Castro v. United States

2006 DNH 025

• Court: District Court, D. New Hampshire
• Decided: February 28, 2006
• Docket: 06-CV-011-SM
• Status: Published

Opinion

Castro v . United States 06-CV-011-SM 02/28/06 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Noel Castro, Petitioner

v. Civil N o . 06-cv-011-SM Opinion N o . 2006 DNH 025 United States of America, Government

O R D E R

Petitioner seeks relief under 28 U.S.C. § 2255. As he

acknowledges, however, this is his second § 2255 petition. The

first was filed in Castro v . United States, N o . 97-cv-264-M.

Judgment denying relief was entered on July 7 , 1997.

Petitioner faces a number of difficulties with respect to

his current petition, but the dispositive one here is that this

court is without jurisdiction to entertain his second or

successive petition. 28 U.S.C. § 2255. See also Pratt v . United

States, 129 F.3d 54 (1st Cir. 1997). None of the recognized

exceptions to that rule seem to apply: Petitioner is challenging

the same judgment and sentence he challenged in 1997; he does not

claim newly discovered evidence sufficient to establish his innocence nor does he invoke a new rule of constitutional law

made retroactive by the Supreme Court that was previously

unavailable; the prior petition was not rejected for failing to

pay a filing fee; nor was it in substance a petition under § 2241

rather than § 2255; petitioner is not challenging parts of a

judgment that arose as the result of success on the earlier

petition, etc. See 28 U.S.C. § 2255; United States v . Barrett,

178 F.3d 34 (1st Cir. 1999).

In order to proceed with his second petition, then,

petitioner must first obtain authorization from the United States

Court of Appeals for the First Circuit.

Although transfer of a second petition to the court of

appeals for consideration is sometimes the preferable

disposition, see 28 U.S.C. § 1631; Pratt, supra, transfer is not

mandated in this circuit. Petitioner is not facing any delicate

statute of limitations or certificate of appealability issues

that might warrant transfer. His petition, although cloaked in

terms of “actual innocence” claims, actually seeks sentence

relief under United States v . Booker, 543 U.S. 220 (2005).

2 Relief on that ground is not likely. The Court of Appeals has

made it clear that, in the absence of a Supreme Court decision

rendering Booker retroactive, § 2255 is not available to advance

Booker claims. Cirilo-Munoz v. United States, 404 F.3d 527 (1st

Cir. 2005). In short, nothing in the petition suggests that

transfer is preferable to dismissal.

Accordingly, the petition is dismissed for lack of

jurisdiction. Notwithstanding dismissal by this court, however,

petitioner remains free to seek authorization from the court of

appeals to file a second or successive petition under § 2255.

SO ORDERED. s~~/? S

S/teven J. McAuliffe Chief Judge

February 28, 2006

cc: Noel Castro Peter E. Papps, Esq. U.S. Probation U.S. Marshal