Opinion
No. 3:00-CR-0302-M(01), No. 3:02-CV-1587-M
August 14, 2002
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636(b), and an Order of the Court in implementation thereof, subject cause has previously been referred to the United States Magistrate Judge. The findings, conclusions, and recommendation of the Magistrate Judge are as follows:
FINDINGS AND CONCLUSIONS
Nature of the Case: This is a motion to vacate filed by a federal inmate pursuant to 28 U.S.C. § 2255.
Parties: Movant is a currently incarcerated in Guadalupe County Jail. Respondent is the United States of America.
Statement of the Case: On October 11, 2000, movant pled guilty to one count of bank fraud pursuant to a plea agreement. In May 2001, the Court sentenced him to thirteen months confinement followed by five years supervised release. He thereafter filed a motion to vacate under 28 U.S.C. § 2255. On June 25, 2002, the Court denied that motion. On July 26, 2002, movant filed the instant motion. The Court must determine whether the motion is successive within the meaning of § 2255 and whether movant should be permitted to file it.
Successive Motion: The Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. 104-132, 110 Stat. 1214 limits the circumstances under which a federal prisoner may file a second or successive motion to vacate, set aside, or correct his sentence in federal court. "[A] subsequent motion is second or successive' when it: "1) raises a claim challenging the petitioner's conviction or sentence that was or could have been raised in an earlier petition; or 2) otherwise constitutes an abuse of the writ.'" United States v. Orozco-Ramirez, 211 F.3d 862, 867 (5th Cir. 2000) (quoting In re Cain, 137 F.3d 234, 235 (5th Cir. 1998)).
From a review of the claims raised in the instant motion, the Court concludes that the motion is successive within the meaning of the AEDPA and Orozco-Ramirez. Accordingly, petitioner must "move in the appropriate court of appeals for an order authorizing the district court to consider the application." 28 U.S.C. § 2244(b)(3)(A). A three-judge panel of the court of appeals must first determine whether this Court should consider the instant motion. Id. § 2244(b)(3)(B). The panel will authorize the filing of a second or successive motion only upon a prima facie showing that the motion is based on: (1) 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 him guilty of the offense; or (2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable. See id. § 2244(b)(3)(C), 2255.
The Fifth Circuit has not issued an order authorizing this Court to consider the successive motion to vacate. Movant must obtain such an order before he files the motion in this Court.
Although it may be appropriate for the Court to dismiss the successive § 2255 motion without prejudice pending review by a three-judge panel of the Fifth Circuit Court of Appeals, it is also appropriate to transfer the successive motion to the Fifth Circuit for a determination of whether movant should be allowed to file the successive motion in the district court. See Henderson v. Haro, 282 F.3d 862, 864 (5th Cir. 2002); In re Epps, 127 F.3d 364, 365 (5th Cir. 1997) (approving the practice of transferring a successive motion to the Circuit and establishing procedures in the Circuit to handle such transfers). A transfer appears more efficient and better serves the interests of justice than a dismissal without prejudice.
RECOMMENDATION
For the foregoing reasons, the undersigned Magistrate Judge hereby recommends that the instant motion to vacate filed pursuant to 28 U.S.C. § 2255 be TRANSFERRED to the United States Court of Appeals for the Fifth Circuit pursuant to Henderson v. Haro, 282 F.3d 862, 864 (5th Cir. 2002) and In re Epps, 127 F.3d 364, 365 (5th Cir. 1997).