Gallagher v. United States, No. 13-547 (2d Cir. 2013)
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Petitioner, convicted of violent crimes in aid of racketeering activity, sought an order authorizing the district court to consider a second or successive motion filed under 28 U.S.C. 2255. The court held that, to the extent that this second motion presented the same claim presented in the first untimely section 2255 motion, the claim was dismissed under Green v. United States. To the extent this second motion presented a new claim based on Lafler v. Cooper and Missouri v. Frye, that new claim must be dismissed because it was not based on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable. Accordingly, the court denied the motion.
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13-547 Gallagher v. United States 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2012 (Submitted: March 18, 2013 Decided: March 28, 2013) Docket No. 13-547 - - - - - - - - - - - - - - - - - - - -x Robert Gallagher, Petitioner, - v.United States of America, Respondent. - - - - - - - - - - - - - - - - - - - -x Before: JACOBS, Chief Judge, CABRANES and WESLEY, Circuit Judges. Petitioner Robert Gallagher, pro se, seeks an order 30 authorizing the United States District Court for the Eastern 31 District of New York to consider a second or successive 32 motion filed under 28 U.S.C. § 2255. 33 not demonstrated that his proposed motion is based on a new 34 rule of constitutional law made retroactive by the Supreme 35 Court, his request is DENIED. 36 Because Gallagher has 1 2 3 4 5 6 7 8 ROBERT GALLAGHER, pro se. PETER A. NORLING, for Loretta E. Lynch, United States Attorney for the Eastern District of New York, for Respondent. PER CURIAM: 9 Petitioner Robert Gallagher, pro se, seeks an order 10 authorizing the United States District Court for the Eastern 11 District of New York to consider a second or successive 12 motion filed under 28 U.S.C. § 2255. 13 convicted of committing violent crimes in aid of 14 racketeering activity, in violation of 18 U.S.C. § 1959; 15 judgment was entered in April 1996; this Court affirmed in 16 1997. Gallagher was 17 In 1999, Gallagher filed a motion under 28 U.S.C. § 18 2241, arguing that his trial counsel was ineffective because 19 counsel underestimated Gallagher s sentencing exposure 20 during plea bargaining. 21 motion as being brought under 28 U.S.C. § 2255, and denied 22 it as untimely. 23 The district court construed the Gallagher filed the instant motion for an order 24 authorizing the district court to consider a second or 25 successive motion on February 12, 2013. 26 facts--that his trial counsel rendered ineffective 2 He alleges the same 1 assistance during plea negotiations by misrepresenting the 2 exposure faced at trial --but argues that this motion relies 3 on a new rule of constitutional law announced in Lafler v. 4 Cooper, 132 S. Ct. 1376 (2012), and Missouri v. Frye, 132 S. 5 Ct. 1399 (2012). 6 We must dismiss a claim that was presented in a prior 7 motion under § 2255. 8 presented in a second or successive habeas corpus 9 application under section 2254 that was presented in a prior See 28 U.S.C. § 2244(b)(1) ( A claim 10 application shall be dismissed. ); Green v. United States, 11 397 F.3d 101, 102 n.1 (2d Cir. 2005) (applying § 2244(b)(1) 12 to motions brought under § 2255). 13 this second motion presents the same claim presented in the 14 first (untimely) § 2255 motion, that claim is dismissed 15 under Green. Therefore, to the extent 16 To the extent this second motion presents a new claim 17 based on Lafler and Frye, that new claim must be dismissed 18 because it is not based on a new rule of constitutional 19 law, made retroactive to cases on collateral review by the 20 Supreme Court, that was previously unavailable. 21 § 2255(h)(2). 22 of constitutional law : Both are applications of Strickland 28 U.S.C. Neither Lafler nor Frye announced a new rule 3 1 v. Washington, 466 U.S. 668 (1984). 2 Lafler or Frye did announce a new rule of constitutional 3 law, it was not made retroactive to cases on collateral 4 review by the Supreme Court. 5 express language as to retroactivity, and we have been 6 unable to locate any subsequent decision giving either of 7 them retroactive effect. 8 663 (2001) ( [A] new rule is not made retroactive to cases 9 on collateral review unless the Supreme Court holds it to 10 11 12 Moreover, even if Neither case contains any See Tyler v. Cain, 533 U.S. 656, be retroactive. (quoting 28 U.S.C. § 2255(h)(2))). For the foregoing reasons, Gallagher s motion is DENIED. 4
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