Madden v. Herbert

26-485 Madden v. Herbert United States Court of Appeals For the Second Circuit August Term 2025 Submi ed: July 22, 2026 Decided: November 4, 2026 No. 26-485 EDWIN MADDEN, Petitioner-Appellant, v. VICTOR HERBERT, Respondent-Appellee. Appeal from the United States District Court for the Eastern District of New York No. 1:01CV06188, William F. Kun , II, Judge. Before: ROBINSON, PÉREZ, and MERRIAM, Circuit Judges.  Edwin Madden, proceeding pro se, moves for leave to proceed in forma pauperis, appointment of counsel, an order requiring production of certain state court records, and a certificate of appealability. Madden’s February 2021 motion to reopen this 28 U.S.C. §2254 habeas proceeding was properly construed by the District Court as a successive petition for a writ of habeas corpus. See Gonzalez v. Crosby, 545 U.S. 524 (2005). However, the District Court erred in dismissing the successive petition; the petition should have been transferred to this Court after a determination that it was in the interest of justice to do so. See Liriano v. United States, 95 F.3d 119, 123 (2d Cir. 1996) (per curiam), as amended (Oct. 7, 1996). We thus “construe the appeal before us as a motion for authorization to file a second habeas application under §2254.” Torres v. Senkowski, 316 F.3d 147, 152 (2d Cir. 2003). Upon due consideration, it is hereby ORDERED that the District Court’s judgment is VACATED, Madden’s appeal is construed as a motion for authorization to file a successive petition under 28 U.S.C. §2254, and that motion is DENIED because Madden has not shown that his claim relies on a “new rule of constitutional law” or relies on a “factual predicate” that “could not have been discovered previously through the exercise of due diligence” as required by 28 U.S.C. §2244(b)(2). Madden’s remaining motions are denied as moot. Edwin Madden, pro se, Beacon, NY. Amy Appelbaum, Assistant District A orney, for Eric Gonzalez, Kings County District A orney, Brooklyn, NY, for Respondent Victor Herbert. SARAH A. L. MERRIAM, Circuit Judge: Edwin Madden, proceeding pro se, moves for leave to proceed in forma pauperis, appointment of counsel, an order requiring production of certain state court records, and a certificate of appealability. Specifically, Madden seeks to 2 appeal the judgment of the Eastern District of New York dismissing a motion to reopen that was construed by the District Court as a successive petition for relief from a state court conviction and sentence under 28 U.S.C. §2254. Madden raises several constitutional issues, “each of which,” he contends, “presents at least a debatable constitutional question among reasonable jurists within the meaning of 28 U.S.C. §2253(c)(2).” Motion at 8. “The merits of [Madden’s] motion would not ordinarily prompt a published opinion. We write, however, to” confirm and reiterate “the procedure to be followed when, as occurred in this case, a second or successive petition for habeas corpus by a state prisoner . . . is filed in a district court in this circuit unaccompanied by the required §2244(b)(3) motion.” Liriano v. United States, 95 F.3d 119, 122 (2d Cir. 1996) (per curiam). BACKGROUND On June 15, 1998, Madden filed a §2254 petition in the Eastern District of New York challenging his 1994 New York state court conviction. See Petition for Writ of Habeas Corpus, Madden v. Artuz, No. 1:98CV04229 (E.D.N.Y. June 15, 1998) (Doc. #2). That petition was dismissed without prejudice on November 2, 3 1998. See Order Dismissing the Petition for a Writ of Habeas Corpus, Madden v. Artuz, No. 1:98CV04229 (E.D.N.Y. Nov. 2, 1998) (Doc. #11). On September 13, 2001, Madden filed another habeas petition in the Eastern District of New York, opening a new civil case. See Petition for Writ of Habeas Corpus, Madden v. Herbert, No. 1:01CV06188 (E.D.N.Y. Sept. 13, 2001) (Doc. #1). That petition was dismissed as time-barred on July 30, 2003. See Judgment, Madden v. Herbert, No. 1:01CV06188 (E.D.N.Y. July 31, 2003) (Doc. #20). Madden appealed the order of dismissal and moved in this Court for a certificate of appealability. This Court denied the request for a certificate of appealability and dismissed the appeal. Order, Madden v. Herbert, No. 03-2593 (2d Cir. Feb. 13, 2004); see also Madden v. Herbert, No. 1:01CV06188 (E.D.N.Y. Sept. 28, 2006) (Doc. #27). Madden subsequently sought leave of this Court to file a successive §2254 petition in 2006 and again in 2007. Both requests were denied. See Order, Madden v. A orney General of the State of New York, No. 06-2803 (2d Cir. August 10, 2006); Order, Madden v. Artuz, No. 07-0461 (2d Cir. March 6, 2007); see also Madden v. Artuz, No.:1:98CV04229 (E.D.N.Y. Sept. 28, 2006) (Doc. #15), id. (E.D.N.Y. June 13, 2007) (Doc. #16). 