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Roccisano v. Menifee

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Submitted: June 8, 2001

Final briefs submitted November 5, 2001

Petitioner Vincenzo Roccisano, a federal prisoner who filed a petition under 28 U.S.C. � 2241 seeking relief from his narcotics convictions on the ground that he received ineffective assistance from his trial counsel, appeals from an order of the United States District Court for the Southern District of New York denying his motion for reconsideration of the court’s decision to treat his � 2241 petition as a motion for a writ of habeas corpus under 28 U.S.C. � 2255 and to transfer it to this Court for a determination of whether Roccisano should be granted leave to file a successive motion under � 2255 as amended by � 105 of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-132, � 105, 110 Stat. 1214. On appeal, Roccisano contends principally (1) that the district court erred in treating his � 2241 petition as a motion under � 2255; (2) that, although he cannot meet the AEDPA conditions for filing a successive � 2255 motion, those conditions may not constitutionally be applied to him because his only previous � 2255 motions were filed prior to the effective date of AEDPA; and (3) that he should be allowed to proceed because he can satisfy pre-AEDPA standards. For the reasons that follow, we conclude that the district court properly treated Roccisano’s � 2241 petition as a � 2255 motion and that, even if AEDPA’s gatekeeping, or leave-to-file, requirement is not applicable, Roccisano’s petition is not allowable because under pre-AEDPA standards it constitutes an abuse of the writ.

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