Opinion
No. 1:05-cr-00047-JAW
07-09-2020
JOSEPH SCOTT REEVES, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
ORDER AFFIRMING THE RECOMMENDED DECISION OF THE MAGISTRATE JUDGE
On April 22, 2020, Joseph Scott Reeves filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. Place-Holder 2255 Mot. (ECF No. 86) (Def.'s Mot.). Mr. Reeves referred to his motion as a place holder because he has a pending request before the First Circuit Court of Appeals for leave to file a second or successive § 2255 motion. Id., Attach. 1. The United States Magistrate Judge filed with the Court on May 21, 2020, his Recommended Decision on the motion, in which he recommended that the Court transfer the pending § 2255 motion to the First Circuit and deny a certificate of appealability pursuant to Rule 11 of the Rules Governing Section 2255 Cases. Recommended Decision on 28 U .S.C. § 2255 Mot. at 1-4 (ECF No. 87) (Recommended Decision). Mr. Reeves did not file an objection.
Though the docket reflects that this motion was not docketed until April 29, 2020, the prison mailbox rule controls the date of filing of incarcerated individuals' filings under 28 U.S.C. § 2255. See Morales-Rivera v. United States, 184 F.3d 109, 109-10 (1st Cir. 1999) (holding that the prison mailbox rule applies to motions under 28 U.S.C. § 2255). Mr. Reeves' motion includes a declaration that he placed his motion in the mail on April 22, 2020, see Def.'s Mot. at 12, and the Court adopts that date as the date of filing.
The Court reviewed and considered the Magistrate Judge's Recommended Decision, together with the entire record, and made a de novo determination of all matters adjudicated by the Magistrate Judge's Recommended Decision. The Court concurs with the Magistrate Judge's recommendation to transfer the motion to the First Circuit for the reasons set forth in his Recommended Decision.
The Court declines to rule on Mr. Reeves' anticipated request for a certificate of appealability. Under 28 U.S.C. § 2255(h), as this is Mr. Reeves' second or successive habeas corpus petition, the decision whether to certify his second or successive motion by statute rests with the Court of Appeals, not this Court. As the question of whether to issue a certificate of appealability touches directly upon the question now pending before the First Circuit and because the First Circuit has the authority to rule on the merits of that issue, the Court concludes that it is wiser in deference to the First Circuit to dismiss the certificate of appealability question without prejudice. See 28 U.S.C. § 2253(c)(2).
1. The Court AFFIRMS the Recommended Decision of the Magistrate Judge (ECF No. 87) with respect to the transfer of the pending § 2255 motion.
2. The Court TRANSFERS the Joseph Scott Reeves' Place-Holder 2255 Motion (ECF No. 86) to the First Circuit Court of Appeals.
3. The Court DISMISSES without prejudice the question of whether a certificate of appealability should issue.
SO ORDERED.
/s/ John A. Woodcock, Jr.
JOHN A. WOODCOCK, JR.
UNITED STATES DISTRICT JUDGE Dated this 9th day of July, 2020