4  On February 8, 2021, Madden moved to reopen his 2001 action pursuant to Rule 60(b) of the Federal Rules of Civil Procedure. See Motion to Reopen Case, Madden v. Herbert, No. 1:01CV06188 (E.D.N.Y. Feb. 8, 2021) (Doc. #30). After Respondent failed to comply with two orders requiring a response to Madden’s motion, the District Court granted Madden’s motion to reopen and ordered Madden to file a substantive habeas petition. See Order, Madden v. Herbert, No. 1:01CV06188 (E.D.N.Y. December 13, 2023) (Doc. #41). Madden filed the requested habeas petition on February 16, 2024. See Notice of Motion, Madden v. Herbert, No. 1:01CV06188 (E.D.N.Y. Feb. 16, 2024) (Doc. #42). On February 26, 2024, the District Court dismissed the February 2024 petition. See Madden v. Herbert, No. 1:01CV06188, 2024 WL 814662 (E.D.N.Y. Feb. 26, 2024). The District Court construed the motion to reopen as a successive habeas petition and held that because Madden had not received authorization from this Court to file a successive application pursuant to §2244(b)(3), the District Court lacked jurisdiction. See id. at *2-3. The District Court dismissed the petition without awaiting a response from the Respondent. See id. The District Court also held that it “lack[ed] jurisdiction to consider the arguments raised in the 60(b) motion itself,” concluding that the 60(b) motion should be 5 construed as a successive habeas petition subject to the requirements of 28 U.S.C. §2244. Id. at *3. Madden filed a motion for reconsideration, which was docketed on April 9, 2024. See Notice of Motion for Reconsideration, Madden v. Herbert, No. 1:01CV06188 (E.D.N.Y. Apr. 9, 2024) (Doc. #46). The motion was denied on April 22, 2024; however, the record does not reflect that notice of the denial was provided to Madden. Accordingly, the time for Madden to appeal was reopened, and his notice of appeal was docketed on March 2, 2026. See Notice of Appeal, Madden v. Herbert, No. 1:01CV06188 (E.D.N.Y. March 2, 2026) (Doc. #62). DISCUSSION I. The District Court erred by dismissing the petition. We review questions of statutory interpretation de novo. See, e.g., United States v. Sullivan, 118 F.4th 170, 199 (2d Cir. 2024). Madden’s petition is governed by the Antiterrorism and Effective Death Penalty Act (AEDPA), which imposes “stringent limits” on a petitioner’s ability to file a second or successive petition for a writ of habeas corpus. Adams v. United States, 155 F.3d 582, 583 (2d Cir. 1998) (per curiam). 6  The AEDPA places both substantive and procedural limitations on a petitioner’s ability to file a successive habeas petition. Substantively, the AEDPA requires dismissal of second and successive §2254 petitions unless the petitioner shows that the claim in the petition “relies on a new rule of constitutional law, made retroactive . . . by the Supreme Court” or presents facts that “could not have been discovered previously through the exercise of due diligence” and “if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.” 28 U.S.C. §2244(b)(2). Procedurally, “[b]efore a second or successive application permi ed 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). Accordingly, “[t]o file a second or successive application in a district court, a prisoner must first obtain leave from the court of appeals based on a ‘prima facie showing’ that his petition satisfies the statute’s gatekeeping requirements.” Banister v. Davis, 590 U.S. 504, 509 (2020) (quoting 28 U.S.C. §2244(b)(3)(C)). Absent leave of the 7 Court of Appeals, a district court lacks jurisdiction to consider the merits of the successive habeas petition. If a petitioner fails to obtain authorization from this Court before filing a successive petition in district court, the district court should generally transfer the successive petition to this Court; the district court may not resolve the merits. See Torres v. Senkowski, 316 F.3d 147, 151 (2d Cir. 2003) (“Under AEDPA’s authorization requirement for second and successive §2254 applications, the district court should have transferred [petitioner’s] application to this Court, rather than deciding it on the merits.”). We have consistently