Harris v. Commissioner of Corr.

Filing 17

PRISCS-RULING denying 10 Motion to Dismiss. Signed by Judge Janet Bond Arterton on 3/22/2012. (Payton, R.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

LEROY HARRIS
v.
COMMISSIONER OF CORRECTION

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PRISONER
Case No. 3:11cv869(JBA)

RULING ON RESPONDENT’S MOTION TO DISMISS [Doc. #10]
Petitioner, Leroy Harris (“Harris”), currently confined at
the MacDougall-Walker Correctional Center in Suffield,
Connecticut, commenced this action for writ of habeas corpus pro
se pursuant to 28 U.S.C. § 2254.

He challenges his Connecticut

conviction for robbery and sexual assault.

The respondent has

filed a motion to dismiss the petition on the grounds that the
petition is untimely and it is a second or successive petition
filed without authorization from the court of appeals.

For the

reasons that follow, the respondent’s motion to dismiss will be
denied and the case transferred to the Court of Appeals.
On July 17, 1990, the Connecticut Appellate Court affirmed
Harris’ conviction on three counts of robbery in the first degree
and one count of sexual assault in the first degree.

See State

v. Harris, 22 Conn. App. 329, 330-37, 577 A.2d 1077 (1990).

On

February 6, 1996, the Connecticut Appellate Court affirmed the
dismissal of Harris’ first state habeas petition.

See Harris v.

Commissioner of Correction, 40 Conn. App. 250, 671 A.2d 359

(1996).
On June 9, 1997, Harris filed his first federal petition for
writ of habeas corpus.
Harris.

Counsel was appointed to represent

The respondent moved to dismiss on the ground that the

petition was time-barred.

The court granted the respondent’s

motion to dismiss, concluding that the petition was untimely
filed and Harris failed to establish circumstances warranting
equitable tolling.

See Harris v. Connecticut, No. 3:97cv1135

(GLG) (D. Conn. July 31, 1998) (provided as Resp’t’s App. I).
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).

In Murray, the Second Circuit held that the prior dismissal
of a habeas corpus petition as time-barred “constitutes an
adjudication on the merits that renders further petitions under §
2254 challenging the same conviction ‘second or successive’
petitions under § 2244(b).”
agree.

Id. at 81.

Other courts of appeal

See Jordan v. Secretary, Dep’t of Corrections, 485 F.3d

1351, 1353 (11th Cir.) (requiring petitioner to obtain order from

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appellate court before filing second or successive § 2254
petition after first petition was dismissed as untimely), cert.
denied sub nom. Jordan v. McDonough, 552 U.S. 979 (2007); Altman
v. Benik, 337 F.3d 764, 766 (7th Cir. 2003) (previous § 2254
petition dismissed as untimely constitutes a prior application
adjudicated on the merits “because a statute of limitations bar
is not a curable technical or procedural deficiency but rather
operates as an irremediable defect barring consideration of the
petitioner’s substantive claims” and, therefore, the petitioner
needs the appellate “court’s permission to file another
petition.”).
Judge Goettel’s dismissal of Harris’ first federal habeas
action as barred by the statute of limitations renders this
petition a second or successive petition.

Thus, this court lacks

jurisdiction to entertain the merits of the petition unless the
court of appeals authorizes the court to do so.
The court now must determine whether to dismiss this action
or transfer it to the Second Circuit for a determination whether
the district court should be authorized to consider the second or
successive petition.

The Second Circuit has expressed its

preference that when a second or successive petition is filed in
the district court without prior authorization, the district
court should transfer the petition to the Second Circuit in the
interests of justice pursuant to 28 U.S.C. § 1631.

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Although,

after reviewing the petition, the motion to dismiss and Harris’
response, the court concludes that Harris’ chances of succeeding
on his request to file a second or successive petition are
extremely slim, the court nonethless will transfer this case to
the Second Circuit for review.
In summary, 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 Harris’ grounds for relief or the
respondents’ arguments in their motion to dismiss.

Accordingly,

the Clerk is directed to transfer this case, pursuant to 28
U.S.C. § 1631, 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

respondents’ motion to dismiss [Doc. #10] is DENIED as moot.

The

Court concludes that an appeal of this order would not be taken
in good faith.

Thus, a certificate of appealability will not

issue.
It is so ordered.
/s/
Janet Bond Arterton
United States District Judge
Dated at New Haven, Connecticut: March 22, 2012.

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