Court's interpretations
of 'second or successive' for purposes of § 2244(b) (2) applies
14
to § 2255(h)).
In the context of petitions filed under 28 U.S.C. § 2254,
this Court has held repeatedly that not every petition "filed
second or successively in time" to a prior petition counts as
"second or successiçe," "even when the later filings address a
II] judgment already challenges in a prior . § 2254 application".
Panetti, 551 U.S. at 944; see also Magwood v Patterson, 177
L.Ed.2d 592 (2010) (" [I]t is well settled that the phrase does
not simply refe[r] to all § 2254 applications filed second or
successively in time.") (internal quotations omitted).
This Court's decision in Panetti sheds light on
numerically second petition or motion should be subject to the
special rules for successive filings. There, a death row
inmate who previously had filed a federal habeas corpus
petition sought to bring a second petition which asserted he
was mentally incompetent and thus could not be executed under
Ford v Wainwright, 477 U.S. 399 (1986). Panetti, 551 U.S. at
937-938. Although the state conceded that Ford claims are
generally. unripe until well after the AEDPA's standard oneyear limitation period for filing an initial petition has run
(because the prisoner cannot raise a Ford claim until his
execution is imminent), it argued Panetti's second petition
was nevertheless "second or successive" to his first and thus
barred by Section 2244(b). Id at 942-943. The Court - rejected
this reading of the law, holding instead that a petition
raising a previously, unripe Ford claim is not second or
successive to a prior petition, and thus does not' fall within
the purview of § 2244(b). Id at 947.
'
In so holding, the Court refused to construe the AEDPA
15
"in a manner that would require unripe (and, often, factually
unsupported) claims to be raised as a mere formality, to the
benefit of no party." Id at 947. Panetti's conclusion hinged
on the fact that the Ford claim was not available when
Panetti brought his first federal petition. Id at 943-47. The
Court later described Panetti as having "creat[ed] an
exceptio[n1 to § 2244(b) for a second application raising a
claim that would have been unripe had the petitioner presented
it in. his first application". Magwood, 177 L.Ed.2d at 602
(internal quotations omitted).
A number of circuit courts have generalized this logic to
apply to other types of second-in-time petitions or motions
that were not ripe at the time of the initial petition in the
context of §§ 2254 and 2255 cases. See e.g., Stewart v United
States, 648 F.3d 856, 865 (11th Cir 2011) ("Because the basis
for his Johnson claim did not exist before his proceeding on
his proceedings on his initial § 2255 motion, Stewart's
numerically second motion is not 'second or successive, , and §
2255(h) 's gatekeeping provision does not apply"); In re
Weathersby, 717 F.3d 1108, 1111 (10th Cir 2013) (if the "basis
for his proposed § 2255 claim did not exist when those
proceedings were ongoing, his claim to reopen his federal
sentence based on the' state court vacatur is not 'second or
successive"); United States v Hairston, 754 F.3d 258 (4th Cir
2014) (holding that a "numerically second , § 2255 motion should
not be considered second or successive pursuant to § 2255(h)
where, as here, the facts relied on by the movant seeking
resentencing did not exist when the numerically filed motion
was filed and adjudicated"); United States v Buenrosto, 638
16
F.3d 720, 725 (9th Cir 2011) ("Prisoners may file second-intime petitions based on events that do not occur until a first
petition is concluded
...
(Sluch claims were .not ripe for
adjudication' at the conclusion of the prisoner's first federal
habeas proceeding." (citing cases)); Johnson v Wynder, 408
F.App'x 616, 619 (3rd Cir 2010) ("We see no reason to avoid
applying Panetti in the context of other types of claims that
ripen only after the initial federal habeas petition has been
-'
filed."); In re Jones, 652 F.3d 603, 605 (6th Cir
2010) (petition raising ex post facto claim based on amendments
to state law that occurred after first petition was not second
or successive); Leal Garcia v Quarterman, 573 F.3d 214, 222-24
(5th Cir 2009) ("If however, the purported defect did not
arise, or the claim did not ripen, until after the conclusion
of the previous petition, the later petition based on that
defect may be non-successive.").
Thus, while the Second Circuit has not decided whether
Panetti's holding, that petition raising a previously unripe
claim is not successive to a prior petition, applies to §
2255(h), nearly every other circuit has applied Panetti's
holding in the context of 2255(h).
