Sheldon Fuller v. United States of America

UNITED STATES COURT OF APPEALS
FOR THE S ECOND C IRCUIT
_______________
August Term, 2015
(Submitted: February 29, 2016 Decided: March 5, 2016)
Docket No. 15-3006
________________________________________________________
S HELDON FULLER,
Petitioner,
—v.—
UNITED S TATES OF A MERICA ,
Respondent.
________________________________________________________
Before: KATZMANN, Chief Judge; S ACK and L OHIER, 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
15-3006
Fuller v. United States

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after the adjudication of Petitioner’s first § 2255 motion became final. MOTION
DENIED.
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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.
_______________
P ER C URIAM:
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

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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,

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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
1 Whether 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.

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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.
2 We 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.”).

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