Marshall v. Faucher
Filing
27
MEMORANDUM AND OPINION (see attached). Petitioner's 24 Amended Motion for Reconsideration is DENIED. IT IS SO ORDERED. Signed by Judge Charles S. Haight, Jr. on March 30, 2022. (Noble, N.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
__________________________________________
)
JOHN MARSHALL SPENCE,
)
)
Plaintiff,
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Case No. 3:17-cv-01595 (CSH)
)
v.
)
)
MARCH 30, 2022
WARDEN FAUCHER,
)
)
Defendant.
)
__________________________________________)
MEMORANDUM AND OPINION ON PETITIONER’S AMENDED MOTION FOR
RECONSIDERATION [DOC. 24]
Petitioner John Marshall Spence (“Spence”), proceeding pro se, brings a motion designated
as an as an “Amended Motion to Reconsider Judgment.” This decision resolves it.
I.
BACKGROUND
A. Genesis of this Action and Denial of Plaintiff’s Initial Habeas Petition
On September 23, 2013, following a trial before a jury in the Connecticut Superior Court
for the Judicial District of Fairfield, Spence was found guilty on charges of possession of child
pornography. Doc. 15 at 1. He was sentenced to a term of imprisonment of eighteen years,
execution suspended after nine years, followed by twenty years of probation with special
conditions. Id. Spence challenged his conviction on direct appeal. Id. The Connecticut Appellate
Court affirmed the conviction, and the Connecticut Supreme Court denied certification to appeal.
Id. at 2. Spence then filed a petition for a writ of habeas corpus in state court. Id. This petition
was declined as the relief requested was not available. Id.
On September 17, 2017, Spence commenced a federal habeas action before this Court (the
“Initial Habeas Action”). See Doc. 1. The Court observed:
1
Spence raises four grounds for habeas relief. The first ground is
entitled, “the petitioner police encounter on the day of arrest,” Pet.,
Doc. 1 at 9, and asserts that Spence's Miranda rights were violated
on the day of his arrest. Specifically, Spence states that he was
“questioned on the day of 6/13/2012, in [his] home, and an
incriminating question was posed to [him] with the hopes of a
response, but the officer before questioning was started, failed to
administer pre-Miranda warnings, leaving the Petitioner in a state
where [he] had no choice but to answer, incriminating [himself] in
the process.” Id.
Spence's second ground for review is labeled, “the Connecticut
Appellate Court's decision to affirm the Petitioner's conviction.” Id.
at 11. Spence contends that the Connecticut Appellate Court’s
decision to affirm the conviction “should be revisited,” in light of
recent changes to the “rules to police encounters in this state.” Id.
Spence's third ground is entitled: “The state supreme court's denial
of petition for appeal.” Id. at 13. Spence argues that the “state
supreme court's denial of the petitioner's application, knowing the
substance or subject matter of what argument the petitioner raised,
was somewhat prejudicial due to the possible implications a
decision in the petitioner's favor could pose.” Id. (sic). The fourth
and final ground raised by Spence is labeled: “The state habeas
corpus denial of the petitioner application to obtain a writ of habeas
corpus.” Id. at 15. On this last ground, Spence states that his state
habeas petition was filed, and was given a docket number, but was
denied “days later and the writ returned to the petitioner, stating that
the petitioner's argument was not listed in the state of Connecticut's
practice book.” Id.
The Respondent argues that the petition should be denied.
Specifically, Respondent contends that the first two grounds that
Spence raises are intertwined and are without merit, as the state
court applied the correct law and reasonably decided the Miranda
issue. Respondent also argues that the third and fourth grounds for
relief are state law issues and thus do not present cognizable grounds
for habeas relief.
Doc. 15 at 5-6.
