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Johnson v. US, No. 10-3046

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By FindLaw Staff on October 08, 2010 1:55 PM

In Johnson v. US, No. 10-3046, the court denied petitioner's application for leave to file a successive 28 U.S.C. section 2255 motion on the ground that petitioner's proposed section 2255 motion would not be "second or successive" under 28 U.S.C. section 2255(h), because it was his first section 2255 motion challenging his amended judgment of conviction.

As the court wrote:  "Petitioner Leonard C. Johnson, proceeding pro se, seeks leave to file a successive 28 U.S.C. § 2255 motion challenging his amended judgment of conviction for armed bank robbery and carrying a firearm during a crime of violence. We hold that Johnson's proposed § 2255 motion would not be successive in light of the Supreme Court's decision in Magwood v. Patterson, __ U.S. __, 130 S. Ct. 2788 (2010), because it is his first § 2255 motion challenging the amended judgment of conviction, and that Magwood partially abrogates this Court's decision in Galtieri v. United States, 128 F.3d 33 (2d Cir. 1997). We therefore deny the successive application as unnecessary and transfer the matter to the district court with instructions that a new § 2255 motion be accepted for filing."

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