Simmons v. Honorable A. Gail Prudenti et al

Filing 3

MEMORANDUM AND ORDER. For the reasons set forth in the attached Memorandum and Order, the "application for writ of certiorari" is dismissed as the court has no jurisdiction to issue such a writ. Alternatively, if petitioner seeks to challe nge his 1990 conviction in federal court by means of a 28 U.S.C. § 2254 petition for a writ of habeas corpus, he must apply to the United States Court of Appeals for the Second Circuit for permission to file a successive petition. The Court cer tifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order would not be taken in good faith and therefore in forma pauperis status is denied for the purpose of an appeal. The Clerk is respectfully requested to serve a copy of this Memorandum and Order on pro se petitioner and note service on the docket, enter judgment in favor of respondents, dismiss this action and close this case. Ordered by Judge Kiyo A. Matsumoto on 1/26/2012. (Ravi, Sagar)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-------------------------------------X
NOAH HANCOCK SIMMONS,
Petitioner,

NOT FOR PRINT OR
ELECTRONIC PUBLICATION

MEMORANDUM AND ORDER

-against-

12-CV-00188

HONORABLE A. GAIL PRUDENTI,
Presiding Justice, Appellate
Division, Second Judicial Department;
HONORABLE JOHN G. INGRAM, Justice,
Supreme Court, Kings County;
CHARLES J. HYNES, District Attorney,
Kings County
Respondents.
-------------------------------------X
MATSUMOTO, United States District Judge:
Pro se Petitioner Noah Hancock Simmons (“petitioner”),
currently incarcerated at Orleans Correctional Facility in Albion,
New York, filed the instant “application for writ of certiorari”
pursuant to 28 U.S.C. § 1651(a).

(ECF No. 1, Petition (“Pet.”) at

1.1) The court grants petitioner’s request to proceed in forma
pauperis solely for the purpose of this Memorandum and Order.

(See

ECF No. 2, Motion for Leave to Proceed in forma pauperis.) For the
reasons set forth below, petitioner’s application is dismissed.

1

The Petition includes several additional documents that have been
consecutively paginated by the court’s Electronic Filing System (“ECF”). The
court refers to the page numbers of the Petition assigned by ECF when referring
to these additional documents.

1

BACKGROUND
On June 18, 1990, after a jury trial in New York State
Supreme Court, Kings County, petitioner was convicted of Attempted
Murder in the Second Degree, Attempted Robbery in the First Degree,
and Criminal Possession of a Weapon in the Second Degree (the “1990
Conviction”).

(Pet. at 16.)

On October 17, 1995, petitioner filed

a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254
challenging his conviction, which was denied on July 13, 2000.

See

Simmons v. Artuz, No. 95-CV-04229 (ARR) (E.D.N.Y. July 13, 2000),
appeal dismissed, Mandate, No. 00-2532 (2d Cir. Jan. 8, 2001).

On

October 11, 2002, the United States Court of Appeals for the Second
Circuit issued a mandate denying petitioner’s application to file
a second or successive 28 U.S.C. § 2254 petition.
Artuz, No. 02-3617 (2d Cir. Oct. 11, 2002).

See Simmons v.

Subsequently, on July

23, 2004, the Second Circuit denied a second application by petitioner
to file a successive habeas petition.
04-1964-op (2d Cir. July 23, 2004).

See Simmons v. Poole, No.

Finally, on August 30, 2004, the

Second Circuit denied a third application to file a successive habeas
petition. See Simmons v. Artuz, No. 04-2909-pr (2d Cir. Aug. 30,
2004).
On October 21, 2009, petitioner filed a second or successive
28 U.S.C. § 2254 petition for a writ of habeas corpus in the Eastern
District of New York that was transferred to the Second Circuit
pursuant to 28 U.S.C. § 2244(b)(3)(A).
2

See Simmons v. People of the

State of New York, No. 09-CV-04654 (ARR) (E.D.N.Y. Jan. 13, 2010).
Subsequently, the Second Circuit issued mandates denying two more
applications by petitioner to file a second or successive 28 U.S.C.
§ 2254 petition. See Simmons v. People of the State of New York, No.
10-120-op (2d Cir. Mar. 16, 2010); Simmons v. People of the State
of New York, No. 10-1064-op (2d Cir. June 29, 2010), reconsideration
denied, Motion Order (2d. Cir. Aug. 17, 2010).
On January 9, 2012, petitioner filed the instant petition.
Although not clearly presented, petitioner appears to challenge the
denial of his most recent attempt to overturn the 1990 Conviction
in state court.

Attached to the Petition is a June 14, 2011 Order

issued by New York State Supreme Court Justice John G. Ingram, a
respondent in this case, denying as procedurally barred petitioner’s
N.Y. Crim. Proc. § 440.10 motion to vacate his conviction on the
grounds that the testimony of his codefendant should have been
suppressed as the fruit of a warrantless arrest.

(Pet. at 16-20.)

Petitioner also attached his underlying N.Y. Crim. Proc. § 440.10
motion dated March 5, 2011 (Pet. at 11-15) as well as a letter
indicating that petitioner has filed an application for leave to
appeal Justice Ingram’s June 14, 2011 Order in the New York State
Appellate Division, Second Judicial Department.

3

(Pet. at 21.)

DISCUSSION
The All Writs Act, 28 U.S.C. § 1651, provides that federal
courts “may issue all writs necessary or appropriate in aid of their
respective jurisdictions and agreeable to the usages and principles
of law.”

28 U.S.C. § 1651(a).

A petition for a writ of certiorari

is filed in the United States Supreme Court by a party who seeks review
by the United States Supreme Court of a decision of a federal
appellate court or state court; such writ cannot be filed in the
district court.

See Sup. Ct. R. 13.

Accordingly, because this Court

does not have the authority to issue a writ of certiorari, the petition
is denied.
Alternatively, if petitioner seeks to challenge his Kings
County conviction again in federal court by means of a 28 U.S.C. § 2254
petition for a writ of habeas corpus, he must apply to the United
States Court of Appeals for the Second Circuit for permission to do
so as the Antiterrorism and Effective Death Penalty Act of 1996
“allocates jurisdiction to the courts of appeals, not the district
courts, to authorize successive habeas motions or applications.”
Torres v. Senkowski, 316 F.3d 147, 151 (2d Cir. 2003); see also 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.”).

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Finally, to the extent petitioner seeks to appeal the
denial of his March 5, 2011 post-conviction motion by the state court,
he must continue to pursue his remedies in state court.
CONCLUSION
For the reasons set forth above, the “application for writ
of certiorari” is dismissed as the court has no jurisdiction to issue
such a writ. Alternatively, if petitioner seeks to challenge the 1990
Conviction in federal court by means of a 28 U.S.C. § 2254 petition
for a writ of habeas corpus, he must apply to the United States Court
of Appeals for the Second Circuit for permission to file a successive
petition.
The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that
any appeal from this Order would not be taken in good faith and
therefore in forma pauperis status is denied for the purpose of an
appeal.

See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
The Clerk is respectfully requested to serve a copy of this

Memorandum and Order on pro se petitioner and note service on the
docket, enter judgment in favor of respondents, dismiss this action
and close this case.
SO ORDERED.
Dated:

January 26, 2012
Brooklyn, New York
_________/s/________
KIYO A. MATSUMOTO
United States District Judge
Eastern District of New York
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