On June 7, 2018, the Court denied Spence’s petition for writ of habeas corpus on all four
grounds (“Initial Habeas Petition Denial”). First, the Court applied the “highly deferential standard
for evaluating state-court rulings” articulated by 28 U.S.C. § 2254(d). Id. at 14 (citing Woodford
2
v. Visciotti, 537 U.S. 19, 24 (2002)). The Court found that “the state court's decision that Spence
was not in custody, and consequently, that no Miranda warnings were necessary ‘fits within the
matrix’ of Supreme Court precedent . . . accordingly, the state court's decision falls within the
bounds of reason.” Id. (citing Yarborough v. Alvarado, 541 U.S. 652, 665 (2004)). Therefore, the
Court denied Spence’s petition for writ of habeas corpus on the first ground. The Court denied
Spence’s second ground for relief because it rested on a claimed error of state law, and “failure to
follow state law precedent does not warrant federal habeas relief.” Id. The Court denied Spence’s
third ground for relief because “there is no constitutional right to appeal a state conviction,” and
the third ground did not implicate federal law or a constitutional right. Id. at 15 (citing Estelle v.
Dorrough, 420 U.S. 534, 536 (1975)). Finally, the Court denied Spence’s fourth ground for relief
because “it is not the province of a federal habeas court to reexamine state-court determinations
on state-law questions,” and the decision to deny the writ was based on state law. Id. at 16 (citing
Estelle v. McGuire, 502 U.S. 62, 67-68 (1991)). Accordingly, the Initial Habeas Action was
terminated on June 11, 2018.
B. Subsequent Proceedings Before the Second Circuit and This Court
On May 13, 2019, Spence filed a notice of appeal to the United States Court of Appeals
for the Second Circuit (the “Second Circuit”) to vacate this Court’s judgment and for a certificate
of appealability. Doc. 19 at 1. On December 12, 2019, the Second Circuit determined sua sponte
that Spence’s notice of appeal was untimely filed and therefore dismissed his appeal for lack of
jurisdiction. Id.
On January 23, 2020, in a separate action, Spence v. Faucher, Docket No. 20-298 (“Second
Circuit Action”), Spence filed a “Motion for an Order Authorizing the District Court to Consider
a Successive or Second Habeas Corpus Application Pursuant to 28 U.S.C. §§ 2244 (b), 2254 by a
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Prisoner in State Custody” (“Motion to Authorize”). Second Circuit Action, Doc. 2. Spence’s
Motion to Authorize apparently argued that the first ground raised in his initial habeas petition
before this Court was a sufficient reason to grant the petition. See id. at 3, 5. However, he claimed
that his decision to raise three additional grounds related to his state court proceedings meant that
this Court’s “hands were tied” and it could not rule in his favor. Id. at 5. He argued that a second
or successive claim focusing only on the first ground for relief would “show merit to grant” him
habeas relief. Id.
On February 7, 2020, Spence filed a subsequent motion in the Second Circuit Action
asking for (1) permission to file a motion for certificate of appealability; (2) motion to proceed in
forma pauperis; and (3) motion to amend argument for relief sought (“Motion to Amend”). Second
Circuit Action, Doc. 10. The substance of this Motion to Amend elaborated upon Spence’s claim
that his Miranda rights were violated, which he asserted as the first ground for relief in the Initial
Habeas Action before this Court.
On February 21, 2020, the Second Circuit issued an order on all of Spence’s motions in the
Second Circuit Action, which is excerpted in full below:
Petitioner moves for leave to file a successive 28 U.S.C. § 2254
petition, and for leave to amend his motion and to seek a certificate
of appealability (“COA”) and in forma pauperis (“IFP[”]) status.
Upon due consideration, it is hereby ORDERED that the request to
amend is GRANTED, but the requests for a COA and IFP status are
DENIED as unnecessary. See Spitznas v. Boone, 464 F.3d 1213,
1218 (10th Cir. 2006); Liriano v. United States, 95 F.3d 119, 123
(2d Cir. 1996). It is further ORDERED that the motion for leave to
file a successive § 2254 petition is DENIED because Petitioner has
not made a prima facie showing that the requirements of 28 U.S.C.
