United States District Court, D. Rhode Island
WILLIAM E. SMITH, CHIEF JUDGE.
matter is before the Court on a motion to be resentenced (ECF
No. 321, “Motion to Be Resentenced”) filed by
Defendant Jose Dume, Jr. For the reasons stated herein, the
Court treats the Motion to Be Resentenced as a second or
successive motion to vacate sentence pursuant to 28 U.S.C.
§ 2255 and dismisses it without prejudice to being
refiled if and when Dume receives permission from the First
Circuit to file it in this Court.
filed the Motion to Be Resentenced on September 16, 2019. He
seeks resentencing based on the Supreme Court's recent
decision in United States v. Davis, 139 S.Ct. 2319
(2019), which held that the “residual clause” in
18 U.S.C. § 924(c)(3)(B) was unconstitutionally vague.
Id. at 2336.
has challenged his sentence before. He filed a motion to
vacate, set aside, or correct sentence pursuant to 28 U.S.C.
§ 2255 (ECF No. 315, “First Motion to
Vacate”) on July 16, 2018. On July 26, 2019, the Court
denied the First Motion to Vacate as untimely (ECF No. 320).
abundantly clear from the current Motion to Be Resentenced
that Dume is again challenging the validity of his sentence.
“[A]ny motion filed in the district court that imposed
the sentence, and substantively within the scope of §
2255 ¶ 1, is a motion under § 2255, no matter what
title the prisoner plasters on the cover.” Trenkler
v. United States, 536 F.3d 85, 97 (1st Cir. 2008)
(citing 28 U.S.C. § 2255(a)(additional citation
omitted)); see also Id. (“On its face,
the petition is brought on behalf of a federal prisoner still
in custody and challenges his sentence as unauthorized under
the statutes of conviction. This is a classic habeas corpus
scenario, squarely within the heartland carved out by
Congress in section 2255.”); Pierce v.
Spencer, Civil Action No. 05-10292-RWZ, 2006 WL 2121912,
at *1 (D. Mass. July 28, 2006) (“[I]t is the substance
of the petition, rather than its form, that governs.”
(quoting Cook v. N.Y. State Div. of Parole, 321 F.3d
274, 278 (2d Cir. 2003))). Therefore, the Court construes
Dume's Motion to Be Resentenced as a § 2255 motion,
and, as such, it is subject to the restrictions imposed under
the Anti-Terrorism and Effective Death Penalty Act
(“AEDPA”). Trenkler, 536 F.3d at 97
(“[C]ourts regularly have recharacterized imaginatively
captioned petitions to reflect that they derive their essence
from section 2255 and, thus, must satisfy that section's
“imposed significant new constraints on proceedings
under section 2255. . . . [F]or example, AEDPA required a
federal prisoner who sought to prosecute a second or
successive section 2255 petition to obtain pre-clearance, in
the form of a certificate, from the court of appeals.”
Id. at 96 (citing 28 U.S.C. §
2255(h)); see also Stewart v.
Martinez-Villareal, 523 U.S. 637, 641 (1998) (“In
AEDPA, Congress established a ‘gatekeeping'
mechanism for the consideration of ‘second or
successive habeas corpus applications' in the federal
courts.” (quoting Felker v. Turpin, 518 U.S.
651, 657 (1996))). This provision “strip[s] the
district court of jurisdiction over a second or successive
habeas petition unless and until the court of appeals has
decreed that it may go forward.” Pratt v. United
States, 129 F.3d 54, 57 (1st Cir. 1997). Section 2255(h)
applies so long as the earlier petition was decided on the
merits. See Id. at 60.
denial on timeliness grounds is considered a denial on the
merits for AEDPA purposes. See Cook v. Ryan, Civil
Action No. 12-11840-RWZ, 2012 WL 5064492, at *2 (D. Mass.
Oct. 15, 2012) (holding that dismissal for failing to comply
with statute of limitations was decision on merits and
collecting cases). Therefore, because Dume's First Motion
to Vacate was denied on the merits, his Motion to Be
Resentenced is a second or successive motion to vacate
sentence under § 2255 and is subject to AEDPA's
gatekeeping restrictions. Pierce v. Wall, C.A. No.
08-72-WES, 2008 WL 896148, at *1 (D.R.I. Apr. 2, 2008)
(noting that dismissal of earlier petition as time-barred
rendered subsequent petition “successive or second,
” requiring authorization from the court of appeals
(citing Pratt, 129 F.3d at 57)).
cannot file a second or successive motion to vacate pursuant
to § 2255 in this Court without first seeking, and
receiving, leave from the First Circuit to do so. See 28
U.S.C. § 2255(h). The record does not reflect, nor does
Dume assert, that he has petitioned the Court of Appeals for
authorization for the Court to consider the Motion to Be
Resentenced. Therefore, the Court must either transfer the
Motion to Be Resentenced to the First Circuit or dismiss the
motion. See 1st Cir. R. 22.1(e); see also Bucci v. United
States, 809 F.3d 23, 26 (1st Cir. 2015) (“When
faced with a second or successive § 2255 petition that
has not been authorized by the court of appeals, a district
court must either dismiss the petition or transfer it to the
court of appeals.”); Trenkler, 536 F.3d at 98.
The Court chooses the latter course and dismisses the Motion
to Be Resentenced until such time as Dume obtains leave from
the Court of Appeals to file it in this Court. See 28 U.S.C.
on the foregoing, Dume's Motion to Be Resentenced (ECF
No. 321) based on Davis is DISMISSED without prejudice to
being refiled if and when Dume obtains authorization from the
First Circuit to file it in this Court.