James Urinyi moves for leave to file a "second or successive" motion to vacate his conviction pursuant to 28 U.S.C. § 2255. Urinyi contends that his one prior Section 2255 proceeding in which he sought and obtained permission to file a late notice of appeal based on his attorney's ineffective assistance should not count when determining whether his proposed motion is "second or successive" under the Antiterrorism and Effective Death Penalty Act ("AEDPA"). We hold that Urinyi's prior motion does not count when determining whether his proposed motion is "second or successive" under the AEDPA, and, thus that Urinyi does not require leave of this Court to file the proposed motion in district court. The motion is therefore DENIED.
Submitted: October 19, 2009
Before: WINTER, POOLER, Circuit Judges, and RAKOFF, District Judge.*fn1
James Urinyi, through counsel, moves for leave to file a "second or successive" motion to vacate his conviction, pursuant to 28 U.S.C. § 2255. In a prior Section 2255 proceeding, Urinyi alleged that he had been denied effective assistance of counsel because his attorney had failed to file a timely notice of appeal from his criminal judgment, and was granted relief in the form of an extension of time to file a notice of appeal. The question before us is whether Urinyi's prior successful 2255 motion, which sought only reinstatement of the right to a direct appeal due to ineffective assistance of counsel, renders a subsequent 2255 motion challenging his conviction and sentence "second or successive" under the Antiterrorism and Effective Death Penalty Act ("AEDPA"). We hold that Urinyi's prior motion does not count for purposes of determining whether the proposed motion is "second or successive" under the AEDPA. Urinyi does not require leave of this Court to file the proposed Section 2255 motion in district court.
In June 2004, Urinyi, who was represented by counsel, pleaded guilty to one count of conspiracy to distribute, and possession with intent to distribute, 50 grams or more of methamphetamine, and one count of distributing and possessing with intent to distribute 10 grams of methamphetamine. By judgment entered in December 2004, Urinyi was sentenced to 121 months of incarceration. Urinyi failed to file a notice of appeal of the judgment. Approximately one year later, Urinyi, prose, filed a Section 2255 motion in district court, arguing that he had been denied effective assistance of counsel because his attorney had failed to file a timely notice of appeal, despite Urinyi's explicit instruction that the attorney do so. In January 2007, following an evidentiary hearing, the district court found that Urinyi's attorney had provided ineffective assistance of counsel, granted the 2255 motion, and permitted Urinyi to file a notice of appeal out of time. See Urinyi v. United States, No. 05 Civ. 10696, 2007 WL 259934, at * 1 (S.D.N.Y. Jan. 30, 2007).
On direct appeal, Urinyi argued that his guilty plea was not knowing, voluntary, or sufficient to support his conviction, and that the district court would have imposed a lesser sentence had the United States Sentencing Guidelines been advisory at that time of the sentencing proceeding. We affirmed Urinyi's judgment of conviction in March 2008, but remanded the case to district court for resentencing pursuant to United States v. Crosby, 397 F.3d 103 (2d Cir. 2005). SeeUnited States v. Urinyi, 271 Fed. Appx. 95 (2d Cir. 2008). On remand, the district court declined to resentence Urinyi.
In June 2009, Urinyi, through counsel, filed a second 2255 motion in district court, presenting nine claims attacking his 2004 conviction and sentence. Relying on Urinyi's prior successful 2255 motion, the district court (Kaplan, J.) found that Urinyi's proposed motion was "second or successive" under the AEDPA, and that Urinyi must first obtain leave of this Court in order to properly file it. Thus, the district court transferred the instant motion to this Court.
In September 2009, Urinyi filed in this Court an application for leave to file a successive Section 2255 motion. However, he asserts that the proposed motion is not successive, arguing that since he filed the prior 2255 motion in order to obtain a direct appeal, and not for the purpose of challenging the 2004 conviction and sentence, the prior motion should not count when determining whether the proposed § 2255 motion is successive.
Under the AEDPA, a petitioner incarcerated pursuant to a federal judgment cannot bring a "second or successive" motion for habeas relief, unless he or she obtains permission from a court of appeals. See 28 U.S.C. §§ 2255(h), 2244(b). However, the AEDPA does not define the phrase "second or successive." SeeThomas v. Superintendent/Woodbourne Corr. Facility, 136 F.3d 227, 229 (2d Cir. 1997). In interpreting this phrase, we have looked to the pre-AEDPA abuse-of-the-writ doctrine. SeeJames v. Walsh, 308 F.3d 162, 167 (2d Cir. 2002);Vasquez v. Parrott, 318 F.3d 387, 389-90 (2d Cir. 2003). Under the abuse-of-the-writ doctrine, a petition is considered "second or successive" when "it raises a claim that was, or could have been, raised in an earlier petition." James, 308 F.3d at 167 (citing McCleskey v. Zant, 499 U.S. 467, 493-95 (1991)).
Our recent decisions have addressed the definition of "second or successive" in the context of Section 2254 petitions. See James, 308 F.3d at 167-68; Vasquez, 318 F.3d 389-92. In Vasquez, for instance, we found that "two petitions are not 'successive' under Section 2244 merely because they are both brought by the same prisoner. Rather, to be considered 'successive,' a prisoner's second petition must, in a broad sense, represent a second attack by federal habeas petition on the same conviction." Id. at 390. As we explained,
[W]hile [the] AEDPA restricts the writ of habeas corpus, it nonetheless "ensures every prisoner one full opportunity to seek collateral review." And, it is only after the prisoner has used the allowance of one habeas petition attacking the judgment that the second or ...