applied and upheld this rule. See, e.g., Gandarilla v. Artuz, 322 F.3d 182, 186 (2d Cir. 2003) (“When a second or successive petition or motion is filed in the district court, the district court must transfer the new petition or motion to the court of appeals for a determination of whether the petition may be filed.”); Forbes v. United States, 121 F.4th 1013, 1016 (2d Cir. 2024) (per curiam) (“[W]e have held that district courts lack jurisdiction to rule on the merits of successive claims and should transfer successive claims to this Court.”). The requirement of transfer is anchored in 28 U.S.C. §1631, which provides that whenever a civil action is filed and the “court finds that there is a want of 8 jurisdiction, the court shall, if it is in the interest of justice, transfer such action or appeal to any other such court . . . in which the action or appeal could have been brought.” 28 U.S.C. §1631; see Torres, 316 F.3d at 151-52 (“[W]e have held that a district court must transfer uncertified successive motions to this Court pursuant to 28 U.S.C. §1631, the provision authorizing transfer to cure want of jurisdiction.”). In this context, transfer is the rule, rather than the exception, and the “interest of justice” inquiry is necessarily a limited one: In determining whether a transfer is in the interest of justice, the equities of dismissing a claim when it could be transferred should be carefully weighed. Factors militating for a transfer include a finding that a new action filed by the litigant would be barred as untimely, and a finding that the original action was filed in good faith. These considerations are clearly applicable to cases where a second or successive petition for habeas corpus relief or §2255 motion is filed directly in a district court. The filing will almost invariably reflect ignorance concerning the new procedural requirements of §2244(b)(3), rather than an effort to circumvent those requirements. Liriano, 95 F.3d at 122 (citation modified).1 While the language of section 1631 thus preserves some discretion for a district court to dismiss, rather than transfer, 1 Our transfer rule applies to unauthorized successive petitions under both §2254 and §2255. See Li lejohn v. Artuz, 271 F.3d 360, 363 n.1 (2d Cir. 2001) (per curiam); see also Torres, 316 F.3d at 151 (noting that “there is no material difference between §2254 and §2255” with respect to the gatekeeping requirements applicable to “second or successive” petitions under AEDPA). 9 a plainly meritless successive petition, it is generally in the interest of justice to transfer the unauthorized successive petition to this Court, rather than dismiss the petition. See id. at 123 (“We accordingly rule that when a second or successive petition for habeas corpus relief or §2255 motion is filed in a district court without the authorization by this Court that is mandated by §2244(b)(3), the district court should transfer the petition or motion to this Court in the interest of justice pursuant to §1631.”). “It is important that this situation be addressed by a clear and comprehensive procedure throughout the Second Circuit.” Id. Our caselaw makes plain that the procedure is for a district court to transfer an unauthorized successive habeas petition to this Court rather than dismissing it; such a transfer will ordinarily be in the interest of justice. Applying these principles, we conclude that the District Court erred by dismissing Madden’s petition, rather than transferring it to this Court, without “carefully” weighing “the equities of dismissing a claim when it could be transferred.” Id. at 122. 10 II. This Court can construe Madden’s appeal as a motion for authorization to file a successive petition. Under this Court’s consistent practice, Madden’s appeal can be construed as a motion for authorization to file a successive petition, rather than an appeal of the District Court’s erroneous decision to dismiss his petition. When faced with an appeal of a district court’s dismissal or denial of an unauthorized successive petition on the merits, this Court has chosen to vacate the district court’s order, construe the appeal as a motion for leave to file a successive petition, and decide the authorization request. See, e.g., Forbes, 121 F.4th at 1016; cf. Hilario-Bello v. United States, No. 25-3233, 2026 WL 1862383, at *1 (2d Cir. June 11, 2026) (vacating district court order denying, on the merits, 60(b) motion in §2255 proceedings