McCord v. Warden FCI Williamsburg

Background

Lamont E. McCord, who was incarcerated at F.C.I. Otisville, filed this self-represented action challenging the constitutionality of his federal conviction and sentence. He had originally filed the action as a petition under 28 U.S.C. § 2241, a statute generally used by federal prisoners to challenge how their sentences are being carried out. The court explained that 28 U.S.C. § 2255 is generally the proper procedure for a federal prisoner challenging the conviction or sentence itself.

The action had been transferred to the Southern District of New York after McCord was transferred from FCI Williamsburg to FCI Otisville. The opinion states that McCord had already filed a § 2255 motion challenging the same conviction and sentence, that the earlier motion was denied on the merits, and that the appeal was dismissed for failure to prosecute.

Court’s Analysis

Because the earlier § 2255 motion had been decided on the merits, the court recharacterized the current application as a second or successive § 2255 motion. A second or successive motion requires authorization from the appropriate court of appeals before it may be filed in a district court. The court stated that McCord had not indicated that he received such authorization.

The court therefore determined that the appropriate course was to transfer the motion to the United States Court of Appeals for the Fourth Circuit so McCord could request permission to pursue it. The court did not decide the constitutional challenge to the conviction or sentence.

Disposition

In the interest of justice, the court transferred the second or successive § 2255 motion to the Fourth Circuit under 28 U.S.C. § 1631 and closed this action. It also stated that no certificate of appealability would issue because the motion made no substantial showing that a constitutional right had been denied. The court certified that an appeal would not be taken in good faith and denied permission to appeal without paying filing fees.