§ 2244(b) are satisfied.
First, Petitioner’s claim that his statements to the police should have
been suppressed was raised in his first § 2254 petition, and “[a]
claim presented in a second or successive habeas corpus application
under section 2254 that was presented in a prior application shall be
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dismissed.” 28 U.S.C. § 2244(b)(1). Second, even if the claim is
considered new, Petitioner does not rely on “a new rule of
constitutional law, made retroactive to cases on collateral review by
the Supreme Court,” 28 U.S.C. § 2244(b)(2)(A), or newly
discovered evidence that, “if proven and viewed in light of the
evidence as a whole, would be sufficient to establish by clear and
convincing evidence that . . . no reasonable factfinder would have
found [him] guilty,” 28 U.S.C. § 2244(b)(2)(B).
Second Circuit Action, Doc. 18 at 1-2. On April 3, 2020, this order was docketed as a Mandate
(the “Second Circuit’s Mandate”). Id., Doc. 20.
On July 28, 2020, Spence filed a letter notice in the Initial Habeas Action suggesting that
the Second Circuit had “granted the motion to amend the original argument.” Doc. 21 at 1. His
letter also stated his intent to file “a motion to amend argument” directly with this Court. Doc. 21
at 1. In response to Spence’s letter, on October 23, 2020, this Court issued an Electronic Order
(the “October 23, 2020 Electronic Order”) stating:
The Second Circuit allowed Spence to amend his motion for a
successive habeas petition, so that Spence can cure the deficiencies
identified in the . . . April 3, 2020 Mandate. Contrary to Spence’s
suggestion that he may file an amended habeas petition directly with
this district court (see Doc. 21), this Court does not have jurisdiction
to hear Spence's successive habeas petition until the Second Circuit
approves Spence's amended motion for leave to file such petition
under § 2244(b). See 28 U.S.C. § 2244(b)(3)(A) (Before a second
or successive application permitted by this section is filed in the
district court, the applicant shall move in the appropriate court of
appeals for an order authorizing the district court to consider the
application.); Northrop v. United States, No. 3:08CV1081(MRK),
2009 WL 750344, at *2 (D. Conn. Mar. 20, 2009) (holding that
[g]iven the clear Second Circuit precedent holding that district
courts lack jurisdiction over successive [habeas] motions filed
without authorization from the Second Circuit, petitioner “was
required to get authorization from the Second Circuit before
bringing a successive [habeas] motion”) (citing 28 U.S.C. §§
2244(b)(3), 2255(h)). For this reason, and in accordance with the
Second Circuit's . . . Mandate, Spence must file an amended motion
for leave to file a successive habeas petition under § 2244 in the
Court of Appeals using the same docket number that he used for
other appellate filings in this matter.
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Dkt. 22.
On November 9, 2020, in the Second Circuit Action, Spence filed a letter expressing his
confusion and asking the Second Circuit to provide “a set of authorization papers” so that this
Court “can have the jurisdiction to move forward.” Second Circuit Action, Doc. 26 at 2.
On
November 10, 2020, the Second Circuit informed Spence that his letter was “rejected for filing”
because the “appeal is closed and [the Second Circuit] no longer has jurisdiction.” Id., Doc. 27 at
1. Accordingly, Spence’s letter was returned to Spence.
On November 24, 2020, also in the Second Circuit Action, Spence filed papers designated
as an “Amended Motion to Amend Argument.” Id., Doc. 28. In these papers, Spence asked the
Second Circuit “to grant the amended motion, giving [this Court] the authorization required.” Id.
at 3. On November 24, 2020, these papers were deemed “received in a closed case” and returned
to Spence. Second Circuit Action, Dkt. 29. In its corresponding Notice of Returned Papers, the
Second Circuit stated:
The Court has denied an authorization to file a second or successive
application for a writ of habeas corpus. The denial of an
authorization by the Court to file a second or successive application
is not appealable, nor can it be used as the subject of petition for
rehearing or a motion for consideration. See 28 U.S.C. §
2244(b)(3)(E).
