UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Stephen Burke, Petitioner Case No. 14-cv-252-SM

Matthew McDonald, Petitioner Case No. 14-cv-255-SM

Michael O’Halloran, Petitioner Case No. 14-cv-267-SM

v. Opinion No.

United States of America, Respondent

O R D E R

In 1997, a federal grand jury indicted Stephen Burke,

Matthew McDonald, and Michael O’Halloran (collectively,

“Petitioners”), as well as three other men, and charged them with

numerous offenses stemming from a series of bank and armored car

robberies that occurred in the 1990’s. One of the charges -

carjacking - arose out of an armored car robbery that took place

in Hudson, New Hampshire, during which two security guards were

murdered. At the conclusion of a three-month trial, the jury

convicted Petitioners on all counts charged against them. Those

convictions, as well as Petitioners’ sentences, were affirmed on

appeal. See United States v. Shea,

(1st Cir. 2000). Subsequently, Petitioners filed separate, timely habeas

corpus petitions, challenging their convictions and sentences.

Those petitions were denied, and those denials were affirmed on

appeal. See McGonagle v. United States,

(D.N.H.

Oct. 23, 2002), aff’d,

(1st Cir. July 8,

2005). In these proceedings, Petitioners again invoke the

provisions of

and move the court to vacate their

sentences. For the reasons discussed, those petitions are

transferred to the Court of Appeals for the First Circuit where

Petitioners may seek the requisite order authorizing this court

to consider the merits of their claims. See

(3)(A).

Discussion

Relying upon the Supreme Court’s recent decisions in Alleyne

v. United States,

(2013), and Burrage v. United

States,

(2014), petitioners assert that they are

entitled to sentencing relief under

1 In Alleyne, the Court held that “[a]ny fact that, by law, increases the penalty for a crime is an ‘element’ that must be submitted to the jury and found beyond a reasonable doubt. Mandatory minimum sentences increase the penalty for a crime. It follows, then, that any fact that increases the mandatory minimum is an ‘element’ that must be submitted to the jury.”

. In Burrage, the Court held that because the “death results” sentencing enhancement under

“increased the minimum and maximum sentences to which [defendant] was exposed, it is an element that must be submitted to the jury and found beyond a reasonable doubt.”

.

2 Specifically, they claim to be “actually innocent” of the life

sentences to which they were sentenced upon their convictions for

carjacking. See

(3). Petitioners argue that

they were impermissibly (and unconstitutionally) sentenced to

life in prison for carjacking with death resulting, given that

the jury was not instructed with respect to, so did not find, the

death resulting “element” of that crime.2

Petitioners previously raised the same issue, obviously

without the benefit of Alleyne and Burrage,3 on direct appeal,

and it was resolved against them:

In retrospect, the failure to instruct on the “if death results” requirement was “error” under Jones, but it was patently harmless. The government introduced at trial photographs of the dead guards and testimony from the state’s assistant deputy medical examiner, who

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provides, in pertinent part, that whoever takes a motor vehicle from another by force and violence shall be: (1) imprisoned for not more than 15 years; or (2) if serious bodily injury results, imprisoned for not more than 25 years; or (3) if death results, imprisoned for up to life or sentenced to death. Interpreting that statute, the Supreme Court held that section 2119 establishes “three separate offenses by the specification of distinct elements, each of which must be charged by indictment, proven beyond a reasonable doubt, and submitted to a jury for its verdict.” Jones v. United States,

(1999). 3 In his original 2255 petition, Stephen Burke raised a very similar claim, asserting that he was improperly sentenced for carjacking, with death resulting, under the then-recent Supreme Court decision in Apprendi v. New Jersey,

(2000). That claim was resolved against him. See McGonagle,

at *10-11.

3 participated in and testified about the autopsies. Witnesses testified that each of the four defendants had admitted that the guards were killed during the robbery, and the defendants did not contest the point. In the words of Neder v. United States,

,

,

(1999), we conclude “beyond a reasonable doubt that the omitted element was uncontested and supported by overwhelming evidence,” so the error in instruction was “harmless.”

Shea,

(citation omitted).

But, that is unimportant with respect to these petitions.

Because they plainly constitute “second or successive” petitions,

this court cannot consider them unless the court of appeals first

authorizes it to do so. See, e.g., Trenkler v. United States,

(1st Cir. 2008) (noting that a prisoner seeking

to prosecute a second or successive petition under section 2255

must “obtain pre-clearance, in the form of a certificate, from

the court of appeals.”). The court of appeals has “interpreted

this provision as ‘stripping the district court of jurisdiction

over a second or successive habeas petition unless and until the

court of appeals has decreed that it may go forward.’”).

(quoting Pratt v. United States,

(1st Cir.

1997)). See also United States v. Barrett,

(1st

Cir. 1999). See generally Sustache-Rivera v. United States,

(1st Cir. 2000) (identifying some of the rare

circumstances in which a numerically second petition will not be

treated as “second or successive” under § 2255).

4 That petitioners have also brought their claims under the

auspices of Rule 60(b) does not serve to vest this court with

jurisdiction. See, e.g., Munoz v. United States,

(1st Cir. 2003) (“We hold, therefore, that a motion made

under Rule 60(b) of the Federal Rules of Civil Procedure for

relief from a judgment previously entered in a section 2255 case

should be treated as a second or successive habeas petition if

. . . the factual predicate set forth in support of the motion

constitutes a direct challenge to the constitutionality of the

underlying conviction.”).

Conclusion

Petitioners have not obtained an order from the court of

appeals authorizing this court to consider their second

petitions. See

(b)(3)(A). See also

(h). Accordingly, this court must either dismiss the

petitions for want of jurisdiction or transfer them to the court

of appeals for consideration under

. See

Barrett,

. Rather than require petitioners to

re-file in the court of appeals, as they surely would, the court

will transfer their petitions to the United States Court of

Appeals for the First Circuit for consideration of their

necessarily implied request for an order authorizing this court

to consider their second or successive petitions for § 2255

5 relief. See First Circuit Rule 22.1(e) (“If a second or

successive § 2254 or § 2255 petition is filed in a district court

without the requisite authorization by the court of appeals

pursuant to

(b)(3), the district court will

transfer the petition to the court of appeals pursuant to

or dismiss the petition.”).

Accordingly, the petitions for sentencing relief under

(document no. 1, in case no. 14-cv-252-SM; document

no. 1, in case no. 14-cv-255-SM; and document no. 1, in case no.

14-cv-267-SM) are hereby transferred to the United States Court

of Appeals for the First Circuit for consideration of

petitioners’ implicit request for an order authorizing this court

to consider their second § 2255 petitions, as well as their claim

that the holding in Alleyne applies retroactively. See

(f)(3) and (h)(2).

The Clerk shall close these cases, subject to reopening in

the event the court of appeals authorizes this court to consider

the petitions.

6 SO ORDERED.

____________________________ Steven J. McAuliffe United States District Judge

September 30, 2014

cc: Stephen Burke, pro se Matthew McDonald, pro se Michael O’Halloran, pro se Seth R. Aframe, AUSA

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