1 

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA

v. 

DAVID CALHOUN

CRIMINAL ACTION NO. 05-363 

CIVIL ACTION NO. 19-5547 

ORDER

On March 20, 2019, the Court denied Defendant David Calhoun’s original Motion to 

Vacate, Set Aside, or Correct Sentence under 28 U.SC. § 2255 and granted a certificate of 

appealability.1 Calhoun appealed this decision.2 On December 2, 2019, Calhoun filed a second 

Motion to Vacate, Set Aside, or Correct Sentence.3 The Court transferred the second motion to 

the Court of Appeals because Calhoun had not obtained prior approval from the Court of 

Appeals to file a second or successive motion.4 On February 6, 2020, Calhoun filed a motion to 

alter the Court’s judgment transferring the second motion to the Court of Appeals arguing that, 

because his original § 2255 motion was pending before the Court of Appeals, the December 2, 

2019 motion [Doc. No. 734] should be construed not as a second or successive petition, but as a 

motion to amend his original § 2255 motion.5 On the same day, Calhoun also filed a motion with 

1 Order of Mar. 20, 2019 [Doc. No. 711]. 

2 United States v. Calhoun, No. 19-3310 (3d Cir.).

3 Mot. Vacate, Set Aside, or Correct Sentence [Doc. No. 734]. 

4 Order of Jan. 9, 2020 [Doc. No. 735]. 

5 Mot. Alter Judgment [Doc. No. 736]. 
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the Court of Appeals to transfer the December 2, 2019 motion [Doc. No. 734] back to this 

Court.

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On April 6, 2020, the Court of Appeals granted Calhoun’s motion to transfer proceedings

back to this Court, explaining that:

Calhoun’s appeal of the denial of his initial § 2255 motion is 

currently pending in this Court at docket number C.A. No. 19-3310. 

If this Court vacates or reverses the denial of the initial § 2255 

motion, the District Court will then have jurisdiction to rule on 

Calhoun’s subsequent 2255 motion, which the District Court should 

then construe as a motion to amend. If this Court affirms the denial

of the initial § 2255 motion, the District Court should transfer the 

motion to amend to this Court to be adjudicated as an application to 

file a second or successive habeas petition.7

On September 3, 2020, the Court ordered that Calhoun’s second Motion to Vacate, Set 

Aside, or Correct Sentence [Doc. No. 734] be stayed pending the Court of Appeal’s resolution of 

Calhoun’s appeal.

8 On January 23, 2023, the Court of Appeals issued a mandate affirming the 

judgment of this Court denying Calhoun’s original Motion to Vacate, Set Aside, or Correct 

Sentence.

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AND NOW, this 30th day of January 2023, it appearing that this is Calhoun’s second 

petition for habeas relief [Doc. No. 734], and it further appearing that Calhoun has not obtained 

prior approval from the Court of Appeals, as is required by statute 28 U.S.C. § 2244(b)(3)(A),10

and upon consideration of the Order of the Court of Appeals dated April 6, 2020 [Doc. No. 740], 

6 In re: David Calhoun, No. 20-1088 (3d Cir.), Doc. No. 3. 

7 Id. at Doc. No. 4 (citations omitted).

8 Order of Sept. 3, 2020 [Doc. No. 750].

9 United States v. Calhoun, No. 19-3310 (3d Cir.), Doc. No. 92.

10 “Before a second or successive application permitted by this section is filed in the district court, the applicant shall 

move in the appropriate court of appeals for an order authorizing the district court to consider the application.” 28 

U.S.C. § 2244(b)(3)(A).
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it is ORDERED that, pursuant to 28 U.S.C. § 1631, the instant petition is TRANSFERRED to 

the Third Circuit Court of Appeals to determine whether the district court may consider the 

successive petition.

 It is so ORDERED.

BY THE COURT:

/s/ Cynthia M. Rufe

_____________________

CYNTHIA M. RUFE, J.