The opinion of the court was delivered by: GLASSER
GLASSER, United States District Judge:
Orazio Stantini and his co-defendant, Robert Bisaccia, were convicted of conspiracy to commit murder and murder following a jury trial held in this court in November, 1993. Stantini was subsequently sentenced to 324 months in prison and Bisaccia to life in prison.
On April 11, 1994, Stantini, represented by counsel, moved for a new trial based on Rule 33, Fed. R. Cr. P. and 28 U.S.C. § 2255. He claimed that his Sixth Amendment right to counsel was violated because his attorney was laboring under a conflict of interest that adversely affected his representation of Stantini during plea negotiations and thereafter at trial. Following oral argument, his motion was denied in a Memorandum and Order dated April 12, 1995, familiarity with which is assumed. That determination was affirmed by the Court of Appeals in United States v. Stantini, 85 F.3d 9 (2d Cir. 1996).
In this second motion pursuant to 28 U.S.C. § 2255, filed pro se on June 5, 1997, Stantini seeks an order that would vacate or set aside his conviction and sentence. He bases this motion once again on ineffective assistance of counsel and adds a violation of the government's Brady obligations. In a letter response, the Government asserts that this is a second or successive motion, filed without the prior authorization of the Court of Appeals as required by 28 U.S.C. § 2244(b)(3) and requests that this court transfer the motion to the Court of Appeals for the Second Circuit in the interest of justice, pursuant to 28 U.S.C. § 1631 and in accordance with the teaching of Liriano v. United States, 95 F.3d 119, 121 (2d Cir. 1996).
Following the Governments' response, the court received a letter from David Schoen, an attorney in Montgomery, Alabama, who advised that "he had agreed to assist Mr. Orazio Stantini with the litigation of his motion filed pursuant to 28 U.S.C. § 2255." It is unclear whether Mr. Schoen is acting in his capacity as counsel for Mr. Stantini, never having filed a notice of appearance, or merely as a friend. Putting aside the impropriety of a party appearing simultaneously pro se and by counsel, O'Reilly v. N.Y. Times Co., 692 F.2d 863, 868 (2d Cir. 1982); United States v. Mitchell, 137 F.2d 1006, 1010 (2d Cir. 1943), the court will entertain the points raised in reply to the Government's response, which are as follows: (1) Because no civil docket number was assigned to Mr. Stantini's previous motion, it should not be deemed a motion properly filed under 28 U.S.C. § 2255. (2) Since the previous motion was filed prior to the imposition of sentence upon Stantini, it cannot be a § 2255 motion. The caption to § 2255 reads: "Federal custody; remedies on motion attacking sentence." The motion itself is styled as one "to vacate, set aside, or correct sentence by a person in custody." Thus, argues Stantini, since he had not yet been sentenced when his previous motion was filed, it was simply a motion pursuant to Rule 33, Fed. R. Cr. P. and not a prior petition precluding consideration of this one without first invoking the gatekeeping function of the Court of Appeals.
Although Stantini is correct that the caption of § 2255 reads as indicated above and his motion is styled as stated above, for the reasons hereafter discussed, the Government's request that this motion be transferred in accordance with Liriano is granted.
Because the first motion was brought pursuant to § 2255 but before sentence was imposed, the narrow and interesting question is whether this motion is a "second or successive motion" contemplated by section 105 of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") (§ 2255) or a "second or successive habeas corpus petition" contemplated by section 106 of the AEDPA (§ 2254). It is also interesting to note that neither this court's order of April 12, 1995 nor the opinion of the Court of Appeals took cognizance of the fact that the motion they addressed was brought prior to sentence. The Rule 33 prong of the motion was dismissed summarily as being untimely. The § 2255 prong was discussed at some length by both courts. The Court of Appeals introduced its discussion of the issues as follows at 85 F.3d at 12-13:
Following oral argument, but without holding an evidentiary hearing, Judge Glasser denied the motion. The judge ruled that (1) insofar as the motion sought relief under Criminal Rule 33, it was untimely; and (2) insofar as the motion sought relief under § 2255, "the submissions in support of [the motion] are facially insufficient" and therefore "a hearing is not warranted." In support of the latter conclusion, the judge held that Stantini did not establish that, with respect to plea negotiations, Carnesi was laboring under an actual conflict of interest and that Carnesi's alleged concerns about the effect of a Stantini guilty plea upon Mannino in the Southern District case were realistic. Further, Stantini had failed to demonstrate that a plausible alternative defense strategy or tactic had not been pursued at trial because of Carnesi's representation of Mannino.
That court concluded that "the district court did not err in denying an evidentiary hearing." 85 F.3d at 19. That determination is patently a reference to the second paragraph of § 2255, which requires the court to grant a prompt hearing on the motion unless "the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief," and is persuasive in evidencing the belief of both this court and the Court of Appeals that it was a § 2255 motion they were addressing. In this regard, it is significant to note that § 2255 provides in part that:
An appeal may be taken to the court of appeals from the order entered on the motion as from a final judgment on application for a writ of habeas corpus.
Turning first to the contention that because no civil docket number was assigned to Mr. Stantini's previous motion it should not be deemed a petition properly filed under § 2255, calls to mind the wise and oft-cited observation of Justice Holmes that "a page of history is worth a volume of logic." New York Trust Co. v. Eisner, 256 U.S. 345, 349, 65 L. Ed. 963, 41 S. Ct. 506 (1921). The relevant page of history is found in the dissenting ...