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Thomas P. Vitrano v. Respondent-Appellee.

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ARGUED JANUARY 12, 2011

Before KANNE and TINDER, Circuit Judges, and HERNDON, District Judge.*fn1

The appellant, Thomas P. Vitrano, is no stranger to this court. In fact, this is his third stop here (so far) as a result of a single but admittedly illegal possession of a shotgun. Several compounding events have occurred since Vitrano was last before us in 2007. He found (or fabricated) a document with the potential to upend his armed career criminal status and passed it along to his attorney, who died before authentication of the document was completed. Vitrano then found (or fabricated) another such document, which he used as the primary basis for a pro se 28 U.S.C.§ 2255 motion. The government examined both documents and not only opposed his § 2255 motion but also filed new criminal charges against him relating to the allegedly fraudulent nature of the documents. In the meantime, the Supreme Court clarified the landscape of the armed career criminal statute, see Chambers v. United States, 555 U.S. 122, 129 S. Ct. 687 (2009), and Vitrano moved to amend his § 2255 motion to take advantage of the new ruling. The government decried Vitrano’s motion to amend as an impermissible “second or successive” § 2255 motion. The district court agreed and dismissed Vitrano’s case. Though we are not without reservations about the premises of Vitrano’s § 2255 motion, we conclude that the district court erred by not allowing the proceedings to run their course before deeming a subsequent filing “second or successive.” We therefore vacate and remand.

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