Id., Doc. 29 at 1.
On December 18, 2020, Spence filed papers in the Second Circuit Action designated as an
“Amended Motion for Leave to File a Successive [Habeas] Petition § 2244.” Second Circuit
Action, Doc. 30 at 3. In these papers, Spence asked the Second Circuit to give this Court
jurisdiction so that he can “proceed with the Second Circuit Court[’]s Mandate to amend motion
granted in [his] favor.” Id. at 6. On December 21, 2020, these papers were deemed “received in
a closed case” and returned to Spence. Second Circuit Action, Dkt. 31. In its corresponding Notice
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of Returned Papers, the Second Circuit reiterated the finality of its decision denying Spence
authorization to file a second or successive application for habeas relief in this District Court. Id.,
Doc. 31.
C. The Present Motion and Spence’s Release from Incarceration
On January 12, 2021, in the Initial Habeas Action, Spence filed papers designated as a
motion to reconsider this Court’s Initial Habeas Petition Denial. See Doc. 23. On May 24, 2021,
Spence filed additional papers in the Initial Habeas Action designated as an “Amended Motion to
Reconsider Judgment.” See Doc. 24. Given Spence’s amended “motion to reconsider,” the Court
denied his original “motion to reconsider” as moot. Dkt. 26. The Court refers to Spence’s
amended “motion to reconsider,” the only pending motion in the Initial Habeas Action, as the
Present Motion.
The Present Motion asks the Court to reconsider the Initial Habeas Petition Denial because
“[c]onstitutional issues were overlooked.” Doc. 24 at 1. A portion of the Present Motion relates
to the alleged Miranda violation Spence asserted as the first ground for relief in his initial habeas
petition before this Court. See id. at 2-4. However, Spence also asserts that he “has found new,
more consequential, [c]onstitutional violations on the part of law enforcement.” Doc. 24 at 4. For
example, he argues that the officers present during his arrest “acted outside the scope of the
warrant[,] which only specified that property was to be seized” in violation of his Fourth
Amendment rights. Id. (emphasis omitted). In sum, he concludes that his “arrest and conviction
violate his rights protected under the Fourth, Fifth, Sixth, and Fourteenth Amendments,” and he is
“actually innocent of the crime(s) charged.” Id. Therefore, he requests that this Court “allow him
to file an amended brief to focus only on the claims raised [in the Present Motion].” Id.
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On August 1, 2021, Spence wrote to inform this Court of his new address, which is “not
the address of a correctional facility” because he is “no longer incarcerated.” Doc. 25 at 1. As
discussed above, on September 23, 2013, Spence was sentenced to a term of imprisonment of
eighteen years, execution suspended after nine years, followed by twenty years of probation with
special conditions. Based on Spence’s sentence and on his representation that he is no longer
incarcerated, the Court assumes that, as of August 1, 2021, Spence has been on probation with
special conditions. 1
II.
DISCUSSION
A. Spence’s Present Motion Should be Treated as a Second or Successive
Habeas Petition, which this Court Does Not Have Authorization to Consider
It is well-established that “[p]ro se submissions are reviewed with ‘special solicitude,’ and
‘must be construed liberally and interpreted to raise the strongest arguments that they suggest.’”
Bloodywone v. Bellnier, 778 F. App'x 52, 53 (2d Cir. 2019) (quoting Triestman v. Fed. Bureau of
Prisons, 470 F.3d 471, 474-75 (2d Cir. 2006)); see also Boykin v. KeyCorp., 521 F.3d 202, 214
1
The fact that Spence is no longer incarcerated does not moot Spence’s claim because he is
still serving his sentence. The power of federal courts is limited by the United States Constitution
to resolving live “cases” and “controversies.” U.S. Const. art. 3 § 2. This requirement means that
“throughout the litigation, the plaintiff ‘must have suffered, or be threatened with, an actual injury
traceable to the defendant and likely to be redressed by a favorable judicial decision.’” Spencer v.
