The opinion of the court was delivered by: CHARLES HAIGHT, District Judge
MEMORANDUM OPINION AND ORDER
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
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
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.
It is SO ORDERED.