Opinion
No. 07-3128.
Filed On: February 5, 2008.
BEFORE: Ginsburg, Chief Judge, and Randolph and Tatel, Circuit Judges.
ORDER
Upon consideration of the motion for leave to proceed in forma pauperis, and the motion for leave to file a second or successive motion pursuant to 28 U.S.C. § 2255 (styled as a petition for writ [of] habeas corpus invoking Fed.R.Civ.P. 60(b)(4) [and] (6) and Fed.R.Civ.P. 54(b)), the opposition thereto, and the reply, it is
ORDERED that the motion for leave to proceed in forma pauperis be granted. It is
FURTHER ORDERED that the motion for leave to file a successive § 2255 motion be denied. The motion has been so construed because it appears to challenge the resolution of his previous motion on the merits. See Gonzalez v. Crosby, 545 U.S. 524, 532 (2005). Petitioner's arguments depend on his claim that the government was required, as an element of the crime of felony murder, to charge and prove that he intended to aid or abet the commission of a homicide, and that claim was adequately addressed in the prior § 2255 proceeding. See Cunningham v. United States, No. 05-1200 (D.D.C. Jul. 19, 2005), aff'd, No. 05-5497 (D.C. Cir. Nov. 27, 2006), cert. denied, No. 06-9795 (Apr. 2, 2007). Contrary to petitioner's argument, the district court's alleged failure to adjudicate his constitutional claims does not implicate that court's subject matter jurisdiction. Petitioner has not shown that his motion is based either on newly discovered evidence or a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable. See 28 U.S.C. § 2255; United States v. Ortiz, 136 F.3d 161, 163-64 (D.C. Cir. 1998).
Pursuant to D.C. Circuit Rule 36, this disposition will not be published.