Kemna, 523 U.S. 1, 7 (1998) (quoting Lewis v. Continental Bank Corp., 494 U.S. 472, 477 (1990)).
“In the habeas context, if a petitioner challenges a conviction for which he is still serving a
sentence, this linkage is obviously satisfied.” Cantoni v. Leclair, No. 12 CIV. 4353 VEC MHD,
2015 WL 518226, at *9 (S.D.N.Y. Feb. 9, 2015). Moreover, the Court has jurisdiction over the
Present Motion because Spence was “in custody pursuant to the judgment of a State court” at the
time the Present Motion was filed and at the time Spence’s initial habeas motion was filed. 28
U.S.C. § 2254(a). This would be true even if Spence was on probation with special conditions at
the time the Present Motion was filed. “An individual on probation or parole is ‘in custody’ for
purpose of federal habeas corpus proceedings.” Rosato v. N.Y. Cty. Dist. Attorney's Office, No.
09-CV-3742 (DLC), 2009 WL 4790849, at *4 (S.D.N.Y. Dec. 14, 2009) (citing U.S. ex rel. B. v.
Shelly, 430 F.2d 215, 217 n.3 (2d Cir. 1970)); see also Jones v. Cunningham, 371 U.S. 236, 24043 (holding that parole satisfies the “in custody” requirement of habeas petitions); Earley v.
Murray, 451 F.3d 71, 75 (2d Cir. 2006) (“Post-release supervision, admitting of the possibility of
revocation and additional jail time, is considered to be ‘custody.’”).
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(2d Cir. 2008) (“A document filed pro se is to be liberally construed and a pro se complaint,
however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted
by lawyers.” (quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007))).
Spence calls the Present Motion an “Amended Motion to Reconsider Judgment.” The
Present Motion does not reference any Local or Federal Rules. However, the Court infers that the
Present Motion was brought pursuant to Local Civil Rule 7(c), governing motions for
reconsideration, and Federal Rule of Civil Procedure 60(b), governing relief from a final judgment.
“The standard applied to motions under Rule 60(b) is substantially the same as that applied to
motions for reconsideration pursuant to Local Civil Rule 7(c).” Ashby v. Quiros, No. 3:17-CV916, 2021 WL 1940540, at *1 (D. Conn. May 14, 2021). If the Court were to construe the Present
Motion under Local Civil Rule 7(c), it would be denied because Spence filed it several years too
late. Local Civil Rule 7(c) requires that a motion for reconsideration be “filed and served within
seven (7) days of the filing of the decision of order from which such relief is sought.” The Court’s
Initial Habeas Petition Denial is dated June 7, 2018, and Spence did not file his initial “motion for
reconsideration” or the Present Motion until 2021. Therefore, he was well outside the timeframe
during which he could have filed a motion for reconsideration.
However, the Court determines that the present motion is not actually a “true” Rule 60(b)
motion; instead, it should be treated as a second or successive habeas petition subject to the
requirements of 28 U.S.C. § 2244. The Supreme Court has held that a 60(b) motion is a second
or successive petition if it in substance or effect asserts or reasserts a federal basis for relief from
the relevant state court’s judgment of conviction. Gonzalez v. Crosby, 545 U.S. 524, 530 (2005);
see also Spitznas v. Boone, 464 F.3d 1213, 1215 (10th Cir. 2006). By contrast, it is a “true” 60(b)
motion if it (1) only challenges a procedural ruling of the habeas court which precluded a merits
9
determination of the habeas application, Gonzalez, 545 U.S. at 532 n.4; or (2) challenges a defect
in the integrity of the federal habeas proceeding, provided that such a challenge does not lead
inextricably to a merits-based attack on the disposition of a prior habeas petition, id. at 532-33.
