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Johnson v. United States

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Submitted: August 23, 2010

Before: KATZMANN and HALL, Circuit Judges, GARDEPHE, District Judge.*fn1

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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