and construing COA motion as motion for leave to file a successive §2255 motion); Rheaume v. Baker, No. 20-3052, 2021 WL 866723, at *1 (2d Cir. Jan. 8, 2021) (vacating district court order dismissing habeas petition and construing the appeal as a motion for leave to file a successive §2254 petition). The same procedure applies when the district court errs by dismissing the successive petition on jurisdictional grounds.2 2 Madden does not need a COA to appeal the erroneous dismissal. The error being raised on appeal is not an error in the assessment of the merits – substantive or procedural – of the habeas petition itself. Rather, the error here is the district court’s 11  While this Court may not always be able to construe an improperly dismissed petition as a motion for authorization to file a successive petition, the record before us is sufficient to enable us to do so here. We can construe Madden’s petition as a motion for authorization to file a second habeas application because Madden makes all the substantive arguments this Court would expect him to make in a motion for leave to file a successive petition. Madden argues that he presents new claims of Brady violations3 and ineffective assistance of counsel, and that these claims rely on facts that could not have been discovered previously through diligence. See Mot. at 15-16. These arguments are fully presented, so Madden is not prejudiced by our construing his appeal as a motion for leave to file a successive petition. violation of our rule requiring it to consider transfer of the ma er when doing so is in the interest of justice, so that this Court may assess whether leave should be granted to file a successive petition. 3 Brady v. Maryland, 373 U.S. 83, 87 (1963) (“We now hold that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.”). 12 III. Madden does not meet the requirements for filing a successive petition. Construing the present appeal as a motion for leave to file a successive §2254 petition, the motion is denied. Madden has not made a prima facie showing that he meets either of the criteria under section 2244(b)(2) to file a successive petition. Under section 2244(b)(2), “[a] claim presented in a second or successive habeas corpus application under section 2254 that was not presented in a prior application shall be dismissed unless” the petitioner makes a prima facie showing that (1) “the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable,” or (2) the claim is based on newly discovered facts that “could not have been discovered previously through the exercise of due diligence” and “would be sufficient to establish by clear and convincing evidence that . . . no reasonable factfinder would have found the applicant guilty of the underlying offense.” 28 U.S.C. §2244(b)(2); see also Garcia v. Superintendent of Great Meadow Corr. Facility, 841 F.3d 581, 584 n.1 (2d Cir. 2016) (per curiam). Madden fails to meet either of these criteria. 13  Madden does not contend that his claim is based on a new rule of constitutional law. Nor does Madden show that he relies on a newly discovered factual predicate that could not have been previously discovered through due diligence. Even if Madden were able to show that the purportedly new facts on which he relies – facts based on evidence obtained in 2015 after he hired a private investigator – were previously undiscoverable with due diligence, he does not show that these facts, if proven, “would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found [him] guilty of the underlying offense.” 4 28 U.S.C. §2244(b)(2)(B)(ii). We therefore deny Madden’s request for leave to file a successive habeas petition. CONCLUSION For the reasons stated, we VACATE the District Court’s judgment, construe Madden’s appeal as a motion for authorization to file a successive petition under 28 U.S.C. §2254, and DENY that motion because Madden has not 4 To the extent Madden raises claims and evidence that were presented in his previous application, see Mot. at 9-10, those fall outside the scope of §2244(b)(2) and are dismissed pursuant to 28 U.S.C. §2244(b)(1), which requires that “[a] claim presented in a second or successive habeas corpus application . . . that was presented in a prior application shall be dismissed.” 14 pointed to newly discovered information that, “if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.” 28 U.S.C. §2244(b)(2)(B)(ii). Madden’s remaining motions are DENIED as moot. 15