UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA §
v. § Cr. No. 89-0162-06 (TFH)

TONY LEWIS, l
Defendant. §

)

ORDER

Pending before the Court is Magistrate Judge Kay’s Report and Recommendation on
defendant Tony Lewis’s Motion Pursuant to 28 U.S.C. § 2255 to Vacate Sentence, which was
filed on March 25, l997, and the government’s Motion to Transfer Defendant’s Motion to
Vacate Sentence, which was filed on August l7, l999. Magistrate Judge Kay recommends
granting the government’s motion to transfer the 2255 petition to the D.C. Circuit for
determination whether to allow Lewis a second habeas petition. The Court agrees with
Magistrate Judge Kay’s recommendation and below provides additional analysis.

As explained in the Report and Recommendation, whether Lewis’s second habeas
petition constitutes an abuse of the writ tums on the cause-and-prejudice standard
announced in McCleskey v. Zarzt, 499 U.S. 467, 494 (1991). Lewis’s argument for cause-
and-prejudice in his case is that his then-counsel signed him on to the first habeas petition
without his knowledge. That petition was submitted on behalf of multiple defendants and

contained no individualized arguments with respect to Lewis. That deficient performance by

counsel, Lewis contends, now prejudices him because the unapproved first petition is preventing
him from raising claims in the second petition.

While the D.C. Circuit lacks definitive precedent on Lewis’s situation, an examination of
how other circuits have applied the McCleskey cause-and-prejudice standard weighs against
Lewis’s claim. At least six Circuits have held that because a habeas petitioner has no right to
effective assistance of counsel when collaterally attacking his conviction, ineffective assistance
of counsel in preparing the first habeas petition does not constitute cause sufficient to excuse
abuse of the writ under the McCleskey standard. See Bloomer v. Unz`ted States, 162 F.3d l87,
191 n.l (2d Cir. l998); Um`ted States v. MacDonald, 966 F.2d 854, 859 n.9 (4th Cir. 1992);
Callins v. Johnson, 89 F.3d 210, 212-13 (5th Cir. 1996); Washz`ngton v. Del0, 51 F.3d 756, 760
(8th Cir. 1995); Harrz's v. Vasquez, 949 F.2d 1497, 1513-14 (9th Cir. 1991); United States v.
Washington, 4 F. App’x 695, 697 (lOth Cir. 2001). Under these precedents, even if Lewis shows
that he received ineffective assistance of counsel on his first habeas petition, he is not entitled to
a second petition.

Following this broadly recognized rule, the Court finds that Lewis fails as a matter of

law to demonstrate cause and prejudice under McCleskey.' Consequently, his second

l The Court notes, but declines to follow, non-controlling precedent in the Eighth and
Ninth Circuits that may support Lewis. These cases hold that a second habeas petition is
permitted where, as Lewis asserts, counsel filed the first petition entirely unbeknownst to the
defendant. See Williams v. Lockhart, 862 F.2d l55, 160 (8th Cir. 1988) ("We agree with
[petitioner] that it would be unfair to dismiss his ‘new’ claims because they were not included in
the prior habeas petition if the previous petition was filed and litigated without his knowledge,
participation, or authorization."); Deutscher v. Angelone, 16 F.3d 981, 984 (9th Cir. 1994)
("Because [trial counsel] filed his petition without Deutscher’s signature, knowledge, or consent,
we are compelled to hold that the petition Deutscher subsequently filed with the assistance of
new counsel is Deutscher’s initial habeas corpus petition.").

2

habeas petition constitutes an abuse of the writ. The Court therefore

ADOPTS IN FULL the Report and Recommendation. The Court further

ORDERS that the govemment’s motion to transfer is GRANTED, and

ORDERS that, pursuant to 28 U.S.C. § l63l, Lewis’s § 2255 motion be transferred to
the United States Court of Appeals for the District of Columbia Circuit for determination
whether to authorize it under 28 U.S.C. § 2244.

SO ORDERED.

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Thomas F. H 
U.S. DistrictJ ge

