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Marmolejos v. United States

United States Court of Appeals, Second Circuit

June 4, 2015

THOMAS MARMOLEJOS, Petitioner-Appellant, -
v.
- UNITED STATES OF AMERICA, Respondent-Appellee

Motion Submitted January 12, 2015.

Motion by petitioner for a certificate of appealability to permit appeal from an order of the United States District Court for the Southern District of New York, Denny Chin, Circuit Judge sitting by designation, transferring petitioner's 28 U.S.C. § 2255 motion to this Court for determination of whether the motion may be filed as a second or successive motion, see 28 U.S.C. § § 2255(h), 2244(b)(3)(A). Petitioner argues that his present § 2255 motion is not second or successive because it is his first such motion since the district court's entry of an amended judgment correcting clerical errors in the original judgment.

Lacking jurisdiction to entertain an appeal from such a transfer order, we construe petitioner's application as a motion for retransfer to the district court on the basis that his present § 2255 motion is not second or successive. We deny the motion as thus construed, concluding that the holding of Magwood v. Patterson, 561 U.S. 320, 130 S.Ct. 2788, 177 L.Ed.2d 592 (2010), relied on by petitioner, does not extend to a judgment that has been amended only to correct clerical errors.

We will allow petitioner 45 days from the date of this opinion to move for leave to file a second or successive § 2255 motion pursuant to 28 U.S.C. § § 2255(h) and 2244(b).

THOMAS MARMOLEJOS, Petitioner-Appellant, Pro se, Otisville, New York.

PREET BHARARA, United States Attorney for the Southern District of New York, New York, New York (Michael A. Levy, Assistant United States Attorney, New York, New York, of counsel), for Respondent-Appellee.

Before: KATZMANN, Chief Judge, KEARSE and RAGGI, Circuit Judges.

OPINION

Page 67

KEARSE, Circuit Judge:

Petitioner pro se Thomas Marmolejos, who filed a motion pursuant to 28 U.S.C. § 2255 in the United States District Court for the Southern District of New York in 2005 and sought to file another such motion in 2014, moves for a certificate of appealability permitting him to appeal from an order of that court, Denny Chin, Circuit Judge sitting by designation, transferring his present § 2255 motion to this Court for a determination, pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 (" AEDPA" ), of whether the motion may be filed as a second or successive motion, see 28 U.S.C. § § 2255(h), 2244(b)(3)(A). Marmolejos, citing Magwood v. Patterson, 561 U.S. 320, 130 S.Ct. 2788, 177 L.Ed.2d 592 (2010), contends that the district court erred in treating his present § 2255 motion as second or successive because, after his first § 2255 motion, the court entered an amended judgment to correct clerical errors in the original judgment, and Marmolejos's present § 2255 motion is his first such motion since the entry of the corrected judgment. Concluding that Magwood does not extend to judgments amended only to correct clerical errors, we disagree. Marmolejos will be given 45 days from the date of this opinion to move for leave to file a second or successive § 2255 motion pursuant to 28 U.S.C. § § 2255(h) and 2244(b).

Page 68

I. BACKGROUND

On October 11, 2002, Marmolejos--whose name was then spelled " Marmolejas" by Marmolejos himself, by his counsel, by the government, and by the courts--was convicted of seven federal offenses relating to his participation in a murder-for-hire on behalf of a heroin distribution organization. He was sentenced principally to life imprisonment, to be followed by a 10-year term of imprisonment, and his conviction was affirmed on appeal, see United States v. Marmolejas, 112 F.App'x 779, 780-81 (2d Cir. 2004).

In 2005, Marmolejos moved pursuant to 28 U.S.C. ยง 2255 to vacate his conviction and sentence, arguing that his attorney had provided ineffective assistance at sentencing and on ...


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