Fisher v. Lantz et al

Filing 21

PRISCS - ORDER of Transfer to the USCA- want of jurisdiction.. Signed by Judge Janet Bond Arterton on 10/31/11. (Corriette, M.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

TRACY FISHER,
Petitioner,
v.
THERESA LANTZ and
J. WARDEN,
Respondents.

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PRISONER
Case No. 3:09cv2047(JBA)

RULING ON RESPONDENTS’ MOTION TO TRANSFER
The petitioner, Tracy Fisher, is currently incarcerated at
the Enfield Correctional Institution in Enfield, Connecticut.

He

has filed a third pro se petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2254 challenging his 1988 conviction for
murder, conspiracy to commit murder and assault in the first
degree.

The respondents ask the court to transfer this case to

the Court of Appeals as a second or successive petition filed
without first obtaining leave of the Court of Appeals.

For the

reasons that follow, the respondents’ motion will be granted and
the case transferred to the Court of Appeals.
On October 19, 1994, the petitioner filed a pro se petition
for writ of habeas corpus pursuant to 28 U.S.C. § 2254, Fisher v.
Meachum, 3:94cv2147(JBA) (D. Conn. Feb. 6, 1996).

On February 6,

1996, the court approved and adopted the recommended ruling
granting the respondent’s motion for summary judgment.

The court

addressed the merits of the petitioner’s claims, that he did not

knowingly and intelligently waive his Miranda rights and that the
evidence was insufficient to support the guilty verdict.

See

Resp’t’s Mem., Doc. #17, App. E.
On June 21, 2000, the petitioner filed a second federal
habeas petition, Fisher v. Strange, 3:00cv1182(SRU)(D. Conn. Apr.
30, 2001).

When the respondent sought to dismiss the action as a

second or successive petition filed without authorization from
the Court of Appeals, the petitioner moved to voluntarily
withdraw his petition.

The court granted the petitioner’s motion

and dismissed the action without prejudice.

The court, however,

cautioned the petitioner that he might be precluded from filing a
subsequent federal petition without first obtaining leave from
the Court of Appeals.

See Resp’t’s Mem. App. K.

Before a petitioner may bring a “second or successive”
habeas petition, he must “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).

not define “second or successive.”

The statute does

However, courts considering

this question have held that for a petition to be “second or
successive,” the first petition must have been decided “on the
merits.”

Murray v. Greiner, 394 F.3d 78, 80-81 (2d Cir. 2005).

This requirement is jurisdictional.

See Burton v. Stewart,

549 U.S. 147, 149, 157 (2007) (per curiam); Torres v. Senkowski,
316 F.3d 147, 151 (2d Cir. 2003) (holding that a district court

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presented with a second or successive petition under section 2254
without authorization from the Court of Appeals must transfer the
petition to the Second Circuit).

As a general rule, second or

successive petitions will be dismissed.

There are, however,

exceptions that the Court of Appeals may apply to authorize a
second or successive petition to proceed.

See 28 U.S.C. §

2244(b)(2).
In opposition to the respondent’s motion to transfer, the
petitioner states that his first federal habeas action was
dismissed for failure to exhaust state remedies and because he
did not timely file his response.

The petitioner is mistaken.

A

review of the court’s ruling in the first federal habeas action
shows that the court considered the petitioner’s claims on the
merits.

The petition was not dismissed on procedural grounds.

The court concludes that this is a second or successive
petition filed without obtaining leave from the Court of Appeals.
This court, therefore, lacks jurisdiction to entertain the merits
of the petitioner’s grounds for relief.
The respondent’s motion to transfer this case to the Court
of Appeal [Doc. #17] is GRANTED.

The Clerk is directed to

transfer this case to the Court of Appeals for the Second Circuit
to enable that court to determine whether the petitioner should
be permitted to file this petition in the district court.

The

Court concludes that an appeal of this order would not be taken

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in good faith.

Thus, a certificate of appealability will not

issue.
In addition, the petitioner is instructed not to file any
other petitions for writ of habeas corpus directed to his 1988
conviction without first obtaining authorization from the Court
of Appeals.
It is so ordered.
/s/
Janet Bond Arterton
United States District Judge
Dated at New Haven, Connecticut: October 31, 2011.

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