-
2. THE 2016 MOTION IS NOT "SUCCESSIVE" UNDER PANETTI
Panetti "creat[ed] an exceptio[n] to § 2244(b) for a
second application raising a claim that would have been unripe
had the petitioner presented it in his first application",
Magwood, 177 L.Ed. 2d at 602 (internal quotations omitted),
which has been by applied by a number of circuit courts in the
17
context of § 2255(h)
Pursuant to the Panetti exception, the 2016 Motion is not
successive, because the factual predicate for the specific
claims raised did not exist or ripen until after conclusion of
the 2012 Motion.
To be sure, the motion challenges the unconstitutional
deprivation of Petitioner's opportunities to obtain §.
3582(c) (2) relief based on the §3582 court's reliance on a
mistaken and unsupported PSR drug estimate to deny §3582
relief, which occurred years after Petitioner's sentence was
imposed and prior § 2255 motion was completed.
"the Court, in connection with Petitioner's sentence, adopted
the findings of the [PSR] that included a mistaken and
unsupported drug quantity estimate, which Petitioner properly
objected to, and which the Government never provided
corroborating evidence to insure the reliability of the
estimate. This error was harmless, at that time, because the
estimate did not affect the length of his sentence. Years
later, the error resulted in an actual injury, when the Court
relied on the previously adopted and unsupported estimate to
deprive Petitioner of a [3582(c)] sentence reduction
based on Amendment 750 [USSG]. This ripened into a cognizable
constitutional claim on March 4, 2015, when Petitioner's
opportunity to seek review of the denial was dismissed [on
appeal]. The error also forms the basis of a separate claim
due to the unconstitutional deprivation of [his] opportunity
for sentence reduction under Amendment 782". Appx A (p. 1-2).
The specific injury-in-fact alleged in both claims (i.e.,
the inadequate adjudication and dismissal of his attempt to
appeal the denial of his § 3582(c) (2) under Amendment 750, and
the unconstitutional deprivation to obtain relief under
Amendment 782, did not occur until after the March 4, 2015
order, when he sustained an actual injury-in-fact, fairly
traceable to the challenged conduct, due to the lower courts
HWI
reliance on the mistaken and unsupported PSR estimate to deny
and dismiss his opportunities to obtain § 3582(c) (2) relief.
Prior to having sustained an actual injury-in-fact, Petitioner
could not have brought his specific claims to court. See e.g.,
Lewis v Casey, 518 U.S. 343, 351-55 (1996) (actual injury is a
constitutional prerequisite for bringing a case to court).
Because the factual predicate for the specific claims
raised did not exist or ripen until sometime after the March
4, 2015 order, well after the conclusion of the 2012 Motion,
the claim was not available when Petitioner brought his first
§ 2255 motion, and the 2016 Motion raising the previously
unripe claim is not successive pursuant to the exception
described in Panetti.
3.. THE DISTRICT
'S TRANSFER ORDER IS ERRONEOUS
The district court transfer order was based on its
erroneous conclusion that the 2016 Motion is a "successive
petition" based on its erroneous determination that the motion
"raises a claim that could have been[] raised in an earlier
petition" in "seek[ing] to relitigate the sentencing court's
drug quantity calculation". Appx D (p. 7).
First, the factual predicate of Petitioner's claim is not
the sentencing court's drug quantity calculation, but rather,
the § 3582 court's "reliance upon the factually inadequate 56
kilogram estimate to determine he was ineligible for a
sentence denEy] reduction", Appx A (p. 14), which did not come
into existence until after completion of Petitioner's first §
2255 motion.
19
Petitioner does not possess the prescience of. a
clairvoyant, and before the inadequate adjudication and
dismissal of his attempt to obtain § 3582 relief, he did not,
and could not, know'that the § 3582 court would conclude he
was ineligible for § 3582 relief by construing the sentencing
court's adoption of the PSR's factual statements as including
the factually inadequate and objected to 56 KG estimate, when
any amount over 4.5 KG would have qualified him for offense
level 38.
As such, it would have been impossible for Petitioner to
have brought the claim (which challenges the § 3582 court's
adjudication as violative of due process) in his first § 2255
motion, since the claim is based on the § 3582 court's
• adjudication, which did not take place until after his first §
2255 motion was completed, and which Petitioner was not
capable of predicting.
