Richard A. Nelson, Petitioner-appellant, v. United States of America, Respondent-appellee, 115 F.3d 136 (2d Cir. 1997)

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US Court of Appeals for the Second Circuit - 115 F.3d 136 (2d Cir. 1997) May 30, 1997

Before KEARSE and VAN GRAAFEILAND, Circuit Judges and HAIGHT, District Judge.

Motions having been made herein by petitioner pro se (1) for a certificate of appealability permitting him to appeal from a judgment of the United States District Court for the Eastern District of New York denying his successive motion pursuant to 28 U.S.C. § 2255 to vacate, set aside or correct his sentence, and (2) for an order pursuant to 28 U.S.C. §§ 2244 and 2255 authorizing the district court to consider that successive § 2255 motion,

And petitioner not having previously obtained an order from the court of appeals pursuant to 28 U.S.C. § 2244 authorizing the filing of such a successive motion in the district court,

Upon consideration thereof, it is ordered as follows:

(1) That, to the extent the district court dealt with the § 2255 motion on its merits, the judgment of that court be and it hereby is vacated for lack of jurisdiction in that court to entertain the motion, see Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (1996) ("AEDPA"); Liriano v. United States, 95 F.3d 119, 120 (2d Cir. 1996) (per curiam);

(2) That the motion for a certificate of appealability is therefore denied as moot;

(3) That the motion for leave to file the successive § 2255 motion in the district court is denied, as the claims that petitioner seeks to raise are not based on either a new rule of constitutional law or newly discovered evidence. See 28 U.S.C. § 2255 p 8.