RECOMMENDED DECISION ON 28 U.S.C. § 2255 MOTION

JOHN C. NIVISON, Magistrate Judge.

Petitioner Vodie Goodman, also known as Rick, has filed a second or successive motion, pursuant to 28 U.S.C. § 2255, to vacate, set aside or correct his sentence. (Motion, ECF No. 79.) Petitioner cites Johnson v. United States, ___ U.S. ___, 135 S.Ct. 2551 (2015), as one of his bases for relief. (Motion at 13.)

Petitioner was convicted in 2007 of multiple counts of drug and firearms charges.1 (Judgment, ECF No. 37 at 1-2.) The Court sentenced Petitioner to a total prison term of 322 months. (Id. at 3.) Petitioner appealed from the sentence, and the First Circuit affirmed. (United States v. Goodman, No. 07-2750 (1st Cir. Mar. 26, 2009), ECF No. 50.) The United States Supreme Court denied his petition for a writ of certiorari. Goodman v. United States, 130 S.Ct. 185 (2009).2

In October 2010, Petitioner filed a section 2255 motion. (ECF No. 61.) The Court denied Petitioner's request for counsel and denied relief. (Recommended Decision, ECF No. 63; Order Affirming, ECF No. 66.) The First Circuit interpreted Petitioner's notice of appeal of the denial of his section 2255 motion as a motion for a certificate of appealability, and the Court denied the motion on the basis that Petitioner failed to demonstrate a "`substantial showing of the denial of a constitutional right.'" (Goodman v. United States, No. 10-2489 (1st Cir. Feb. 22, 2011) (quoting 28 U.S.C. § 2253(c)(2)), ECF No. 73.)

In 2012, Petitioner filed an application in the First Circuit for permission to file a second or successive section 2255 petition; the First Circuit denied the application. (Goodman v. United States, No. 12-1483 (1st Cir. May 14, 2012), ECF No. 75.) On May 16, 2016, Petitioner filed a second or successive section 2255 motion. (Motion, ECF No. 79.)

This Court lacks jurisdiction to consider a second or successive section 2255 motion unless the First Circuit has specifically authorized the Court to consider it. Section 2244 applies to second or successive section 2255 motions, pursuant to section 2255(h). Section 2244(b)(3)(A) states: "Before a second or successive application permitted by this section 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." See also First Circuit Rule 22.1. The First Circuit has held: "We have interpreted [section 2255(h)] as `stripping the district court of jurisdiction over a second or successive habeas petition unless and until the court of appeals has decreed that it may go forward.'" Trenkler v. United States, 536 F.3d 85, 96 (1st Cir. 2008) (quoting Pratt v. United States, 129 F.3d 54, 57 (1st Cir. 1997)). A review of the record reveals that Petitioner apparently has not applied to the First Circuit for permission to file the pending second or successive motion. See 28 U.S.C. §§ 2244, 2255.

Because the record lacks any evidence that the First Circuit has authorized Petitioner to proceed on the pending motion, the Court is without jurisdiction to consider the merits of the motion. First Circuit Rule 22.1(e) provides that if a second or successive section 2255 petition is filed in the district court without the required authorization from the First Circuit, the district court "will transfer the petition to the court of appeals pursuant to 28 U.S.C. § 1631 or dismiss the petition."3 The issue, therefore, is whether the Court should dismiss or transfer the matter.

Given that Petitioner relies on the Supreme Court's ruling in Johnson to support his motion and given that the one year limitations period for filing Johnson-related motions might soon expire, transfer is appropriate. See United States v. Barrett, 178 F.3d 34, 41 n.1 (1st Cir. 1999) (holding that transfer is not mandated, but noting "that transfer may be preferable in some situations in order to deal with statute of limitations problems or certificate of appealability issues"); In re Watkins, 810 F.3d 375, 378 (6th Cir. 2015) (noting that the district court had transferred to the circuit court, pursuant to section 1631, a second or successive section 2255 motion containing a claim under Johnson, 135 S.Ct. 2551, for the circuit court to consider whether to authorize the motion as a second or successive section 2255 motion).4

CONCLUSION

Based on the foregoing analysis, I recommend the Court transfer the pending section 2255 motion to the First Circuit, pursuant to 28 U.S.C. § 1631 and First Circuit Rule 22.1(e). I further recommend that the Court deny a certificate of appealability pursuant to Rule 11 of the Rules Governing Section 2255 Cases because there is no substantial showing of the denial of a constitutional right within the meaning of 28 U.S.C. § 2253(c)(2).

NOTICE