Second, there was no actionable error committed by the
sentencing court that could have been raised in either
Petitioner's appeal or his first § 2255 motion, with respect
to the 56 KG estimate at his sentencing, since "it was not
necessary for the [sentencing] court to resolve the 56
kilogram estimate, dispute, nor make a specific calculation
above 4.5 kilograms, because Petitioner was subject to the
highest baseline offense level". Appx A (p.13).
Thus, any error concerning the 56 KG estimate was
harmless at that time, and could not have been raised as a
claim in an earlier petition, because the error did not affect
Petitioner's sentence since his offense level of 38, at. that
time, was based on a range of 4.5 KG or greater, and as such,
20
his sentence would not have changed regardless of whether he
was accountable for 4.5 KG or the erroneous 56,KG estimate of
crack.
Third, althougb. Amendment 750, which increased, the
threshold drug amount for a base offense level of 38 from 4.5
KG to 8.4 KG, created an opportunity to move to reduce his
sentence, its not a fact that -by itself gave rise to an
alleged violation of Petitioner's due process rights in the
circumstances of this case.
Fourth, Petitioner's claim
-
that his claim
-
that he was
unconstitutionally deprived his opportunity to obtain § 3582
relief
-
simply did not accrue or ripen until the denial and
dismissal of his request for § 3582 relief. In Johnson v
United States, 544 U.S. 295 (2005), this Court held that a
judicial order in a petitioner's own case may constitute the
"factual predicate" of his subsequent § 2255 claim. Johnson
supports Petitioner"s contention that a legal decision, in
this case, the denial and dismissal of his 3582(c) (2) request,
constitute the "factual predicate" of the claims raised in the
2016 Motion.
As such, contrary to the district court.'s.conclusion, the
2016 Motion is not "successive" because the motion does not
"raise[] a claim that could have been raised in his 'earlier
petition."
4. THE DISTRICT COURT'S TRANSFER ORDER CONFLICTS WITH
DECISIONS OF THIS COURT AND OF OTHER CIRCUITS
The Court has refused to interpret AEDPA's "second or
21
successive" provisions in a way that would "produce
troublesome results", "close our doors to a class of habeas
petitioners seeking review without any clear.indication that
such was Congress' intent", or "require unripe (and, often,
factually unsupported) claims to be raised as a mere
formality, to the benefit of no party". Panetti, 551 U.S. at
947. In Castro v United States, 540 U.S. 375 (2003), after
repeating these holdings, the Court added that "any such
conclusion would prove, difficult to reconcile with the basic
principle that we read limitations on our jurisdiction to
-review narrowly." Id at 381.
The district court's erroneous "successive" conclusion,
within its transfer order, was decided in a way in conflict
with with. the above holdings of this Court in'Panetti and
Castro, and of other circuit courts.
First, the errQneous "successive" conclusion forecloses
any review of a constitutional claim that did not, ripen, or
even exist, until after the first § 2255 motion, and thereby
"close our doors to a class of habeas petitioners seeking
review without any clear indication that such was Congress'
intent". Panetti, 551 'U.S. at 947.
Second,' the erroneous "successive" conclusion, which
faults Petitioner for not having brought his claims in his
first § 2255 motion (when the claims were then "unripe",
factually unsupported, and unavailable), is based on an
impermissible interpretation of the AEDPA "that would require
unripe (and, often, factually, unsupported) claims to be raised
as a mere formality, to the benefit of no party".' Id.
Third, the errdneous "successive" conclusion- "would prove
22
difficult to reconcile with the basic principle that [ .the
Court] read[s] limitations on [its] jurisdiction to review
narrowly." Castro, 540 U.S. at 381.
