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Fuller v. United States ( 2016 )


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  • 15-3006
    Fuller v. United States
    UNITED STATES COURT OF APPEALS
    FOR THE S ECOND CIRCUIT
    _______________
    August Term, 2015
    (Submitted: February 29, 2016         Decided: March 5, 2016)
    Docket No. 15-3006
    ________________________________________________________
    SHELDON FULLER,
    Petitioner,
    —v.—
    UNITED STATES OF AMERICA,
    Respondent.
    ________________________________________________________
    Before: KATZMANN, Chief Judge; SACK and LOHIER, Circuit Judges.
    Petitioner moves for remand of his 
    28 U.S.C. § 2255
     motion, which the
    district court transferred to this Court as successive. We conclude that the § 2255
    motion was properly transferred to this Court as successive because it was filed
    after the adjudication of Petitioner’s first § 2255 motion became final. MOTION
    DENIED.
    _______________
    For Petitioner:                        Sheldon Fuller, pro se, White Deer, PA.
    For Respondent:                        Michael A. Levy, Andrew Douglas Beaty,
    Assistant United States Attorneys, for Preet
    Bharara, United States Attorney for the
    Southern District of New York, New York,
    NY.
    _______________
    PER CURIAM:
    Petitioner Sheldon Fuller, proceeding pro se, moves for remand of his third
    
    28 U.S.C. § 2255
     motion, which the district court transferred to this Court as
    successive. Fuller argues that the § 2255 motion is not successive. We conclude
    that the § 2255 motion was properly transferred to this Court as successive
    because it was filed after the adjudication of his first § 2255 motion became final.
    In December 2010, Fuller filed his first § 2255 motion challenging his
    conviction for murder and related crimes. In November 2011, the district court
    denied Fuller’s motion on the merits. In February 2013, this Court denied a
    certificate of appealability (“COA”) and dismissed Fuller’s appeal. Fuller did not
    petition the Supreme Court for certiorari, and the adjudication therefore became
    final 90 days later in May 2013. See 
    28 U.S.C. § 2101
    (c); Pena v. United States, 
    534 F.3d 92
    , 94 (2d Cir. 2008).
    In March 2013, before the denial of his first § 2255 motion became final,
    Fuller filed a second § 2255 motion. In November 2013, the district court denied
    Fuller’s second § 2255 motion on the merits. In September 2014, this Court
    denied a COA and dismissed Fuller’s appeal. Fuller timely petitioned the
    Supreme Court for certiorari, which was denied in April 2015.
    In January 2015, while the petition for certiorari on his second § 2255
    motion was pending, Fuller filed the instant, third § 2255 motion. The district
    court transferred the motion to this Court as successive. Fuller now moves for
    remand, arguing that the third § 2255 motion is not successive because it was
    filed during the pendency of his second § 2255 motion.
    “[T]he law allows every petitioner ‘one full opportunity’ for collateral
    review.” Whab v. United States, 
    408 F.3d 116
    , 118 (2d Cir. 2005) (quoting Ching v.
    United States, 
    298 F.3d 174
    , 177 (2d Cir. 2002)). Under the Antiterrorism and
    Effective Death Penalty Act (“AEDPA”), after a petitioner has had that “one full
    opportunity,” he must obtain authorization from this Court before filing a
    successive § 2255 motion. 
    28 U.S.C. §§ 2244
    (b)(3)(A), 2255(h). In order, however,
    for a § 2255 motion to be considered successive, it must have been filed after the
    adjudication of a prior § 2255 motion has become “final.” See Ching, 
    298 F.3d at 177
    . A § 2255 motion does not become “final until [the] petitioner’s opportunity
    to seek review in the Supreme Court has expired.” Whab, 
    408 F.3d at 120
    .
    Because Fuller has had one full opportunity for collateral review, which
    reached final adjudication prior to commencement of the present proceeding, his
    instant § 2255 motion is successive. 1 The adjudication of Fuller’s first § 2255
    motion became final in May 2013 when the time to file a petition for certiorari in
    the Supreme Court expired, thus exhausting one full opportunity for collateral
    review. Fuller’s instant § 2255 motion, filed in January 2015, is therefore
    successive because it was “filed subsequent to the conclusion of ‘a proceeding
    that counts as the first.’” Ching, 
    298 F.3d at 177
     (quoting Littlejohn v. Artuz, 
    271 F.3d 360
    , 363 (2d Cir. 2001)). We decline to adopt Fuller’s position because it
    would permit a petitioner to prevent the adjudication of an initial habeas petition
    from ever becoming final by extending the first habeas proceedings through an
    1Whether Fuller’s second § 2255 motion was successive is not currently at issue, but we note that it
    differed from the third § 2255 motion in that the second motion was filed before the adjudication of
    Fuller’s first § 2255 motion became final.
    indefinite number of new petitions. Such a position is contrary to this Court’s
    gatekeeping function and AEDPA. 2
    Accordingly, for the foregoing reasons, Petitioner’s motion for remand is
    DENIED. Petitioner is advised that this proceeding will be dismissed unless he
    files, within 30 days of the date of this decision, a motion for leave to file a
    successive § 2255 motion.
    2We note that this case differs from United States v. MacDonald, 
    641 F.3d 596
    , 615–16 (4th Cir. 2011), where
    the Fourth Circuit concluded that a petitioner’s motion to add a claim to a pending, authorized second §
    2255 motion was not a successive third § 2255 motion. The Fourth Circuit reasoned that the motion to
    add a claim was more properly considered a motion to amend, and was therefore governed by Federal
    Rule of Civil Procedure 15. Id. at 616. Nothing in this case limits a petitioner’s ability to move to amend a
    habeas petition pending in the district court under Rule 15. Fuller’s third § 2255 motion cannot be
    deemed a motion to amend the second § 2255 motion because it was filed after the second § 2255 motion
    was denied by the district court, and, thus, no motion that could be amended was pending. See Ching, 
    298 F.3d at 177
     (“[I]n general, when a § 2255 motion is filed before adjudication of an initial § 2255 motion is
    complete, the district court should construe the second § 2255 motion as a motion to amend the pending §
    2255 motion.”).
    

Document Info

Docket Number: Docket 15-3006

Judges: Katzmann, Sack, Lohier

Filed Date: 3/7/2016

Precedential Status: Precedential

Modified Date: 11/5/2024