24-160-cv Forbes v. United States

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT ___________________________

August Term, 2024

(Submitted: October 17, 2024 Decided: November 21, 2024)

Docket No. 24-160-cv ___________________________

DENNIS FORBES, Petitioner-Appellant,

v.

UNITED STATES OF AMERICA, Respondent-Appellee. ___________________________

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF NEW YORK ___________________________

Before: JACOBS, MERRIAM, Circuit Judges, and CRONAN, District Judge. †

___________________________

Appeal from an order of the United States District Court for the Western District of New York (Charles J. Siragusa, Judge) denying petitioner-appellant’s motion for an extension of time to file a successive

petition. The District Court concluded that Forbes had not shown that he was entitled to

†Judge John P. Cronan of the United States District Court for the Southern District of New York, sitting by designation. equitable tolling of the limitations period. We hold that, because district courts lack jurisdiction to consider successive section 2255 petitions, they also lack jurisdiction to consider motions to extend the time to file such petitions. We accordingly VACATE the District Court’s order. Because Forbes has not made a prima facie showing that the requirements of

(h) are satisfied, we DENY his construed motion for leave to file a successive section 2255 petition. ___________________________

Dennis Forbes, Welch, WV.

Tiffany H. Lee, Assistant United States Attorney, for Trini E. Ross, United States Attorney for the Western District of New York, Buffalo, NY. ___________________________

PER CURIAM:

Dennis Forbes appeals the District Court’s denial of his motion for an

extension of time to file a successive

petition. We hold that

because district courts lack jurisdiction to consider successive habeas claims unless

this Court has first granted leave to file such claims, district courts also lack

jurisdiction to consider whether the time to file a successive application should be

extended. We therefore VACATE the District Court’s order denying Forbes’s

extension motion. We further construe Forbes’s pending motion for a certificate

of appealability (“COA”) as a motion for leave to file a successive section 2255

petition (and a motion for an extension of time to file a successive petition) and

DENY the motion because Forbes does not satisfy the applicable criteria.

2 BACKGROUND

In 2002, Forbes was convicted, in separate cases, of conspiracy to distribute

controlled substances and of unlawful possession of a firearm by a felon, and this

Court affirmed his convictions. In the District Court, Forbes filed section 2255

petitions challenging both convictions; the petitions were denied on the merits.

Forbes has also previously filed numerous motions for leave to file successive

section 2255 petitions in this Court, asserting various challenges to his narcotics

and firearms convictions, all of which have been denied.

In November 2023, Forbes filed two motions in the District Court seeking a

90-day extension of time to file a section 2255 petition, challenging both

convictions based on new evidence, and citing

(h)(1). The District

Court denied these motions, concluding that Forbes had not shown that he was

entitled to equitable tolling of the limitations period because the information he

cited was not new evidence, and also declined to issue a COA. Forbes then filed

a “Motion to File a Notice of Appeal” which challenged the District Court’s denial

of a COA and stated that he sought to “appeal and object” to the District Court’s

denial of his extension motions. United States v. Forbes, No. 6:99CR06089(CJS)

(W.D.N.Y. Dec. 15, 2023), ECF No. 350. The District Court denied the motion.

Forbes appealed and moves for a COA in this Court.

3 DISCUSSION

As an initial matter, Forbes appealed from the District Court’s denial of his

motion seeking reconsideration of its order denying a COA. This Court has held,

however, that “an order denying a certificate of appealability is not an appealable

final order.” Lasher v. United States,

(2d Cir. 2020) (per curiam);

see also Petrello v. White,

(2d Cir. 2008) (concluding that a denial

of reconsideration of a non-appealable order was not appealable). We

nonetheless have jurisdiction over this appeal because we construe Forbes’s

“Motion to File a Notice of Appeal” as a timely appeal from the denial of his

extension requests. See Marmolejo v. United States,

(2d Cir. 1999)

(per curiam); Haugen v. Nassau Cnty. Dep’t of Soc. Servs.,

(2d Cir.

1999) (per curiam).

We turn now to the merits. An applicant seeking to file a successive habeas

petition must first “move in the appropriate court of appeals for an order

authorizing the district court to consider the application.”

(b)(3)(A); see

§ 2255(h). Accordingly, we have held that district courts

lack jurisdiction to rule on the merits of successive claims and should transfer

successive claims to this Court. See Torres v. Senkowski,

(2d Cir.

2003) (“A second or successive collateral attack may no more begin in the district

4 court than a criminal prosecution may commence in the court of appeals.”

(citation and quotation marks omitted)); see also Corrao v. United States,

(2d Cir. 1998).

Because Forbes had already filed section 2255 petitions regarding his

convictions, which the District Court denied on the merits, he needed this Court’s

permission before he could again challenge his convictions under section 2255.

See Corrao,

. Forbes did not file a motion here, and instead, asked

the District Court for an extension of time to file a successive section 2255 petition.

In denying his requests for an extension, the District Court addressed the merits

of Forbes’s requests, concluding that he had not shown that he was entitled to

equitable tolling of the limitations period because the information he cited was not

new evidence. We have not previously decided whether a district court may

decide a motion for an extension of time to file a successive section 2255 petition.

We now hold that it may not.

In an analogous context, the Fifth Circuit held that district courts lack

jurisdiction to consider whether to appoint counsel to assist in filing a successive

section 2255 petition. See United States v. Key,

(5th Cir. 2000) (per

curiam). There, the Fifth Circuit reasoned that “[w]hen a statute removes

jurisdiction over a particular type of case from the district courts, it must by

5 necessity also remove from the district courts’ consideration motions for the

appointment of counsel to file the particular claims over which the district courts

lack jurisdiction.”

The same reasoning applies here. Successive habeas claims must be

authorized by this Court before a district court may rule on them. See Torres,

. A district court cannot decide the substantive question of whether

the time to file a successive petition should be extended without exercising some

measure of jurisdiction over the claim. Because district courts lack jurisdiction to

address the merits of successive habeas claims, see

at 151–52, they also lack

jurisdiction to decide whether to extend the time to file such claims.

We have previously considered how to “dispose of a case where a district

court, rather than transferring a second or successive petition, instead decides the

petition on the merits.” Corrao,

. We have concluded that to “cure

this procedural error,” this Court should “vacate the district court’s dismissal on

the merits and construe the appeal [from that order] as a motion for authorization

to file a second habeas application.” Torres, 316 F.3d at 151–52.

We therefore construe Forbes’s COA motion as a request for an extension of

time to file a successive section 2255 petition and for leave to file such a petition,

and deny the motion. See id.; Corrao, 152 F.3d at 191–92 (vacating a district court’s

6 order dismissing a successive petition and construing a COA motion as a motion

for leave to file a successive petition).

Forbes has not shown that he is entitled to an extension of time to file a

successive petition, or that he meets the successive criteria, because he has not

identified any “newly discovered evidence” or a “new rule of constitutional law.”

(h). Forbes does not identify any “newly discovered evidence

that, if proven and viewed in light of the evidence as a whole, would be sufficient

to establish by clear and convincing evidence that no reasonable factfinder would

have found the movant guilty of the offense.”

§ 2255(h)(1). Nor does he

explain why any of the information in his motion is “new.” And none of his

arguments rely on a new rule of constitutional law.

CONCLUSION

For the reasons stated above, we VACATE the order of the District Court

denying an extension, construe Forbes’s COA motion as a motion for leave to file

a successive section 2255 petition and for an extension of time to file a successive

petition, and DENY the motion.

7