Fourth, the district court's failure to recognize that
the 2016 Motion was not not successive (where the motion
raised claims that were unripe, and did not exist, until after
completion of Petitioner's first § 2255 motion) is in conflict
with the following decisions of this Court and of other
circuits. Panetti v Quarterman, 551 U.S. 930 (2007) (holding
that a petition raising a previously unripe claim is not
successive); See e.g., Stewart v United States, 648 F.3d 856,
865 (11th Cir 2011) ("Because the basis for his Johnson claim
did not exist before his proceeding on his proceedings on his
initial § 2255 motion, Stewart's numerically second motion is
not 'second or successive,' Land § 2255(h) 's gatekeeping
provision does not apply"); In re Weathersby, 717 F.3d 1108,
1111 (10th Cir 2013) (if the "basis for his proposed § 2255
claim did not exist rwhen those proceedings were ongoing, his
claim to reopen his federal sentence based on the state court
vacatur is not 'second or successive'"); United States v
Hairston, 754 F.3d 258 (4th Cir 2014) (holding that a
"numerically second 2255 motion should not be considered
second or successive pursuant to § 2255(h) where, as here, the
facts relied on by the movant seeking resentencing did not
exist when the numerically filed motion was filed and.
adjudicated"); United States v Buenrosto, 638 F.3d 720, 725
(9th Cir 2011) ("Prisoners may file second-in-time petitions
based on events that do not occur until a first petition is
concluded
...
[S]uch claims were not ripe for adjudication at
23
the conclusion of the prisoner's first federal habeas
proceeding.") (citing cases)..
II. THE SECOND CIRCUIT DECIDED A FEDERAL QUESTION IN A
WAY IN CONFLICT WITH APPLICABLE DECISIONS OF THIS
COURT AND OF OTHER CIRCUITS
For the reasons stated in Section I, supra, the 2016
Motion raised claims that were unripe, and did not exist,
until after completion of Petitioner's first § 2255 motion.
As such, the Second Circuit was required to rule that the
District Court's "successive" conclusion was erroneous and
transfer the 2016 Motion back to the District Court for a
determination in the merits.
By failing to recognize that the 2016 Motion was not
successive, and by failing to transfer the motion back to the
district court, the Second Circuit's decision conflicts with
decisions of this Court and other circuits. See e.g., Panetti
v Quarterman, 551 U.S. 930 (2007) (holding that a petition
raising a previously unripe claim is not successive); See
e.g., Stewart v United States, 648 F.3d 856, 865 (11th Cir
2011) ("Because the basis for his Johnson claim did not exist
before his proceeding on his proceedings on his initial § 2255
,
motion, Stewart's numerically second motion is not 'second or
successive,' and § 2255(h) 's gatekeeping provision does not
apply"); In re Weathersby, 717 F.3d 1108, 1111 (10th Cir
2013) (if the "basis for his proposed § 2255 claim did not
exist when those proceedings were ongoing, his claim to
reopen his federal sentence based on the state court vacatur
24
is not 'second or successive'"); United States v Hairston, 754
F.3d 258 (4th Cir 2014) (holding that a "numerically second §
2255 motion should not be considered second or successive
pursuant to § 2255(h) where, as here, the facts relied on by
the movant seeking resentencing did not exist when the
numerically filed motion was filed and adjudicated"); United
States v Buenrosto, '638 F.3d 720, 725 (9th Cir
2011) ("Prisoners may file second-in-time-petitions based on
events that do not occur until a first petition is concluded
[Siuch claims were not ripe for adjudication at the
conclusion of the prisoner's first federal habeas
proceeding.") (citing cases).
III. THE COURT OF APPEALS DECISION HAS SO FAR DEPARTED FROM
THE ACCEPTED AND USUAL COURSE OF JUDICIAL PROCEEDINGS
AS TO CALL FOR THIS COURT'S USE OF SUPERVISORY POWERS
Because the claims raised in the 2016 Motion were not
"second or successive" under H 2255(h) or 2244(b), the
gatekeeping provisions of the AEDPA did not apply, there was
not need for him to apply for authorization to file a second
or successive petition, and the district court erred in
transferring the "nonsuccessive" 2016 Motion to the Second
Circuit for "successive" authorization. See Sections I & II,
supra.
After the district court transferred the 2016 Motion to
the Second Circuit for successive authorization, Petitioner
filed a motion to r&-transfer the case back to the district
court, in which he challenged the transfer order as
25
erroneous.
Because the 2016 Motion was not successive, the Second
Circuit was required to rule that successive authorization was
unnecessary and transfer the motion back to the district court
1.
for a determination on the merits.
Because nothing in the statutory language of §§ 2255(h)
or 2244(b) allows for circuit courts to consider the merits of
claims raised in a nonsuccessive application erroneously
transferred to a court of appeals for successive
-
authorization, the Second Circuit lacked jurisdiction to
review the claims raised in the 2016 Motion on the merits.
