Salameh v. United States of America
| Mohammad Salameh |
| United States of America |
| 1:2022cv03267 |
| April 19, 2022 |
| US District Court for the Southern District of New York |
| Lewis A Kaplan |
| Prisoner: Vacate Sentence |
| 28 U.S.C. ยง 2255 Motion to Vacate / Correct Illegal Sentenc |
| None |
Docket Report
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Filing 4
ORDER of USCA (Certified Copy) as to Mohammad Salameh. USCA Case Number 22-6218. Petitioner moves for leave to file a successive 28 U.S.C. 2255 motion and for leave to proceed in forma pauperis. Upon due consideration, it is hereby ORDERED that the motion for leave to proceed in forma pauperis is DENIED as unnecessary. See Liriano v. United States, 95 F.3d 119, 123 (2d Cir. 1996). It is further ORDERED that the motion for leave to file a successive 2255 motion is also DENIED as unnecessary. This proceeding commenced in April 2022, when Petitioner filed a new 2255 motion in district court; that court held that the motion was successive and transferred it to this Court. However, although Petitioner previously had filed a 2255 motion in district court challenging his 1994 conviction and sentence, that motion resulted in the vacatur, in part, of his conviction and entry of an amended judgment in August 2020. Yet another amended judgment was entered in 2021. The record reflects that Petitioner has not filed any other 2255 motion challenging the 2020 or 2021 judgments. Therefore, Petitioners present proposed 2255 motion "would not be successive because it is his first 2255 motion challenging the amended judgment of conviction." Johnson v. United States, 623 F.3d 41, 46 (2d Cir. 2010); see also Magwood v. Patterson, 561 U.S. 320, 34142 (2010) (holding that, where "there is a 'new judgment intervening between the two habeas petitions,' an application challenging the resulting new judgment is not 'second or successive' at all.") (internal citation omitted)). The matter is hereby TRANSFERRED to the district court for consideration as a non-successive 2255 proceeding. Petitioner is advised to present the district court with all of his 2255 claims, including any that do not satisfy the successive motion rules. Catherine O'Hagan Wolfe, Clerk USCA for the Second Circuit. Certified: 06/08/2022. [This document also entered in case: 93-cr-180-1]. .(nd)
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| Non-Appeal Record Sent to USCA (Electronic File). Certified Indexed record on Non-Appeal Electronic Files for #1 Motion to Vacate/Set Aside/Correct Sentence (2255) filed by Mohammad Salameh, #3 USCA Transfer Order were transmitted to the U.S. Court of Appeals..(nd) |
| MAILING RECEIPT: Document No: 2-3. Mailed to: Mohammad Salameh IDNo.34338-054 FCI Terre Haute P.O. BOX 33 Terre Haute, IN 47808. (dsh) |
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Filing 3
ORDER: Movant and others were convicted in the same criminal case of multiple felony counts in connection with the first World Trade Center bombing, including two counts which charged Section 924(c) violations. In 2016, movant filed a Section 2255 motion challenging his conviction on those counts on the basis of Johnson v. United States, 135 S. Ct. 2551 (2015), and Welch v. United States, 136 S. Ct. 1257 (2016). Dkt. 863. As recounted in a subsequent memorandum and order, movant and others expanded their collateral attack to embrace their convictions on Count Eight. Dkt. 959. After extensive proceedings, the expanded 2255 motion was granted as to Count 10 but denied in all other respects. Dkt 959. Those rulings all were on the merits. A certificate of appealability was denied by this Court but movant nevertheless filed a notice of appeal. Dkt. 977. In due course, the Court of Appeals also denied a certificate of appealability and dismissed the appeal for lack of "a substantial showing of the denial of a constitutional right." Dkt 1009. In these circumstances, movant's present Section 2255 motion is a second or successive application. It may not be entertained by this Court absent authorization by the Comt of Appeals. 28 U.S.C. 2255(h), 2244(b). That is true even though this motion raises new claims. Corrao v. United States, 152 F.3d 188, 191 (2d Cir. 1998). Accordingly, the Clerk shall transfer this motion to the Court of Appeals pursuant to Liriano v. United States, 95 F.3d 119, 123 (2d Cir. 1996). SO ORDERED. (Signed by Judge Lewis A. Kaplan on 4/22/2022) (tg) Transmission to Appeals Clerk.
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Filing 2
ORDER, In these circumstances, movant's present Section 2255 motion is a second or successive application. It a substantial showing of the denial of a constitutional right. "may not be entertained by this Court absent authorization by the Court of Appeals. 28 U.S.C. 2255(h), 2244(b). That is true even though this motion raises new claims. Corrao v. United States, 152 F.3d 188, 191 (2d Cir. 1998). Accordingly, the Clerk shall transfer this motion to the Court of Appeals pursuant to Liriano v. United States, 95 F.3d 119, 123 (2d Cir. 1996). SO ORDERED. Sent original file along with documents numbered 1-2, certified copy of docket entries and transfer order. Mailed via Inter-Office Mail. (Signed by Judge Lewis A. Kaplan on 4/22/22) (yv) Transmission to Appeals Clerk.
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| ***DELETED DOCUMENT. Deleted document number #2 Order. The document was incorrectly filed in this case. (yv) |
| Filing 1 MOTION to Vacate, Set Aside or Correct Sentence (28 U.S.C. 2255). NO FURTHER ENTRIES. PLEASE SEE CRIMINAL CASE: 1:93-cr-00180-LAK-1. Document filed by Mohammad Salameh. (sac) |
| Case Designated ECF. (sac) |
| CASE ACCEPTED AS RELATED. Create association to 1:93-cr-00180-LAK. (sac) |
| Magistrate Judge Robert W. Lehrburger is so designated. Pursuant to 28 U.S.C. Section 636(c) and Fed. R. Civ. P. 73(b)(1) parties are notified that they may consent to proceed before a United States Magistrate Judge. Parties who wish to consent may access the necessary form at the following link: #https://nysd.uscourts.gov/sites/default/files/2018-06/AO-3.pdf. (sac) |
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