The Honorable Jed S. Rakoff, of the United States District Court for the Southern *

District of New York, sitting by designation.

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09-3398-op

Urinyi v. United States of America

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

_______________________________

August Term, 2009

(Submitted: October 19, 2009 Decided: June 14, 2010)

Docket No. 09-3398-op

_______________________________

JAMES URINYI,

Petitioner-Appellant,

v.

UNITED STATES OF AMERICA,

Respondent-Appellee.

_______________________________

Before: WINTER, POOLER, Circuit Judges, and RAKOFF, District Judge .

*

_______________________________

James Urinyi moves for leave to file a “second or successive” motion to vacate his

conviction pursuant to 28 U.S.C. § 2255. Urinyi contends that his one prior Section 2255

proceeding in which he sought and obtained permission to file a late notice of appeal based on

his attorney’s ineffective assistance should not count when determining whether his proposed

motion is “second or successive” under the Antiterrorism and Effective Death Penalty Act

(“AEDPA”). We hold that Urinyi’s prior motion does not count when determining whether his
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proposed motion is “second or successive” under the AEDPA, and, thus that Urinyi does not

require leave of this Court to file the proposed motion in district court. The motion is therefore

DENIED.

_____________________________

JOHN V. SAYKANIC, Clinton, NJ, for Petitioner-Appellant.

PREET BHARARA, United States Attorney for the Southern District of New

York, New York, NY, for Respondent-Appellee. 

__________________________

PER CURIAM:

James Urinyi, through counsel, moves for leave to file a “second or successive” motion to

vacate his conviction, pursuant to 28 U.S.C. § 2255. In a prior Section 2255 proceeding, Urinyi

alleged that he had been denied effective assistance of counsel because his attorney had failed to

file a timely notice of appeal from his criminal judgment, and was granted relief in the form of an

extension of time to file a notice of appeal. The question before us is whether Urinyi’s prior

successful 2255 motion, which sought only reinstatement of the right to a direct appeal due to

ineffective assistance of counsel, renders a subsequent 2255 motion challenging his conviction

and sentence “second or successive” under the Antiterrorism and Effective Death Penalty Act

(“AEDPA”). We hold that Urinyi’s prior motion does not count for purposes of determining

whether the proposed motion is “second or successive” under the AEDPA. Urinyi does not

require leave of this Court to file the proposed Section 2255 motion in district court. 
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BACKGROUND

In June 2004, Urinyi, who was represented by counsel, pleaded guilty to one count of

conspiracy to distribute, and possession with intent to distribute, 50 grams or more of

methamphetamine, and one count of distributing and possessing with intent to distribute 10

grams of methamphetamine. By judgment entered in December 2004, Urinyi was sentenced to

121 months of incarceration. Urinyi failed to file a notice of appeal of the judgment. 

Approximately one year later, Urinyi, pro se, filed a Section 2255 motion in district court,

arguing that he had been denied effective assistance of counsel because his attorney had failed to

file a timely notice of appeal, despite Urinyi’s explicit instruction that the attorney do so. In

January 2007, following an evidentiary hearing, the district court found that Urinyi’s attorney had

provided ineffective assistance of counsel, granted the 2255 motion, and permitted Urinyi to file

a notice of appeal out of time. See Urinyi v. United States, No. 05 Civ. 10696, 2007 WL

259934, at * 1 (S.D.N.Y. Jan. 30, 2007). 

On direct appeal, Urinyi argued that his guilty plea was not knowing, voluntary, or

sufficient to support his conviction, and that the district court would have imposed a lesser

sentence had the United States Sentencing Guidelines been advisory at that time of the

sentencing proceeding. We affirmed Urinyi’s judgment of conviction in March 2008, but

remanded the case to district court for resentencing pursuant to United States v. Crosby, 397 F.3d

103 (2d Cir. 2005). See United States v. Urinyi, 271 Fed. Appx. 95 (2d Cir. 2008). On remand,

the district court declined to resentence Urinyi.

In June 2009, Urinyi, through counsel, filed a second 2255 motion in district court,
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presenting nine claims attacking his 2004 conviction and sentence. Relying on Urinyi’s prior

successful 2255 motion, the district court (Kaplan, J.) found that Urinyi’s proposed motion was

“second or successive” under the AEDPA, and that Urinyi must first obtain leave of this Court in

order to properly file it. Thus, the district court transferred the instant motion to this Court. 

In September 2009, Urinyi filed in this Court an application for leave to file a successive

Section 2255 motion. However, he asserts that the proposed motion is not successive, arguing

that since he filed the prior 2255 motion in order to obtain a direct appeal, and not for the

purpose of challenging the 2004 conviction and sentence, the prior motion should not count

when determining whether the proposed § 2255 motion is successive. 

DISCUSSION

Under the AEDPA, a petitioner incarcerated pursuant to a federal judgment cannot bring

a “second or successive” motion for habeas relief, unless he or she obtains permission from a

court of appeals. See 28 U.S.C. §§ 2255(h), 2244(b). However, the AEDPA does not define the

phrase “second or successive.” See Thomas v. Superintendent/Woodbourne Corr. Facility, 136

F.3d 227, 229 (2d Cir. 1997). In interpreting this phrase, we have looked to the pre-AEDPA

abuse-of-the-writ doctrine. See James v. Walsh, 308 F.3d 162, 167 (2d Cir. 2002); Vasquez v.