One example of a Rule 60(b) motion that should be treated as second or successive habeas petition
is a motion seeking to present a claim of constitutional error omitted from the movant’s initial
habeas petition. See id. at 530-32.
The Present Motion apparently seeks to present at least one claim of constitutional error
omitted from the movant’s initial habeas petition. Spence’s initial habeas petition asserted four
grounds for habeas relief. The first ground alleged that Spence’s Miranda rights were violated on
the day of his arrest; the other three grounds related to claimed errors during state court proceedings
related to his conviction. In the Present Motion, Spence asserts that he “has found new, more
consequential, [c]onstitutional violations,” including the allegation that his Fourth Amendment
rights were violated because the officers present during his arrest acted outside the scope of the
applicable warrant. Doc. 24 at 4. Spence did not present the allegation that his Fourth Amendment
rights were violated in his initial habeas petition, and the Present Motion asks this Court to allow
Spence to file an amended brief to focus only on the “new” constitutional claims it raises. Id. The
Present Motion also apparently seeks to reassert a federal basis for relief from the underlying
conviction by (1) restating the alleged Miranda violation from his initial habeas petition; and (2)
claiming that his “arrest and conviction violate his rights protected under the Fourth, Fifth, Sixth,
and Fourteenth Amendments.” Id. at 5.
Therefore, the Present Motion is properly characterized as a second or successive habeas
petition. Second or successive habeas petitions are subject to the requirements of 28 U.S.C. §
2244. This statute restricts the power of the federal courts to entertain such petitions. Before
10
Spence may file a second or successive petition challenging his state conviction in this district
court, he must successfully apply to the Second Circuit for an order authorizing the district court
to consider the petition. 2 See 28 U.S.C. § 2244(b)(3).
B. Transfer of the Present Motion to the Second Circuit Would Be Improper,
since the Court Interprets the Second Circuit’s Mandate Denying
Authorization as a Final Order
The Second Circuit has established a procedure by which a district court can transfer a
second or successive petition for habeas corpus when it is filed in the district court unaccompanied
by the required Second Circuit authorization. See generally Liriano v. United States, 95 F.3d 119
(2d Cir. 1996), as amended (Oct. 7, 1996). Implementing this procedure would result in Spence
having the opportunity to file a motion in the Second Circuit to authorize this Court to consider
his second or successive petition. See id. at 123. However, effectuating such a transfer in this case
would be improper because Spence already requested such authorization in the Second Circuit
Action, and this Court interprets the Second Circuit’s Mandate denying this request as a final order.
The Court notes that Spence’s filings in the Second Circuit Action reflect apparent
confusion about the finality of the Second Circuit’s Mandate filed on April 3, 2020. For example,
Spence’s December 18, 2020 filing in the Second Circuit Action refers to the “Second Circuit
Court[’]s Mandate to amend motion granted in [his] favor.” Second Circuit Action, Doc. 30 at 6;
see also id., Doc. 26 at 1 (noting his confusion and stating his intent to argue an “amended
Section 2244 imposes the following requirements on filing second or successive petitions:
“First, any claim that has already been adjudicated in a previous petition must be
dismissed,” Gonzalez, 545 U.S. at 529-30 (citing 28 U.S.C. § 2244(b)(1)); “[s]econd, any claim
that has not already been adjudicated must be dismissed unless it relies on either a new and
retroactive rule of constitutional law or new facts showing a high probability of actual
innocence,” id. at 530 (citing 28 U.S.C § 2244(b)(2)); and, “[t]hird, before the district court may
accept a successive petition for filing, the court of appeals must determine that it presents a claim
not previously raised that is sufficient to meet § 2244(b)(2)’s new-rule or actual-innocence
provisions,” id. (citing 28 U.S.C. § 2244(b)(3)).
