14-1863
     United States v. Larkins (Sampson)


                             UNITED STATES COURT OF APPEALS
                                 FOR THE SECOND CIRCUIT

                                          SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION ASUMMARY ORDER@). A PARTY CITING TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1                 At a stated term of the United States Court of Appeals for the Second Circuit,
 2   held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of
 3   New York, on the 1st day of November, two thousand sixteen.
 4
 5   PRESENT:
 6               AMALYA L. KEARSE,
 7               DENNIS JACOBS,
 8               RAYMOND J. LOHIER, JR.,
 9                     Circuit Judges.
10   _____________________________________
11
12   United States of America,
13
14                               Appellee,
15
16                      v.                                                  14-1863
17
18
19   Priscilla Larkins,
20
21                               Defendant,
22
23   Juma Sampson,
24
25                     Defendant-Appellant.
26   _____________________________________
27
28   FOR APPELLANT:                            Juma Sampson, pro se, Minersville, PA.
29
30   FOR APPELLEE:                             Monica Jeanette Richards, Assistant United States
31                                             Attorney, for William J. Hochul, United States
32                                             Attorney for the Western District of New York.
 1          Appeal from an order of the United States District Court for the Western District of New
 2   York (Larimer, J.).

 3          UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
 4   DECREED that the order of the district court is AFFIRMED.
 5          Appellant Juma Sampson, pro se, appeals from the district court’s denial of his motion,
 6   filed in 2014, seeking a new sentencing hearing, the issuance of an amended judgment of
 7   conviction, and refund of special assessment fees. Sampson’s 2002 conviction was partially
 8   vacated by this Court in 2004, and the district court, on motion of the government, dismissed those
 9   two counts in June 2005. Sampson filed a 28 U.S.C. § 2255 motion in January 2006, which was
10   denied, and this Court granted in part and denied in part his motion for a certificate of
11   appealability. On remand, the district court denied all relief, and this Court denied his motion for
12   a certificate of appealability. We assume the parties’ familiarity with the underlying facts, the
13   procedural history of the case, and the issues on appeal.
14          Upon review, we conclude that Sampson’s motion is best construed as a successive § 2255
15   motion because it challenged both the propriety of his judgment of conviction and his sentence.
16   See Jiminian v. Nash, 

, 146-47 (2d Cir. 2001) (Ҥ 2255 is generally the proper vehicle
17   for a federal prisoner’s challenge to his conviction and sentence”). A district court may consider
18   a successive § 2255 motion only if the movant first obtains from this Court an order authorizing
19   consideration of the successive motion. See 28 U.S.C. § 2255(h). “[W]hen a second or
20   successive petition for habeas corpus relief or § 2255 motion is filed in a district court without
21   [such authorization], the district court should transfer the petition or motion to this Court in the
22   interest of justice pursuant to [28 U.S.C. § 1631].” Liriano v. United States, 

, 123 (2d
23   Cir. 1996). Notwithstanding this directive, the district court did not commit reversible error by
24   denying, rather than transferring, Sampson’s motion because transfer to this Court would have
25   been futile.
26          We are required to dismiss any claim made in a proposed successive § 2255 motion, unless
27   it is based on: (1) newly discovered evidence that would establish that no reasonable factfinder
28   would have found the movant guilty of the offense; or (2) a new rule of constitutional law, made
29   retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.

                                                       2
 1   See 28 U.S.C. § 2255(h). A claim that was presented in a prior § 2255 motion must also be
 2   dismissed. See Gallagher v. United States, 

, 315 (2d Cir. 2013). We consider
 3   Sampson to have abandoned his claim of entitlement to a new sentencing hearing because his brief
 4   does not pursue that claim. Sampson claims that he was entitled to an amended judgment
 5   specifying that two counts against him were dismissed; but that claim was previously raised and
 6   does not meet the successive-motion requirements. Sampson therefore presents no non-frivolous
 7   challenge to the district court’s denial of his motion.
 8          To the extent that Sampson’s request for the issuance of an amended judgment may be
 9   construed as a request to correct a clerical error under Federal Rule of Criminal Procedure 36
10   instead of a challenge to his underlying conviction, his claim would be barred by the law of the
11   case, under which doctrine a court may not reconsider “issues that were decided—or that could
12   have been decided—during prior proceedings” in the same case. United States v. Williams, 475

, 471 (2d Cir. 2007). Because Sampson has raised this argument previously and it was
14   denied, the claim is barred.
15          Notwithstanding the law-of-the-case doctrine, this Court has the power to reconsider a
16   prior ruling if “there has been an intervening change of controlling law, new evidence has become
17   available, or there is a need to correct a clear error or prevent manifest injustice.” United States
18   v. Minicone, 

, 300 (2d Cir. 1994) (quotation marks omitted) (emphasis added). We
19   exercise that power with respect to Sampson’s claim that he is entitled to a refund of $200—the
20   special assessments he paid on account of the two counts of conviction that were subsequently
21   vacated and dismissed—and we hold that he is entitled to such a refund.
22          We have considered all of Sampson’s other arguments and find them to be without merit.
23   Accordingly, we AFFIRM the order of the district court insofar as it denied Sampson’s belated
24   request for an amended judgment. However, we instruct that an order be entered directing the
25   government to refund to Sampson the sum of $200.
26
27                                                  FOR THE COURT:
28                                                  Catherine O=Hagan Wolfe, Clerk




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