Herrera v. United States
- Naomi Buchwald
- 1:19-cv-10637
- U.S. District Court · Southern District of New York
- 4
In Herrera v. United States, Judge Buchwald transferred Herrera’s repeat sentence challenge to the Second Circuit because he lacked required authorization.
Lenin Herrera’s second challenge to his federal sentence was transferred to the Second Circuit; the Southern District of New York did not decide the challenge on its merits.
What happened
In Herrera v. United States, Lenin Herrera filed another challenge claiming his lawyer was ineffective for not filing an appeal after sentencing. He relied on a Supreme Court decision about lawyers who fail to appeal despite a defendant’s clear instruction.
The court noted that Herrera did not say he instructed his lawyer to appeal, and that his plea agreement limited appeals of the firearm-related sentencing increase. More importantly, the court ruled that the challenge was a second filing under the federal law governing attacks on federal sentences and required approval from the Second Circuit, which Herrera had not obtained.
Judge Naomi Reice Buchwald ruled that the court lacked authority to decide the motion and directed the Clerk of Court to transfer it to the Second Circuit for consideration. The court also terminated the pending motions connected to the filing.
The detailed version
- Herrera v. United States · No. 1:19-cv-10637
- Naomi Buchwald
- June 1, 2020
Background
The court had previously denied Herrera’s first motion under 28 U.S.C. § 2255, the federal procedure for challenging a federal sentence, based on alleged ineffective assistance of counsel. The court later denied his request to reconsider that ruling.
Herrera then filed a motion styled as a motion under Garza v. Idaho. He argued that his lawyer provided constitutionally inadequate representation by failing to file a notice of appeal after sentencing. Herrera claimed that an appeal could have challenged a two-level increase to his base offense level for possessing a firearm. The opinion states that Herrera had agreed to that increase in his plea agreement.
Court’s analysis
The court called the motion frivolous and identified several reasons why the claim would fail. Herrera did not claim that he instructed his lawyer to file an appeal, and the court found no indication of such an instruction in the record. The plea agreement also limited challenges to the firearm-related sentencing increase.
The court did not decide the ineffective-assistance claim, however, because it concluded that it lacked jurisdiction—the legal authority to adjudicate the motion. Although Herrera labeled the filing as a motion under Garza, the court determined that it challenged the constitutionality of his sentence and therefore had to be brought under § 2255. Because Herrera had already filed a § 2255 motion concerning the same sentence, the new filing was a “second or successive” motion. Under § 2255(h), he needed certification from the Second Circuit before filing it, and he had not obtained that certification.
Disposition
The court ruled that, without the required certification, it lacked jurisdiction over Herrera’s motion. It directed the Clerk of Court to transfer the successive § 2255 motion to the Second Circuit for consideration under § 2255(h). Judge Naomi Reice Buchwald also directed the Clerk to terminate the motions pending at ECF No. 7 in the civil case and ECF No. 45 in the criminal case. The opinion does not state that the court denied or dismissed the new motion on the merits.
Read the full 4-page opinion on CourtListener, the free public archive maintained by the Free Law Project.