Parrott, 318 F.3d 387, 389-90 (2d Cir. 2003). Under the abuse-of-the-writ doctrine, a petition is

considered “second or successive” when “it raises a claim that was, or could have been, raised in

an earlier petition.” James, 308 F.3d at 167 (citing McCleskey v. Zant, 499 U.S. 467, 493-95

(1991)).

Our recent decisions have addressed the definition of “second or successive” in the
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context of Section 2254 petitions. See James, 308 F.3d at 167-68; Vasquez, 318 F.3d 389-92. In

Vasquez, for instance, we found that “two petitions are not ‘successive’ under Section 2244

merely because they are both brought by the same prisoner. Rather, to be considered

‘successive,’ a prisoner’s second petition must, in a broad sense, represent a second attack by

federal habeas petition on the same conviction.” Id. at 390. As we explained,

[W]hile [the] AEDPA restricts the writ of habeas corpus, it

nonetheless “ensures every prisoner one full opportunity to seek

collateral review.” And, it is only after the prisoner has used the

allowance of one habeas petition attacking the judgment that the

second or successive petition rule restricts his ability to lodge further

attacks. 

Id. at 390 (quoting Ching v. United States, 298 F.3d 174, 177 (2d Cir. 2002)). In a footnote, we

specifically addressed how the status of the petitioner would have been affected if he were

subject to 2255, instead of 2254. Id. at 392 n. 1. We found that, since the petitioner’s first

petition did not contend that his sentence was illegally imposed, it would not have been

considered a first 2255 motion under the AEDPA’s “second or successive” rule, regardless of

how the petitioner designated it. Id. We found that the petitioner’s first petition would have

been considered a petition for habeas relief pursuant to Section 2241, and that the petitioner

would not require leave of this Court to subsequently file a 2255 motion in the district court. Id. 

Consistent with our reasoning in Vasquez, we hold that Urinyi’s prior 2255 motion does

not render the present proposed 2255 motion a “second or successive” under the AEDPA. As we

stated in Vasquez, nothing in the AEDPA indicates that Congress intended the “second or

successive” rules to operate differently with regard to state and federal prisoners. 318 F.3d at

391.
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Urinyi’s proposed motion falls within the parameters we outlined in the Vasquez

footnote. In his prior 2255 motion, Urinyi did not contend that his sentence had been illegally

imposed; he sought only reinstatement of his right to a direct appeal. After completing his direct

appeal, Urinyi filed the present proposed § 2255 motion, in which he claims that he was

convicted in violation of his constitutional rights. As was the case in Vasquez, “[w]hile [Urinyi’s

prior § 2255 motion] certainly concerned his [2004] conviction, it did not attack that conviction.” 

Id. at 390 (emphasis in original).

 Because Urinyi sought only reinstatement of the right to a direct appeal in his prior 2255

motion, we conclude that Urinyi’s proposed § 2255 motion represents his “one full opportunity

to seek collateral review” of his conviction and sentence. Id. Accordingly, Urinyi’s proposed

2255 motion is not “second or successive” under the AEDPA, and Urinyi does not require leave

of this Court to file the proposed motion in district court.

In so holding, we join a majority of our sister Circuits that have addressed the question of

whether a petitioner’s initial successful Section 2255 motion seeking reinstatement of the right to

a direct appeal renders a subsequent 2255 motion challenging the conviction or sentence

successive under the AEDPA. See Johnson v. United States, 362 F.3d 636, 638 (9th Cir. 2004);

In re Olabode, 325 F.3d 166, 169-73 (3d Cir. 2003) (examining cases); McIver v. United States,

307 F.3d 1327, 1331-32 (11th Cir. 2002); In re Goddard, 170 F.3d 435, 436-38 (4th Cir. 1999);

Shepeck v. United States, 150 F.3d 800, 800-01 (7th Cir. 1997) (per curiam); United States v.

Scott, 124 F.3d 1328, 1330 (10th Cir. 1997) (per curiam); but see Pratt v. United States, 129 F.3d

54, 61 (1st Cir. 1997) (reaching opposite conclusion); United States v. Orozco-Ramirez, 211

F.3d 862, 869 (5th Cir. 2000) (same). 
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We agree with the reasoning embraced by the majority of the Circuits: when a petitioner

is forced to use a Section 2255 motion to obtain a direct appeal, a court’s barring of a subsequent

2255 motion attacking the conviction and sentence would strip the petitioner of the opportunity

to lodge a “true collateral attack on his original sentence,” which is the explicit purpose of Setion

2255. Johnson, 362 F.3d at 638. Thus, by permitting the petitioner to file a subsequent 2255

motion attacking the conviction and sentence, the petitioner is restored to the procedural posture

he would have enjoyed if he had been represented by effective counsel who had timely filed a

notice of appeal. See Johnson, 362 F.3d at 638; Olabode, 325 F.3d at 172; McIver, 307 F.3d at

1331; Goddard, 170 F.3d at 437-38; Shepeck, 150 F.3d at 801; Scott, 124 F.3d at 1329-30.

CONCLUSION

For the foregoing reasons, Urinyi’s application is DENIED as unnecessary, and the

matter is REMANDED to the district court with instructions to entertain Urinyi’s proposed

Section 2255 motion.