Tatum v. Chapdelaine

Filing 8

ORDER of Transfer to the USCA - Successive Petition. See attached order. The Clerk of Court is directed to close the case. Signed by Judge Vanessa L. Bryant on 06/10/15. (Thomas, R.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
Edgar Tatum,
Petitioner,

:
:
:
:
:
:
:

v.
Chapdelaine, Warden,
Respondent.

CIVIL ACTION NO.
3:15-CV-00330-VLB
JUNE 10, 2015

RULING AND ORDER
In a 28 U.S.C. § 2254 petition dated February 17, 2015, Edgar Tatum seeks
to challenge his March 1990 state-court conviction for murder. [3:15-cv-00330VLB, Dkt. 1.] Tatum has already challenged this murder conviction in a prior
§ 2254 petition. [3:12-cv-01193-WWE, Dkt. 1.] The district court denied his prior
§ 2254 petition as untimely filed, [id., Dkt. 21]; the Court of Appeals declined to
issue a certificate of appealability, [2d. Cir. 13-4560, Dkt. 38]; and the Supreme
Court denied Tatum’s petition for writ of certiorari on November 10, 2014, Tatum
v. Murphy, 135 S. Ct. 486 (2014). Tatum’s instant § 2254 petition is “successive”
because, in addition to attacking the same state-court judgment, the prior § 2254
petition was decided on the merits, see Murray v. Greiner, 394 F.3d 78, 80-81 (2d
Cir. 2005) (dismissal “as tardy under the controlling statute of limitations . . .
constitutes an adjudication on the merits and subjects future challenges . . . to
the gatekeeping requirements of § 2244(b)(3)),1 and the Supreme Court denied

1

Tatum incorrectly argues that his prior § 2254 petition is not successive
because his prior § 2254 was denied as untimely. [3:15-cv-00330-VLB, Dkt. 1 at 54
(.pdf pagination)]. Tatum does not seek reconsideration of the district court’s
timeliness ruling, the subject of another pending motion filed after the final
adjudication of his initial § 2254 petition, [3:12-cv-01193-WWE, Dkt. 28]; rather, all
1

Tatum’s petition for writ of certiorari before he filed his instant § 2254 petition,
see Whab v. United States, 408 F.3d 116, 120 (2d Cir. 2005).
Before a petitioner may bring a 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). Because the Court of
Appeals has not issued an order authorizing this Court to consider Tatum’s
instant § 2254 petition, this Court lacks jurisdiction to entertain it. Accordingly,
the Clerk is directed to transfer this action, 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 his instant § 2254 petition in the district
court. Further, Tatum’s motion to appoint counsel [Dkt. #3] is DENIED as moot.
IT IS SO ORDERED.
/s/________
Vanessa L. Bryant
United States District Judge
Dated at Hartford, Connecticut, June 10, 2015.

of his grounds for relief are predicated on alleged errors occurring during his
criminal proceedings or on the state habeas court’s resolution of those alleged
errors, see Gonzales v. Crosby, 545 U.S. 524, 530 (2005) (successive habeas
petition seeks relief from state court’s judgment of conviction; Rule 60(b) motion
attacks integrity of federal habeas proceedings).
2