The opinion of the court was delivered by: Scullin, Chief Judge
MEMORANDUM-DECISION AND ORDER
On November 14, 1994, Petitioner Tyrone Hines pled guilty to the seventh count in a multi-count indictment which a federal grand jury sitting in the Northern District of New York had returned against him and others. See United States v. Hines, No. 5:94-CR-150 (N.D.N.Y.) ("Action No. 94-CR-150"), Dkt. No. 232.*fn1 On May 9, 1995, this Court sentenced Petitioner to a term of life imprisonment on his CCE conviction. See id., Dkt. No. 344. Petitioner appealed that sentence; and, on February 26, 1996, the Second Circuit denied his appeal and affirmed the life sentence in an unpublished decision. See United States v. Shelton, 100 F.3d 944 (2d Cir. 1996). Thereafter, the Supreme Court denied Petitioner's application for a writ of certiorari. See Hines v. United States, 519 U.S. 843 (1996).
On September 29, 1999, Petitioner filed a Motion to Vacate, Set Aside or Correct his sentence pursuant to 28 U.S.C. § 2255. See Hines v. United States, No. 5:99-CV-1582 ("Action No. 99-CV-1582"), Dkt. No. 1. On January 28, 2001, this Court issued a Decision and Order, in which it denied that application. See id., Dkt. No. 11 ("January 2001 Order"). The Second Circuit affirmed that decision in an unpublished order issued on May 29, 2003, see Hines v. United States, 66 Fed. Appx. 257 (2d Cir. May 29, 2003); and the Supreme Court denied Petitioner's application for certiorari review of that decision, see Hines v. United States, 540 U.S. 1205 (2004).
Currently before the Court is Petitioner's Motion for Relief From Judgment or Order, pursuant to Rule 60(b)(4), (5) and (6) of the Federal Rules of Civil Procedure.*fn2 See Action No. 99-CV-1582, Dkt. No. 24. Petitioner has attached a memorandum of law to that application. See Attachment to Rule 60(b) Motion ("Supporting Mem.").
In support of his Rule 60(b) motion, Petitioner argues that his conviction and/or sentence is invalid in light of the Supreme Court's decisions in Apprendi v. New Jersey, 530 U.S. 466 (2000), and Blakely v. Washington, 542 U.S. 296 (2004).*fn3 Petitioner asserts several theories in support of this argument. Initially, he claims that his conviction is invalid because the Supreme Court's holdings in Apprendi and Blakely establish that his attorney, the prosecutor and this Court failed to "understand [the] essential elements of the crime to which [Petitioner] was charged [sic]." See Supporting Mem. at iii. Petitioner next argues that his "lack of knowledge" regarding the elements of the count in the Indictment to which he pled guilty "robbed him of the opportunity to make a reasonable informed decision as to whether to enter a guilty plea." See id. at iv. Similarly, Petitioner argues that "[t]his lack of knowledge . . . prevented counsel . . . from offering his informed opinion as to what plea should be entered. And therefore, rendered counsel's performance constitutionally ineffective . . . ." See id. Petitioner further contends that his sentence is "unconstitutional" because it was "based upon facts not encompassed within the jury's verdict, and beyond the maximum permitted by that verdict . . . ."*fn4 See id. at 3. Thus, Petitioner argues that this Court must retroactively apply the holding of Blakely to his benefit, see Supporting Mem. at 5-10, and seems to claim that his underlying criminal conviction is invalid under Blakely because he was "denied a right to a jury trial and due process of law" in the underlying criminal matter. See id. at 9 (citations omitted). Finally, Petitioner contends that the Indictment to which he pled guilty is void under Blakely, see Supporting Mem. at 11, and that, as a result, the Court must set aside his conviction. See id. at 11-13.
