FULLER v. UNITED STATES

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United States Court of Appeals,Second Circuit.

Sheldon FULLER, Petitioner, v. UNITED STATES of America, Respondent.

Docket No. 15–3006.

Decided: March 05, 2016

Before: KATZMANN, Chief Judge; SACK and LOHIER, Circuit Judges. Sheldon Fuller, pro se, White Deer, PA, for Petitioner. Michael A. Levy, Andrew Douglas Beaty, Assistant United States Attorneys, for Preet Bharara, United States Attorney for the Southern District of New York, New York, NY, for Respondent.

Petitioner Sheldon Fuller, proceeding pro se, moves for remand of his third 28 U.S.C. § 2255 motion, which the district court transferred to this Court as successive. Fuller argues that the § 2255 motion is not successive. We conclude that the § 2255 motion was properly transferred to this Court as successive because it was filed after the adjudication of his first § 2255 motion became final.

In December 2010, Fuller filed his first § 2255 motion challenging his conviction for murder and related crimes. In November 2011, the district court denied Fuller's motion on the merits. In February 2013, this Court denied a certificate of appealability (“COA”) and dismissed Fuller's appeal. Fuller did not petition the Supreme Court for certiorari, and the adjudication therefore became final 90 days later in May 2013. See 28 U.S.C. § 2101(c); Pena v. United States, 534 F.3d 92, 94 (2d Cir.2008).

In March 2013, before the denial of his first § 2255 motion became final, Fuller filed a second § 2255 motion. In November 2013, the district court denied Fuller's second § 2255 motion on the merits. In September 2014, this Court denied a COA and dismissed Fuller's appeal. Fuller timely petitioned the Supreme Court for certiorari, which was denied in April 2015.

In January 2015, while the petition for certiorari on his second § 2255 motion was pending, Fuller filed the instant, third § 2255 motion. The district court transferred the motion to this Court as successive. Fuller now moves for remand, arguing that the third § 2255 motion is not successive because it was filed during the pendency of his second § 2255 motion.

“[T]he law allows every petitioner ‘one full opportunity’ for collateral review.” Whab v. United States, 408 F.3d 116, 118 (2d Cir.2005) (quoting Ching v. United States, 298 F.3d 174, 177 (2d Cir.2002)). Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), after a petitioner has had that “one full opportunity,” he must obtain authorization from this Court before filing a successive § 2255 motion. 28 U.S.C. §§ 2244(b)(3)(A), 2255(h). In order, however, for a § 2255 motion to be considered successive, it must have been filed after the adjudication of a prior § 2255 motion has become “final.” See Ching, 298 F.3d at 177. A § 2255 motion does not become “final until [the] petitioner's opportunity to seek review in the Supreme Court has expired.” Whab, 408 F.3d at 120.

Because Fuller has had one full opportunity for collateral review, which reached final adjudication prior to commencement of the present proceeding, his instant § 2255 motion is successive.1 The adjudication of Fuller's first § 2255 motion became final in May 2013 when the time to file a petition for certiorari in the Supreme Court expired, thus exhausting one full opportunity for collateral review. Fuller's instant § 2255 motion, filed in January 2015, is therefore successive because it was “filed subsequent to the conclusion of ‘a proceeding that counts as the first.’ ” Ching, 298 F.3d at 177 (quoting Littlejohn v. Artuz, 271 F.3d 360, 363 (2d Cir.2001)). We decline to adopt Fuller's position because it would permit a petitioner to prevent the adjudication of an initial habeas petition from ever becoming final by extending the first habeas proceedings through an indefinite number of new petitions. Such a position is contrary to this Court's gatekeeping function and AEDPA.2

Accordingly, for the foregoing reasons, Petitioner's motion for remand is DENIED. Petitioner is advised that this proceeding will be dismissed unless he files, within 30 days of the date of this decision, a motion for leave to file a successive § 2255 motion.

FOOTNOTES

1.  Whether Fuller's second § 2255 motion was successive is not currently at issue, but we note that it differed from the third § 2255 motion in that the second motion was filed before the adjudication of Fuller's first § 2255 motion became final.

2.  We note that this case differs from United States v. MacDonald, 641 F.3d 596, 615–16 (4th Cir.2011), where the Fourth Circuit concluded that a petitioner's motion to add a claim to a pending, authorized second § 2255 motion was not a successive third § 2255 motion. The Fourth Circuit reasoned that the motion to add a claim was more properly considered a motion to amend, and was therefore governed by Federal Rule of Civil Procedure 15. Id. at 616. Nothing in this case limits a petitioner's ability to move to amend a habeas petition pending in the district court under Rule 15. Fuller's third § 2255 motion cannot be deemed a motion to amend the second § 2255 motion because it was filed after the second § 2255 motion was denied by the district court, and, thus, no motion that could be amended was pending. See Ching, 298 F.3d at 177 (“[I]n general, when a § 2255 motion is filed before adjudication of an initial § 2255 motion is complete, the district court should construe the second § 2255 motion as a motion to amend the pending § 2255 motion.”).

PER CURIAM: