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United States District Court, S.D. New York

June 25, 2004.

ERIC PAYNE, Defendant.

The opinion of the court was delivered by: CHARLES HAIGHT, District Judge


This opinion resolves two motions filed by petitioner Eric Payne, currently incarcerated following his conviction after a jury trial in this Court on narcotics charges.

Payne's conviction and sentence were affirmed on direct appeal. United States v. Payne, 63 F.3d 1200 (2d Cir. 1995). Thereafter he filed a petition in this Court under 28 U.S.C. § 2255, raising a number of claims. This Court rejected those claims, Payne v. United States, No. 97 Civ. 2108, 1998 WL 32511 (S.D.N.Y. Jan. 29, 1998), denied Payne's motion for reconsideration, 1998 WL 71652 (S.D.N.Y. Feb. 18, 1998), and refused Payne's request for a certificate of appealability, 1998 WL 160863 (S.D.N.Y. Apr. 7, 1998). The docket sheet reveals that on January 11, 2002, the Second Circuit denied Payne's application for an order authorizing this Court to consider a second or successive motion under § 2255.

  Against that background, Payne has filed two further pro se motions. The first, filed on February 11, 2003, sought an order directing the release to him of the grand jury minutes in the case, a list of the grand jury members "by race, age and job description," and a copy of the indictment. Payne stated in his motion that he had "discovered that error was made in the instant case that has affect [sic] on the substantial rights of petitioner and the requested documents will further point out said violations of the Constitutional Rights of petitioner." He gave no particulars. In a letter brief dated April 4, 2003, the government said it was sending Payne a copy of the indictment, but opposed production of the grand jury documents.

  Payne's second motion was filed on June 13, 2003. He prays for an order reversing his conviction and dismissing the indictment as defective. The government opposes that motion.

  It is entirely clear that the second of these motions is a "second or successive motion" as that phrase is used in 28 U.S.C. § 2255, as amended by the Anti-Terrorism and Effective Death Penalty Act of 1996 (the "AEDPA"). Payne's motion for relief, based as it is upon § 2255, is a "second or successive motion" under AEDPA if "it raises claims concerning the same conviction to which his prior § 2255 motion was addressed," Liriano v. United States, 95 F.3d 119, 122 (2d Cir. 1996), which is the case here. In these circumstances, Liriano directs this Court to "transfer the petition or motion to [the Court of Appeals] in the interest of justice" pursuant to 28 U.S.C. § 1631. Id. at 123. The Court of Appeals then decides whether to certify Payne's latest motion for consideration by this Court, a question that turns upon whether Payne's submission satisfies, in the view of the Second Circuit, the requirements of § 2255 as amended by the AEDPA.

  While Payne's first motion, limited to a request for the grand jury materials, could arguably be regarded as something other than a "second or successive motion" for relief under § 2255, Payne's submission makes it clear that he wishes access to these materials in order to support such a motion, which he presently is not entitled to make. Quite apart from Payne's entitlement in any event to these grand jury materials, which the government resists, I think the proper course is to refer both motions to the Court of Appeals for consideration under the AEDPA amendments to § 2255.

  Accordingly the Clerk of this Court is directed to transfer the files with respect to these motions to the United States Court of Appeals for the Second Circuit in the interest of justice, pursuant to 28 U.S.C. § 1631.



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