     13-547
     Gallagher v. United States

 1                       UNITED STATES COURT OF APPEALS
 2
 3                           FOR THE SECOND CIRCUIT
 4
 5                                August Term, 2012
 6
 7
 8     (Submitted: March 18, 2013             Decided: March 28, 2013)
 9
10                                Docket No. 13-547
11
12   - - - - - - - - - - - - - - - - - - - -x
13
14   Robert Gallagher,
15
16                     Petitioner,
17
18               - v.-
19
20   United States of America,
21
22                     Respondent.
23
24   - - - - - - - - - - - - - - - - - - - -x
25

26         Before:           JACOBS, Chief Judge, CABRANES and WESLEY,
27                           Circuit Judges.
28
29         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.         Because Gallagher has

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
1                                ROBERT GALLAGHER, pro se.
2
3                                PETER A. NORLING, for Loretta E.
4                                Lynch, United States Attorney
5                                for the Eastern District of New
6                                York, for Respondent.
7
8    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.   Gallagher was

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.

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.   The district court construed the

21   motion as being brought under 28 U.S.C. § 2255, and denied

22   it as untimely.

23       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.   He alleges the same

26   facts--that his trial “counsel rendered ineffective

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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.   See 28 U.S.C. § 2244(b)(1) (“A claim

8    presented in a second or successive habeas corpus

9    application under section 2254 that was presented in a prior

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).   Therefore, to the extent

13   this second motion presents the same claim presented in the

14   first (untimely) § 2255 motion, that claim is dismissed

15   under Green.

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.”    28 U.S.C.

21   § 2255(h)(2).   Neither Lafler nor Frye announced “a new rule

22   of constitutional law”: Both are applications of Strickland



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1    v. Washington, 466 U.S. 668 (1984).       Moreover, even if

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.”       Neither case contains any

5    express language as to retroactivity, and we have been

6    unable to locate any subsequent decision giving either of

7    them retroactive effect.   See Tyler v. Cain, 533 U.S. 656,

8    663 (2001) (“[A] new rule is not ‘made retroactive to cases

9    on collateral review’ unless the Supreme Court holds it to

10   be retroactive.” (quoting 28 U.S.C. § 2255(h)(2))).

11       For the foregoing reasons, Gallagher’s motion is

12   DENIED.




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