15-3006
Fuller v. United States


                              UNITED STATES COURT OF APPEALS

                                      FOR THE S ECOND CIRCUIT

                                          _______________

                                         August Term, 2015

                    (Submitted: February 29, 2016         Decided: March 5, 2016)

                                        Docket No. 15-3006

                   ________________________________________________________

                                         SHELDON FULLER,

                                                      Petitioner,

                                               —v.—

                                    UNITED STATES OF AMERICA,

                                                      Respondent.

                   ________________________________________________________

        Before: KATZMANN, Chief Judge; SACK and LOHIER, Circuit Judges.

                Petitioner moves for remand of his 28 U.S.C. § 2255 motion, which the

        district court transferred to this Court as successive. We conclude that the § 2255

        motion was properly transferred to this Court as successive because it was filed
after the adjudication of Petitioner’s first § 2255 motion became final. MOTION

DENIED.

_______________

For Petitioner:                        Sheldon Fuller, pro se, White Deer, PA.

For Respondent:                        Michael A. Levy, Andrew Douglas Beaty,
                                       Assistant United States Attorneys, for Preet
                                       Bharara, United States Attorney for the
                                       Southern District of New York, New York,
                                       NY.
_______________

PER CURIAM:

      Petitioner Sheldon Fuller, proceeding pro se, moves for remand of his third

28 U.S.C. § 2255 motion, which the district court transferred to this Court as

successive. Fuller argues that the § 2255 motion is not successive. We conclude

that the § 2255 motion was properly transferred to this Court as successive

because it was filed after the adjudication of his first § 2255 motion became final.

      In December 2010, Fuller filed his first § 2255 motion challenging his

conviction for murder and related crimes. In November 2011, the district court

denied Fuller’s motion on the merits. In February 2013, this Court denied a

certificate of appealability (“COA”) and dismissed Fuller’s appeal. Fuller did not

petition the Supreme Court for certiorari, and the adjudication therefore became
final 90 days later in May 2013. See 28 U.S.C. § 2101(c); Pena v. United States, 534

F.3d 92, 94 (2d Cir. 2008).

      In March 2013, before the denial of his first § 2255 motion became final,

Fuller filed a second § 2255 motion. In November 2013, the district court denied

Fuller’s second § 2255 motion on the merits. In September 2014, this Court

denied a COA and dismissed Fuller’s appeal. Fuller timely petitioned the

Supreme Court for certiorari, which was denied in April 2015.

      In January 2015, while the petition for certiorari on his second § 2255

motion was pending, Fuller filed the instant, third § 2255 motion. The district

court transferred the motion to this Court as successive. Fuller now moves for

remand, arguing that the third § 2255 motion is not successive because it was

filed during the pendency of his second § 2255 motion.

      “[T]he law allows every petitioner ‘one full opportunity’ for collateral

review.” Whab v. United States, 408 F.3d 116, 118 (2d Cir. 2005) (quoting Ching v.

United States, 298 F.3d 174, 177 (2d Cir. 2002)). Under the Antiterrorism and

Effective Death Penalty Act (“AEDPA”), after a petitioner has had that “one full

opportunity,” he must obtain authorization from this Court before filing a

successive § 2255 motion. 28 U.S.C. §§ 2244(b)(3)(A), 2255(h). In order, however,
for a § 2255 motion to be considered successive, it must have been filed after the

adjudication of a prior § 2255 motion has become “final.” See Ching, 298 F.3d at

177. A § 2255 motion does not become “final until [the] petitioner’s opportunity

to seek review in the Supreme Court has expired.” Whab, 408 F.3d at 120.

        Because Fuller has had one full opportunity for collateral review, which

reached final adjudication prior to commencement of the present proceeding, his

instant § 2255 motion is successive. 1 The adjudication of Fuller’s first § 2255

motion became final in May 2013 when the time to file a petition for certiorari in

the Supreme Court expired, thus exhausting one full opportunity for collateral

review. Fuller’s instant § 2255 motion, filed in January 2015, is therefore

successive because it was “filed subsequent to the conclusion of ‘a proceeding

that counts as the first.’” Ching, 298 F.3d at 177 (quoting Littlejohn v. Artuz, 271

F.3d 360, 363 (2d Cir. 2001)). We decline to adopt Fuller’s position because it

would permit a petitioner to prevent the adjudication of an initial habeas petition

from ever becoming final by extending the first habeas proceedings through an




1Whether Fuller’s second § 2255 motion was successive is not currently at issue, but we note that it
differed from the third § 2255 motion in that the second motion was filed before the adjudication of
Fuller’s first § 2255 motion became final.
indefinite number of new petitions. Such a position is contrary to this Court’s

gatekeeping function and AEDPA. 2

        Accordingly, for the foregoing reasons, Petitioner’s motion for remand is

DENIED. Petitioner is advised that this proceeding will be dismissed unless he

files, within 30 days of the date of this decision, a motion for leave to file a

successive § 2255 motion.




2We note that this case differs from United States v. MacDonald, 641 F.3d 596, 615–16 (4th Cir. 2011), where
the Fourth Circuit concluded that a petitioner’s motion to add a claim to a pending, authorized second §
2255 motion was not a successive third § 2255 motion. The Fourth Circuit reasoned that the motion to
add a claim was more properly considered a motion to amend, and was therefore governed by Federal
Rule of Civil Procedure 15. Id. at 616. Nothing in this case limits a petitioner’s ability to move to amend a
habeas petition pending in the district court under Rule 15. Fuller’s third § 2255 motion cannot be
deemed a motion to amend the second § 2255 motion because it was filed after the second § 2255 motion
was denied by the district court, and, thus, no motion that could be amended was pending. See Ching, 298
F.3d at 177 (“[I]n general, when a § 2255 motion is filed before adjudication of an initial § 2255 motion is
complete, the district court should construe the second § 2255 motion as a motion to amend the pending §
2255 motion.”).
