`Case 1:09-cv-10048-PAC Document 114 Filed 11/21/17 Page 1 of 2
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`USDC SDNY
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
`_______________________________________________________________x
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`DOCUMENT
`ELEWROMCALM artist)
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`ERIC A. KLEIN,
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`—against—
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`Petitioner,
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`UNITED STATES OF AMERICA,
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`Respondent.
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`_
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`:
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`DOC it: W ____
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`DATE" FILED
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`09 Civ. 10048 (PAC)
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`OPINION AND ORDER
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`_______________________________________________________________x
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`HONORABLE PAUL A. CROTTY, United States District Judge:
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`Petitioner Eric A. Klein (“Klein”), pro se, moves for relief from his conviction. On July
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`8, 2005, a jury convicted Klein of wire fraud and conspiring to commit wire fraud. Klein was
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`sentenced to a term of 51 months imprisonment and three years supervised release, and ordered
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`to pay $819,779 in restitution. Since his sentencing, Klein has filed numerous meritless appeals
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`and dozens of baseless motions relating to his 2005 criminal conviction. The Court presumes
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`familiarity with the facts as set forth in the October 17, 2012 Memorandum and Order, which
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`denied Klein’s 28 U.S.C. § 2255 petition, see Klein v. United States, No. 09 cv. 10048, 2012 WL
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`5177493 (S.D.N.Y. Oct, 2012), and the November 8, 2013 Memorandum and Order, which
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`denied Klein’s Rule 60(b) motion for reconsideration of that denial, see Klein v. United States,
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`No. 09 cv. 10048, 2013 WL 5966889 (S.D.N.Y. Nov. 8, 2013).
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`Currently before this Court is Klein’s most recent attempt to relitigate his conviction,
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`which he styles as a motion for an “order to show cause” rather than as a second or successive
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`§ 2255 petition. Dkt. No. 113. No Federal Rule of Civil Procedure authorizes such a motion in
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`these circumstances. Rather, because Klein’s motion challenges his conviction as being
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`Case 1:09-cv-10048-PAC Document 114 Filed 11/21/17 Page 2 of 2
`Case 1:09-cv-10048-PAC Document 114 Filed 11/21/17 Page 2 of 2
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`“imposed in violation of the Constitution or laws of the United States,” the Court hereby
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`construes it as a second or successive § 2255 petition and TRANSFERS it to the United States
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`Court of Appeals for the Second Circuit for performance of its gatekeeping function. See 28
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`U.S.C. § 2255(a); Whab v. United States, 408 F.3d 116, 118 (2d Cir. 2005) (“[A] ‘second or
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`successive’ petition for relief under § 2255 may not be filed in a district court, unless the
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`petitioner first obtains the authorization of the court of appeals, certifying that the petition
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`conforms to specified statutory requirements”); Jiminian v. Nash, 245 F.3d 144, 148 (2d Cir.
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`2001) ([then presented with a [postwconviction motion] raising previously available claims
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`appropriately the subject of a § 2255 motion, district courts should construe the petition as a
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`second or successive § 2255 motion and transfer it to this Court for certification, so long as the
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`prisoner had a prior § 2255 motion dismissed on the merits”).
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`Dated: New York, New York
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`November 21, 2017
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`Copy Mailed To:
`Eric A. Klein
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`200 Knickerbocker Road
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`Demarest, New Jersey 07627
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`SO ORDERED
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`étc/4/6ch
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`PAUL A. CROTTY
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`United States District Judge
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