2
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motion”). This confusion may stem from Spence’s belief that (1) the Second Circuit’s Mandate
granted him the right to amend his Motion for Authorization in subsequent filings and (2) therefore
the denial of this motion in the Second Circuit’s Mandate was not final. This belief may be rooted
in his interpretation of the following language in the Second Circuit’s Mandate:
Upon due consideration, it is hereby ORDERED that the request
to amend is GRANTED, but the requests for a COA and IFP status
are DENIED as unnecessary. See Spitznas v. Boone, 464 F.3d 1213,
1218 (10th Cir. 2006); Liriano v. United States, 95 F.3d 119, 123 (2d
Cir. 1996). It is further ORDERED that the motion for leave to
file a successive § 2254 petition is DENIED because Petitioner has
not made a prima facie showing that the requirements of 28 U.S.C. §
2244(b) are satisfied.
Second Circuit Action, Doc. 20 at 1 (emphasis added). In the Second Circuit Action, Spence filed
his Motion to Authorize first. Then, before the Second Circuit had ruled on Spence’s Motion to
Authorize, he separately filed his Motion to Amend.
The following discussion is meant to address any confusion on Spence’s part. In sum, the
Court determines that Spence’s apparent interpretation of the Second Circuit’s Mandate is
incorrect. The Court instead interprets the Second Circuit’s Mandate to be a final order on
Spence’s Motion for Authorization, which does not afford him any subsequent right to amend.
The Notices of Returned Papers filed in the Second Circuit Action on November 24, 2020
and December 21, 2020 (“Notices of Returned Papers”), discussed supra at 6-7, emphasize that
the Second Circuit denied Spence’s motion for authorization and that this denial represents a final
order. See also Second Circuit Action, Doc. 27 at 1 (“[A]ppeal is closed and this Court no longer
has jurisdiction”). The Notices of Returned Papers do not reference any right in the Second Circuit
Action for Spence to subsequently amend his Motion to Authorize. They also note that the papers
Spence apparently filed in an effort to obtain authorization “are being returned.” Id., Doc. 29 at 1;
Doc. 31 at 1.
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The Court interprets the Second Circuit’s Mandate as follows. In the Second Circuit’s
Mandate, the Second Circuit granted Spence’s Motion to Amend as a first step. Then, considering
the arguments advanced in Spence’s Motion to Amend as part of its decision, the Second Circuit
issued a final order denying Spence’s Motion for Authorization. 3 This interpretation differs from
Spence’s interpretation of the Second Circuit’s Mandate. Under Spence’s interpretation, the
Second Circuit denied Spence’s initial Motion for Authorization as a first step; then, the Second
Circuit granted Spence the right to amend his initial Motion for Authorization in a subsequent
filing. The Court finds that the Court’s interpretation of the Second Circuit’s Mandate fits more
comfortably with the language of the Notices of Returned Papers. Based on this interpretation of
the Second Circuit’s Mandate as a final order, the Court declines to transfer the Present Motion.
III.
CONCLUSION
For the foregoing reasons, the Present Motion, Doc. 24, is DENIED.
It is SO ORDERED.
Dated: New Haven, Connecticut
March 30, 2022
/s/ Charles S. Haight, Jr.__________
CHARLES S. HAIGHT, JR.
Senior United States District Judge
The Court notes that its October 23, 2020 Electronic Order stated that
“[t]he Second Circuit allowed Spence to amend his motion for a successive habeas petition, so that
Spence can cure the deficiencies identified in the. . . April 3, 2020 Mandate.” Dkt. 22. It also
stated that “Spence must file an amended motion for leave to file a successive habeas petition
under § 2244 in the Court of Appeals using the same docket number that he used for other appellate
filings in this matter.” Id. These statements may contradict the Court’s present interpretation of
the Second Circuit’s Mandate, which is predominantly based on the language of the Notices of
Returned Papers filed on November 24, 2020 and December 21, 2020 in the Second Circuit Action.
Therefore, this language is stricken from the Court’s October 23, 2020 Electronic Order.
3
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