Submitted February 21, 2012
Petitioner moves for leave to file a successive 28 U.S.C. § 2255 motion. Petitioner's proposed § 2255 motion, however, is not " second or successive" under 28 U.S.C. § 2255(h) because it seeks only to reinstate his direct-appeal rights and does not challenge the legality of the sentence imposed. Accordingly, we deny the successive motion as unnecessary and transfer the matter to the district court with instructions that the new § 2255 motion be accepted for filing.
Victor Carranza, Pro se, White Deer, PA.
Carrie Heather Cohen, Assistant United States Attorney for Preet Bharara, United States Attorney for the Southern District of New York, New York, NY.
Before: CALABRESI, SACK, and HALL, Circuit Judges.
Petitioner Victor Carranza, proceeding pro se, seeks leave to file a successive 28 U.S.C. § 2255 motion raising, as relevant here, two claims: (1) that his attorney was ineffective for failing to timely file an appellate brief and appendix, which resulted in the dismissal of Carranza's direct appeal; and (2) that Carranza " has been denied proper 'access to the courts,'" due to, among other things, his attorney's ineffectiveness. We hold that, although Carranza's first § 2255 motion challenging the legality of his 2009 conviction and sentence was previously denied on the merits, his proposed § 2255 motion is not " second or successive" under 28 U.S.C. § 2255(h) because it seeks only to reinstate his direct-appeal rights and therefore does not challenge the legality of the sentence imposed. Accordingly, we deny the successive motion as unnecessary and transfer the matter to the district court with instructions that Carranza's § 2255 motion be accepted for filing.
In July 2009, Carranza pled guilty to one count of conspiracy to distribute cocaine.
The district court sentenced him principally to 151 months' imprisonment and entered its judgment of conviction in November 2009. Carranza filed a timely pro se notice of appeal, and his attorney in the district court, Edward V. Edens, was designated as appellate counsel. After attempting to contact Edens directly, and then issuing two orders warning of the consequences of failing to file an appellate brief and appendix, this Court dismissed Carranza's direct appeal in June 2010 for failure to comply with its scheduling orders. The mandate issued in December 2010.
While his direct appeal remained pending, Carranza filed a pro se § 2255 motion in the district court in which he argued that his sentence should be vacated because he had received ineffective assistance of counsel in connection with his November 2009 sentencing. The district court denied that motion on the merits in April 2011. See Carranza v. United States, No. 10-cv-3456, (S.D.N.Y. Apr. 7, 2011). Carranza did not appeal that order.
In January 2012, Carranza moved in this Court for leave to file a successive § 2255 motion, asserting that Edens had provided ineffective assistance by failing to perfect Carranza's direct appeal. Carranza also claims that he " has been denied proper 'access to the courts'" due to his lack of education and Edens's ineffectiveness.See 2d Cir. Dkt. No. 12-334, Doc. 2 (" Mot." ) at .pdf pp. 10-11. Carranza alleges that he only " recently received" this Court's docket sheet, from which he discovered that his appeal had been dismissed. Id. at .pdf pg. 9. Carranza attached to his motion a copy of a letter addressed to the Illinois Attorney Registration and Disciplinary ...