In Harris v. United States, 367 F.3d 74 (2d Cir. 2004), the Second Circuit noted that federal district courts must examine Rule 60(b) motions filed in the context of § 2255 applications in order to ascertain whether the claims asserted therein "'relate to the integrity of the federal habeas proceeding [or] the integrity of the . . . criminal trial.'" Id. at 80 (quotation omitted); see also Gitten v. United States, 311 F.3d 529, 531-32 (2d Cir. 2002)). Where the Rule 60(b) application challenges determinations made in the underlying criminal matter rather than the prior habeas proceeding, the Rule 60(b) motion "is in actuality a § 2255 petition and must meet the criteria set forth in the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA")." Harris v. United States, 357 F. Supp. 2d 524, 527 (N.D.N.Y. 2005) (footnote omitted); see also Brooks v. United States, No. CV-99-2855, 2005 WL 2076565, *6 (E.D.N.Y. Aug. 26, 2005).
It is clear from Petitioner's submissions that he is challenging the propriety of his conviction and/or sentence in the underlying criminal matter rather than the integrity of the civil proceedings related to Action No. 99-CV-1582. See Supporting Mem. at iii, 11 (Petitioner's challenges to the propriety of his underlying criminal conviction); id. at 2 (Petitioner's challenge to the sentence that the Court imposed upon him). Thus, it is proper for the Court to consider Petitioner's application as a second or successive § 2255 petition; and, therefore, he must satisfy the criteria set forth in the AEDPA relating to such applications, including the requirement that, prior to pursuing a second or successive § 2255 application, he "must first file an application with the appropriate court of appeals for an order authorizing the district court to consider it." Harris, 357 F. Supp. 2d at 527 (citing 28 U.S.C. § 2255; 28 U.S.C. § 2244(b)(3)(A)) (footnote omitted); Brooks, 2005 WL 2076565, at *6 (where the petitioner filed a Rule 60(b) motion challenging the underlying criminal proceeding, the court required him to obtain "the authorization of the Second Circuit Court of Appeals for leave to file a second or successive § 2255 petition" (footnote omitted)).
Ordinarily, "when a petitioner ignores the 1996 amendment [to § 2255] by filing a second or successive § 2255 petition without first obtaining [Court of Appeals'] authorization, 'the district court should transfer the petition or motion to [the Second Circuit] in the interest of justice.'" Corrao v. United States, 152 F.3d 188, 190 (2d Cir. 1998) (quoting Liriano, 95 F.3d at 123). However, where a district court concludes that a Rule 60(b) motion should be construed as a second or successive § 2255 motion, transferring the Rule 60(b) motion to the Second Circuit without notice to the petitioner "risks adverse consequences that [the petitioner] might wish to avoid." Gitten, 311 F.3d at 533. Specifically, the Gitten court noted that such a sua sponte transfer without prior notice to the petitioner might have the following adverse consequences:
First, the converted portion of his motion will be tested against the strict gate-keeping standards before he has framed his allegedly new challenges in a way that presents his best chance of meeting those standards. The risk is that a portion of his motion perhaps never intended to be a second or successive collateral attack will be summarily rejected by this Court, whereas a properly crafted second collateral attack might have survived gate-keeping scrutiny. Second, premature treatment of the converted portion of the 60(b) motion as a second collateral attack risks subjecting the prisoner not only to summary denial of that challenge but also to summary denial of any subsequent (i.e., third) challenge as an abuse of the writ.
The Gitten court further noted that a proper means for a district court to address a Rule 60(b) motion, which in reality is a second or successive § 2255 motion, is to "simply deny, as beyond the scope of Rule 60(b), . . . the portion believed to present new attacks on the conviction." Id. at 534.
Since Petitioner's entire Rule 60(b) motion is properly considered a second or successive motion under § 2255, whether viewed as one challenging the sentence that this Court imposed on him or one contesting his underlying conviction, this Court denies Petitioner's Rule 60(b) motion on the ground that it is beyond the scope of Rule 60(b).*fn5 See Gitten, ...