The opinion of the court was delivered by: John G. Koeltl, District Judge:
MEMORANDUM OPINION AND ORDER OF TRANSFER
The Court has received the attached ex parte motion by the petitioner for "Vacatur of Judgment of Conviction grounded upon ab ovo deficit of interstate [§ 1341] jurisdiction over international deliverances [via air cargo export], divesting Federal Courts of adjudicatory powers." As explained below, the Court determines that the petitioner's motion is a successive petition for habeas corpus within the meaning of the Anti-Terrorism and Effective Death Penalty Act (AEDPA), and therefore in the interests of justice transfers the motion to the Court of Appeals for the Second Circuit pursuant to 28 U.S.C. § 1631. See Liriano v. United States, 95 F.3d 119, 123 (2d Cir. 1996).
Under the AEDPA, "[b]efore a second or successive application [for habeas corpus] . . . is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application." 28 U.S.C. § 2244(b)(3)(A); see also id. at § 2255(h). This requirement includes applications under 28 U.S.C. § 2255 to vacate, set aside or correct a sentence. See, e.g., Negron v. United States, 394 F. App'x. 788, 792 (2d Cir. 2010); Liriano, 95 F.3d at 122-23.
The petitioner has already filed one petition for habeas corpus pursuant to 28 U.S.C. § 2255, which was denied by this Court. See Viertel v. United States, No. 08 Civ. 7512, 2009 WL 22863 (S.D.N.Y. Jan. 5, 2009), Docket No. 3. The Court of Appeals for the Second Circuit denied the petitioner's motion for a certificate of appealability from this Court's denial of the petitioner's § 2255 petition in November 2009. See Viertel v. United States, No. 08 Civ. 7512, Docket No. 7.
The issue is whether the petitioner's current motion for "Vacatur of Judgment of Conviction," which is not explicitly styled as a petition for habeas corpus pursuant to § 2255, should be construed as one, such that it is "a second or successive petition" within the meaning of the § 2244. Where a petitioner has already had a § 2255 motion denied on the merits, a district court may construe the petitioner's subsequent post-conviction motions to vacate the petitioner's sentence as successive § 2255 petitions without providing the petitioner with prior notice and the opportunity to withdraw the subsequent post-conviction motion. Jiminian v. Nash, 245 F.3d 144, 148 (2d Cir. 2001) (Sotomayor, J.); see also Ching v. United States, 298 F.3d 174, 176 (2d Cir. 2002) (Sotomayor, J.).
Our Court of Appeals has explained that "§ 2255 is generally the proper vehicle for a federal prisoner's challenge to his conviction and sentence, as it encompasses claims that 'the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.'" Jiminian, 245 F.3d at 146-47 (quoting 28 U.S.C. § 2255).
The current motion plainly seeks to attack the petitioner's underlying conviction. The petitioner argues in substance that his conviction was invalid "ab ovo" because the "interstate" element of the mail fraud statute, 18 U.S.C. § 1341, was not satisfied in this case. (Pet's. Mem. at 1-7.) The petitioner claims that the Court lacked jurisdiction over him, and asks for "vacatur of the [j]udgment of conviction and for vacatur of the underlying indictment." (Pet's Mem. at 10.) Because the petitioner's motion is in substance a collateral attack on his underlying conviction, it should be construed as a successive petition pursuant to § 2255, and transferred to the Court of Appeals pursuant to 28 U.S.C. § 1631 for a determination of whether the petitioner may proceed in this Court. Liriano, 95 F.3d at 123.
The Clerk of the Court is directed to transmit this Order and the attached motion to the Court of Appeals for the Second Circuit pusruant to 28 U.S.C. § 1631.
[Editor's Note: Motion unavailable]
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