Liriano v. U.S.

• Decision Date: 28 August 1996
• Citation: 95 F.3d 119
• Parties: Miguel DeJesus LIRIANO, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee. Docket 96-8030.
• Court: U.S. Court of Appeals — Second Circuit

Page 119

95 F.3d 119

Miguel DeJesus LIRIANO, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

Docket 96-8030.

United States Court of Appeals, Second Circuit.

Aug. 28, 1996.

As Amended Oct. 7, 1996.

Miguel DeJesus Liriano, pro se, Petitioner-Appellant.

Before: MAHONEY, McLAUGHLIN and JACOBS, Circuit Judges.

PER CURIAM:

Petitioner-appellant Miguel DeJesus Liriano purported to file a motion for relief pursuant to 28 U.S.C. § 2255 in the United States District Court for the Southern District of New York on June 17, 1996. His motion contended that the government had violated his Fifth Amendment and Sixth Amendment rights by allowing a potential defense witness to leave the United States, and that his trial counsel had been ineffective in allowing this to occur. It also asserted that his application should not be deemed impermissibly successive to a prior § 2255 motion that he had filed because at the time the prior motion was filed, Liriano had lost his trial transcript and could not present the grounds advanced in his present motion without it. Finally, Liriano argued that an evidentiary hearing on his present § 2255 motion was required.

On July 18, 1996, the district court, Thomas P. Griesa, Chief Judge, issued a "transfer order" that stated in pertinent part:

The Court's records show that petitioner has brought a previous application for relief under 28 U.,S.C. § 2255. See Liriano v. United States, 94 Civ. 0557 (JFK). As recently amended, 28 U.S.C. § 2255 provides:

"[a] second or successive motion must be certified as provided in section 2244 by a panel of the appropriate court of appeals to contain--

(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 the movant 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."

Subsection [ (b)(3) ](C) of ... 28 U.S.C. § 2244 states:

"[t]he 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."

Therefore, petitioner must move in the court of appeals for permission to pursue this application. For petitioner's benefit, this Court notes that any motion to the Circuit must show that the new claim being raised by the instant application relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or [that] the claim is based on 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. 28 U.S.C. § 2255.

Since it appears that petitioner submitted the instant application to this court unaware of the recent amendment to the statute requiring the court of appeals to authorize this filing, we transfer this matter to the United States Court of Appeals for the Second Circuit in the interest of justice. 28 U.S.C. § 1631.

The recent amendment to which the district court referred was enacted by the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 (1996) (the "AEDPA"). Section 105 of the AEDPA, 110 Stat. 1220, amends § 2255 to add, inter alia, the following provision:

A 1-year period of limitation shall apply to a motion under this section. The limitation period shall run from the latest of--

(1) the date on which the judgment of conviction becomes final;

(2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action;

(3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or

(4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.

Section 101 of the AEDPA, 110 Stat. 1217, makes a corresponding amendment to 28 U.S.C. § 2244 (adding a new subsection (d)) with respect to petitions for habeas corpus by state prisoners.

Section 105 of the AEDPA also amends § 2255 to provide that:

A second or successive motion must be certified as provided in section 2244 by a panel of the appropriate court of appeals to contain--

(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 the movant 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.

The cross-reference is to § 2244(b)(3), which, as amended by § 106 of the AEDPA, 110 Stat. 1221, provides the following procedural requirements for second or successive petitions by state prisoners seeking habeas corpus that present one or more new grounds for relief: ¹

(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) 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.

(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.

(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.

(E) The grant or denial of an authorization by a court of appeals to file a second or successive application shall not be appealable and shall not be the subject of a petition for rehearing or for a writ of certiorari.

The "requirements of this subsection" to which reference is made in § 2244(b)(3)(C) are that:

A claim presented in a second or successive habeas corpus application under section 2254 that was not presented 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 previously through the exercise of due diligence; and

(ii) the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.

28 U.S.C. § 2244(b)(2).

Liriano's § 2255 motion is clearly a "second or successive motion" within the meaning of § 2255; it raises claims concerning the same conviction to which his prior § 2255 motion was addressed. Subsequent to the issuance of the district court's transfer order, which recited the gatekeeping requirements of the AEDPA, Liriano filed a "supplemental brief" seeking permission to pursue his § 2255 motion in the district court. Liriano's supplemental brief substantially constitutes the motion envisioned by § 2244(b)(3)(A), and will be treated as satisfying the motion requirement. However, his motion does not even arguably satisfy the criteria for relief specified in §§ 2255 and 2244(b)(2); it contends that the AEDPA itself constitutes the "new rule of constitutional law" envisioned by §§ 2255 and 2244(b)(2)(A). Liriano's motion is accordingly denied; his § 2255 motion may not be filed in the district court.

The merits of Liriano's motion would not ordinarily prompt a published opinion. We write, however, to establish the procedure to be followed when, as occurred in this case, a second or successive petition for habeas corpus by a state prisoner, or § 2255 motion by a federal prisoner, is filed in a district court in this circuit unaccompanied by the required § 2244(b)(3) motion.

Chief Judge Griesa cited 28 U.S.C. § 1631 as the authority for the transfer order that he entered in this case. Section 1631, entitled "[t]ransfer to cure want of jurisdiction," provides in pertinent part:

Whenever a civil action is filed in a court ... and that court finds that there is a want of jurisdiction, the court shall, if it is in the interest of justice, transfer such action ... to any other such court in which the action ... could have been brought at the time it was filed ..., and the action ... shall proceed as if it had been filed in ... the court to which it is transferred on the date upon which it was actually filed in ... the court from which it is transferred.

The legislative history of § 1631 indicates that "Congress contemplated that the provision would aid litigants who were confused about the proper forum for review." American Beef Packers, Inc. v. I.C.C., 711 F.2d 388, 390 (D.C.Cir.1983) (per curiam) (citing S.Rep. No. 275, 97th Cong., 2d Sess. 11 (1981), reprinted in 1982 U.S.C.C.A.N. 11, 21). In determining whether a transfer is in the interest of justice, the equities of dismissing a claim when it could be transferred should be carefully weighed. Franchi v. Manbeck, 947 F.2d 631, 634 (2d Cir.1991) (citing Hempstead County and Nevada County Project v. EPA, 700 F.2d...