I.
1. THE ACCEPTED AND USUAL COURSE OF JUDICIAL
PROCEEDINGS WHEN A "NONSUCCESSIVE" MOTION IS
ERRONEOUSLY TRANSFERRED TO A CIRCUIT COURT FOR
"SUCCESSIVE" AUTHORIZATION
It is well settled that' ll[aln order of a district court
transferring a § 2255 motion as second or successive is
neither a final decision appealable pursuant to 28 U.S.C. §
1291 nor a decision that would be appealable under the
collateral order doctrine." Marmolejos v United States, 789
F.3d 66 (2nd Cir 2015). As such, an appellate court "lacks
jurisdiction to entertain a purported appeal, or to grant a
certificate of appealability to permit the appeal of, the
district court's transfer order". Id.
Accordingly, when a. habeas petitioner "contends that a
transfer order was erroneous because he believes his petition
or motion is not ' second or successive" he "may challenge the
26
transfer by moving to retransfer the matter to the district
court." Marmolejos V United States, 189 F.3d at 69.
However, in such circumstances, appellate courts "have no
jurisdiction to review the merits of a [nonsuccessive]
petition" because "nothing in the statutory language allows
[the circuit court] to consider the merits of claims raised in
a nonsuccessive application"; James v Walsh, 308 F.3d 162, 169
(2nd Cir 2002)
2. THE SECOND -CIRCUIT'S DEPARTURE FROM THE USUAL AND
ACCEPTED COURSE OF JUDICIAL PROCEEDINGS
In deciding Petitioner's motion for re-transfer, the
Second Circuit so far departed from the accepted and usual
course of judicial proceedings as to call for an exercise of
this Court's supervisory powers.
First, it failed to address the single question which it
had jurisdiction to address; i.e., whether or not the claims
raised in the 2016 Motion were lsuccessiveh1.
Second, instead of addressing the single question that
the statute provides circuit courts with jurisdiction to
consider, it denied Petitioner's request for re-transfer, by
reviewing the merit of the claims raised in the 2016 Motion,
which it lacked the jurisdiction to consider.
Third, because of these failure, the Second Circuit's
decision has foreclosed any review of a constitutional claim
that arose only aftr the completion of Petitioner's first §
2255 motion, thereby raising a serious constitutional question
with respect to the Suspension Clause of the United States
27
Constitution, Art. 1, § 9, ci. 2.
IV. THIS CASE PRESENTS IMPORTANT QUESTIONS OF FEDERAL LAW,
WHICH HAVE NOT BEEN, BUT SHOULD BE, SETTLED BY THE COURT
This Court's past precedents do not conclusively address
the issues central to this dispute., including:
*
Whether the exception to 28 U.S.C. § 2244(b) for a
second application raising a claim that would have been unripe
had the petitioner presented it in his/her first petition,
which the Court created in Panetti, also applies in the
context of 28 U.S.C. § 2255(h)
*
What remedy is available to a habeas petitioner who
contends, a district court's transfer order (to a circuit court
for successive authorization under 28 U.S.C. H 2244(b) or
2255(h)) is erroneous because the application is not
"successive".
*
Whether the AEDPA'creates a duty on the part of circuit
courts when a district court erroneously transfers ' a pro se
litigant's nonsuccessive motion or petition to ,a court of
appeals for "successive" authorization under 28 U.S.C. §
2244(b) or § 2255(h).
This case evinces confusion and a lack of uniformity
amongst the lower courts concerning the extent to which the
exception created in Panetti is available in the context of §
2255(h), the procedure to remedy a district court's erroneous
transfer of a nonsuccessive application to an circuit court
for successive authorization, and the circuit court's duties
in such an instance.
KRI
Clarification of these issues is of significant
importance to clarify the. law and to obtain uniform
application of this Court's successive interpretations in the
context of § 2255(h), which is necessary to avoid to
decisions, like the. one here, that foreclose any review of
constitutional claims that arise after the completion of a
petitioners' first § 2255 motion, thereby raising serious
constitutional questions with respect to the Suspension Clause
of the United States Constitution, Art. 1, § 9, ci. 2.
CONCLUSION
The petition for a writ of certiorari should be granted.
Respectfully submitted,
1sf! Gjur
Date: February 12, 2018
30
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