Hertular v. United States
- Naomi Buchwald
- 1:24-cv-05824
- U.S. District Court · Southern District of New York
- 2
In Hertular v. United States, Judge Buchwald transferred Hertular’s second request to undo his conviction and sentence to the Second Circuit after he did not indicate required authorization.
Robert Hertular’s second or successive motion to vacate his conviction and sentence was transferred from the Southern District of New York to the United States Court of Appeals for the Second Circuit; the order did not decide the motion’s merits.
What happened
In Hertular v. United States, Robert Hertular asked the court to vacate, or set aside, his conviction and sentence under a federal law called Section 2255. He filed the motion on July 22, 2024.
The court said Hertular had previously filed a Section 2255 motion challenging the same conviction and sentence, and that the court had denied that earlier motion on its merits. The new motion therefore counted as a second or successive application. The law requires permission from the appropriate federal appeals court before such a motion may be filed in a district court, and Hertular did not indicate that he had received that permission.
Judge Naomi Reice Buchwald transferred the motion to the United States Court of Appeals for the Second Circuit in the interest of justice. The order did not decide the substance of Hertular’s new challenge.
The detailed version
- Hertular v. United States · No. 1:24-cv-05824
- Naomi Buchwald
- Aug. 13, 2024
Background
Robert Hertular filed a motion under 28 U.S.C. § 2255 seeking to vacate his judgment of conviction and sentence. The order states that he filed the motion on July 22, 2024.
Prior Motion and Filing Requirement
Hertular had previously filed a motion under Section 2255 challenging his conviction and sentence. The court had denied that earlier motion on the merits. Because Hertular had already filed one such motion, the court determined that the present motion was a “second or successive” application.
Before a person may file a second or successive Section 2255 motion in a district court, the person must obtain authorization from the appropriate federal court of appeals. The court stated that Hertular had not indicated that he received authorization from a court of appeals.
Court’s Action
The court ordered that the second or successive Section 2255 motion be transferred to the United States Court of Appeals for the Second Circuit under 28 U.S.C. § 1631. The transfer was made in the interest of justice. The order did not rule on the merits of Hertular’s new challenge to his conviction or sentence.
Read the full 2-page opinion on CourtListener, the free public archive maintained by the Free Law Project.