Gallagher v.

13-547
Gallagher v. United States
UNITED STATES COURT OF APPEALS 1
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FOR THE SECOND CIRCUIT 3
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August Term, 2012 5
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(Submitted: March 18, 2013 Decided: March 28, 2013) 8
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Docket No. 13-547 10
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Robert Gallagher, 14
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Petitioner, 16
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- v.- 18
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United States of America, 20
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Respondent. 22
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Before: JACOBS, Chief Judge, CABRANES and WESLEY, 26
Circuit Judges. 27
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Petitioner Robert Gallagher, pro se, seeks an order 29
authorizing the United States District Court for the Eastern 30
District of New York to consider a second or successive 31
motion filed under 28 U.S.C. § 2255. Because Gallagher has 32
not demonstrated that his proposed motion is based on a new 33
rule of constitutional law made retroactive by the Supreme 34
Court, his request is DENIED. 35
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ROBERT GALLAGHER, pro se. 1
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PETER A. NORLING, for Loretta E. 3
Lynch, United States Attorney 4
for the Eastern District of New 5
York, for Respondent. 6
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PER CURIAM: 8
Petitioner Robert Gallagher, pro se, seeks an order 9
authorizing the United States District Court for the Eastern 10
District of New York to consider a second or successive 11
motion filed under 28 U.S.C. § 2255. Gallagher was 12
convicted of committing violent crimes in aid of 13
racketeering activity, in violation of 18 U.S.C. § 1959; 14
judgment was entered in April 1996; this Court affirmed in 15
1997. 16
In 1999, Gallagher filed a motion under 28 U.S.C. § 17
2241, arguing that his trial counsel was ineffective because 18
counsel underestimated Gallagher’s sentencing exposure 19
during plea bargaining. The district court construed the 20
motion as being brought under 28 U.S.C. § 2255, and denied 21
it as untimely. 22
Gallagher filed the instant motion for an order 23
authorizing the district court to consider a second or 24
successive motion on February 12, 2013. He alleges the same 25
facts--that his trial “counsel rendered ineffective 26
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assistance during plea negotiations by misrepresenting the 1
exposure faced at trial”--but argues that this motion relies 2
on a “new rule of constitutional law” announced in Lafler v. 3
Cooper, 132 S. Ct. 1376 (2012), and Missouri v. Frye, 132 S. 4
Ct. 1399 (2012). 5
We must dismiss a claim that was presented in a prior 6
motion under § 2255. See 28 U.S.C. § 2244(b)(1) (“A claim 7
presented in a second or successive habeas corpus 8
application under section 2254 that was presented in a prior 9
application shall be dismissed.”); Green v. United States, 10
397 F.3d 101, 102 n.1 (2d Cir. 2005) (applying § 2244(b)(1 ) 11
to motions brought under § 2255). Therefore, to the extent 12
this second motion presents the same claim presented in the 13
first (untimely) § 2255 motion, that claim is dismissed 14
under Green. 15
To the extent this second motion presents a new claim 16
based on Lafler and Frye, that new claim must be dismissed 17
because it is not based on “a new rule of constitutional 18
law, made retroactive to cases on collateral review by the 19
Supreme Court, that was previously unavailable.” 28 U.S.C. 20
§ 2255(h)(2). Neither Lafler nor Frye announced “a new rule 21
of constitutional law”: Both are applications of Strickland 22
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v. Washington, 466 U.S. 668 (1984). Moreover, even if 1
Lafler or Frye did announce “a new rule of constitutional 2
law,” it was not “made retroactive to cases on collateral 3
review by the Supreme Court.” Neither case contains any 4
express language as to retroactivity, and we have been 5
unable to locate any subsequent decision giving either of 6
them retroactive effect. See Tyler v. Cain, 533 U.S. 656, 7
663 (2001) (“[A] new rule is not ‘made retroactive to cases 8
on collateral review’ unless the Supreme Court holds it to 9
be retroactive.” (quoting 28 U.S.C. § 2255(h)(2))). 10
For the foregoing reasons, Gallagher’s motion is 11
DENIED. 12
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