Vu v. United States , No. 11-909 (2d Cir. 2011)
Annotate this CasePetitioner applied for leave to file a successive 28 U.S.C. 2255 motion, challenging his 2006 murder-for-hire conviction and resulting sentence. At issue was whether a movant's prior unsuccessful motion under section 2255 seeking reinstatement of his right to direct appeal rendered a subsequent section 2255 motion challenging his conviction or sentence "successive" under the Antiterrorism and Effective Death Penalty Act ("AEDPA"), 28 U.S.C. 2255. The court held that, because a prior unsuccessful section 2255 motion was filed for the purpose of obtaining a direct appeal, and did not directly attack his conviction or sentence, the section 2255 motion that petitioner now wished to filed was not "successive" within the meaning of section 2255(h). Therefore, the court denied his motion as unnecessary and transfered the matter to the district court.
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