Free Order of Transfer-USCA - District Court of Connecticut - Connecticut

Case 3:00-cr-00069-AHN

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UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT UNITED STATES OF AMERICA v. JASON COX : : : : :

Crim. No. 3:00cr69(AHN)

RULING ON MOTION FOR RELIEF FROM JUDGMENT Now pending before the court is petitioner Jason Cox's ("Cox") motion for leave to amend his petition under 28 U.S.C. § 2255 [doc. # 318]. For the reasons given below, the court

construes Cox's motion for relief from judgment as a second § 2255 petition, and as such, transfers it to the Second Circuit for a determination as to whether Cox may proceed with the petition in this court. FACTS AND PROCEDURAL HISTORY The court assumes the parties' familiarity with the facts and procedural history underlying this case and only relates those facts necessary to address the instant motion. On January 23, 2001, a jury convicted Cox of one count of conspiracy to possess with intent to distribute more than fifty grams of cocaine base in violation of 21 U.S.C. §§ 846 and 841(b)(1)(A), seven counts of possession with intent to distribute and distribution of cocaine base in violation of § 841(b)(1)(A), and one count of using and carrying a firearm during and in relation to a drug-trafficking crime, in violation of 18 U.S.C. § 924(c). Following Cox's conviction, the court

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sentenced him to a total term of 420 months of imprisonment. Second Circuit affirmed his conviction and sentence. United

The

States v. Cox, 324 F.3d 77, 79 (2d Cir. 2003); United States v. Cox, 59 F. App'x 437, 438 (2d Cir. 2003). In 2003, Cox filed a habeas petition pursuant to 28 U.S.C. § 2255, which sought to overturn his conviction on the grounds that he received ineffective assistance of counsel, the government presented insufficient evidence for the jury to convict him on two counts, and the government knowingly used false and perjured testimony to obtain his conviction. Before

the court ruled on his petition, Cox filed two motions to amend the petition, which supplemented these arguments. The court

granted both motions to amend, and after considering all the arguments in the petition and the motions to amend, denied the petition on the merits. Cox did not appeal, and therefore, the

court's ruling became final. Now, almost two years after the court denied Cox's § 2255 petition, Cox has filed a third motion to amend his petition. now seeks to attack his sentence on two other grounds: first, that his conviction on the § 924(c) count was unconstitutional under the Supreme Court's recent decision in Watson v. United States, 128 S. Ct. 579, 586 (2007); and second, that the court He

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violated his Sixth Amendment right to a jury trial by making findings at sentencing.1 DISCUSSION Although Cox styles the present motion as a motion to amend his § 2255 petition, the motion is most appropriately construed as a second § 2255 petition because the court has already considered and decided a previous § 2255 petition and Cox now raises additional arguments collaterally attacking his sentence. See, e.g., Whiting v. United States, No. 97-2033, 1998 WL 1281294, at *2 n.1 (1st Cir. June 26, 1998) (upholding a district court's dismissal of a post-adjudication motion to amend a § 2255 petition as a successive petition). Moreover, because Cox's

motion to amend raises new arguments relating to his underlying criminal conviction and sentence and does not challenge the sufficiency of the court's ruling on his original § 2255 petition, the present motion cannot reasonably be construed as a motion to reconsider the court's previous ruling under Fed. R. Civ. P. 60(b). Harris v. United States, 367 F.3d 74, 77 (2d Cir.

2004) (stating that "relief under Rule 60(b) is available with

Cox also argues that he is entitled to a two-level reduction in his sentence by virtue of the Sentencing Commission's Amendment 706, which retroactively lowered terms of imprisonment defendants convicted of offenses involving crack cocaine. The Clerk docketed this as a separate motion for reduction in sentence pursuant to 28 U.S.C. § 3582(c) [Doc. # 278], and therefore, the court separately considers whether Cox is entitled to that relief. -3-

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respect to a previous habeas proceeding only when the Rule 60(b) motion attacks the integrity of the habeas proceeding and not the underlying criminal conviction"). So construed, the court concludes that the merits of the petition cannot be considered at this time because Cox has not sought authorization from the Second Circuit to bring a successive petition. The Anti-terrorism and Effective Death

Penalty Act ("the AEDPA"), codified in part at 28 U.S.C. § 2255, "requires that an applicant who wishes to file a successive petition first 'move in the appropriate court of appeals for an order authorizing the district court to consider the application.'" Haouari v. United States, 510 F.3d 350, 352 (2d Because "the

Cir. 2007) (quoting 28 U.S.C. § 2244(b)(3)(A)).

authorization requirement [for second or successive habeas petitions] is jurisdictional and . . . cannot be waived," Torres v. Senkowski, 316 F.3d 147, 149 (2d Cir. 2003), the court does not have jurisdiction to reach the merits of Cox's claims. See,

e.g., United States v. Smith, No. 1:92-cr-0262 (LEK), 2008 WL 84593, at *1 (N.D.N.Y. Jan. 7, 2008). Nevertheless, dismissal is not necessary. In situations

such as this ­ where a petitioner has not moved in the Second Circuit for permission to file a successive petition and instead files that petition directly with the district court - the Second Circuit has instructed the district court to transfer the case to

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it for a determination of whether the petition warrants such authorization. See Liriano v. United States, 95 F.3d 119, 123

(2d Cir. 1996) (stating that a district court "should transfer the [successive] petition . . . to th[e Second Circuit] in the interest of justice pursuant to [28 U.S.C.] § 1631"); see generally Jiminian v. Nash, 245 F.3d 144, 148 (2d Cir. 2001) (discussing transfer procedure). Therefore, in accordance with

that instruction and for the purpose of allowing Cox to seek authorization to bring this petition, the court transfers this petition to the Second Circuit pursuant to 28 U.S.C. § 1631. CONCLUSION For the foregoing reasons, the court CONSTRUES Cox's motion to amend his § 2255 petition [doc. # 318] as a successive § 2255 petition and, so construed, TRANSFERS the petition to the Court of Appeals for the Second Circuit pursuant to 28 U.S.C. § 1631 for a determination as to whether Cox may bring the petition in this court. To the extent Cox seeks a certificate of

appealability of this ruling, the court sua sponte DENIES Cox a certificate of appealability because he has not made a substantial showing of the denial of a constitutional right. Eltayib v. United States, 294 F.3d 397, 400 (2d Cir. 2002). See

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SO ORDERED this 27th day of August 2008, at Bridgeport, Connecticut.

/s/ Alan H. Nevas United States District Judge

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