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Bucci v. United States, 1st Cir. (2015)
Bucci v. United States, 1st Cir. (2015)
Bucci v. United States, 1st Cir. (2015)
Before
Torruella, Lynch, and Thompson,
Circuit Judges.
does not meet the requirements that Congress set out for a second
or successive 2255 petition to be heard, we affirm the denial.
I.
The facts underlying Bucci's conviction are detailed in
previous published opinions.
18, 2021 (1st Cir. 2011); United States v. Bucci, 525 F.3d 116,
12125 (1st Cir. 2008).
On April 12, 2006, Bucci was convicted by a jury of
conspiracy to distribute, and to possess with intent to distribute,
cocaine; possession of cocaine with intent to distribute; and using
or carrying a firearm during and in relation to a drug trafficking
crime.
This court
counsel
during
his
co-conspirator's
habeas
proceedings
suggested that the filing should actually have been a motion for
relief from judgment under Federal Rule of Civil Procedure 60(b)
because it attacked the outcome of the prior 2255 proceeding
rather than the validity of the conviction.
motion did not meet the standards required of either a Rule 60(b)
motion or a second or successive 2255 petition.
We summarily
affirmed.
2015).
The 2255 petition at issue in this appeal was filed on
October 28, 2013.
felt
the
effort
not
worthwhile.
Bucci
claims
that
this
This appeal
followed.
II.
A federal prisoner seeking to file a second or successive
2255 petition must first obtain authorization from the court of
appeals to do so.
Such authorization is
28 U.S.C. 2255(h).
2255
successive petition.
petition
here
is
Id. at 98.
plainly
second
or
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court of appeals to file the petition, the district court did not
have jurisdiction, and the district court was required to deny or
transfer the petition.4
We have discretion to construe an appeal of a district
court's denial of an unauthorized 2255 petition as an application
to us for authorization to file.
Construing
28 U.S.C. 2255(h)(1).
a claim of innocence.
Nor
does
Bucci's
claim
involve
the
retroactive
Bucci claims that the district court did not treat the motion
as a second or successive 2255 petition. Bucci also claims that
by not objecting to such treatment by the district court, the
government waived the argument that the motion was a second or
successive 2255 petition.
Whether Bucci is correct or not, that does not prevent us
from treating his petition as a second or successive 2255
petition. This issue is jurisdictional.
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Missouri
v. Frye, 132 S. Ct. 1399 (2012); Lafler v. Cooper, 132 S. Ct. 1376
(2012); Padilla v. Kentucky, 559 U.S. 356 (2010).
that plea bargaining falls within the scope of the Sixth Amendment
right to counsel was not a new rule in those cases.
See, e.g.,
221 F.3d 8, 12 (1st Cir. 2000); see also Slack v. McDaniel, 529
U.S. 473, 486 (2000) (describing the phrase "second or successive
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(1998)
(when
claim
was
previously
dismissed
for
being
premature); Raineri v. United States, 233 F.3d 96, 100 (1st Cir.
2000) ("when a district court, acting sua sponte, converts a postconviction motion filed under some other statute or rule into a
section 2255 petition without notice and an opportunity to be
heard").
Bucci argues that similarly, we should forgo a literal
reading of "second or successive" whenever a petitioner arguably
raises a claim that could not have been raised in a prior habeas
petition.
run
counter
to
"the
clear
intent
of
Congress
that
stricter
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Id. (citing 28
Id.
To expand second or successive 2255 petitions beyond
to
the
courts").
In
2255(h)(1),
Congress
expressly
Congress
chose to allow such a petition only when the evidence would prove
the prisoner's innocence.
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successive
petitions
by
construing
such
motions
as
first
petitions.
Bucci's petition is a second or successive petition that
does not meet either of the 2255(h) requirements.
We need not
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