Holmes v. Cunningham

Filing 10

MEMORANDUM & ORDER: In a 8 submission dated 3/11/2013, Holmes moved the Court to reconsider its dismissal of his petition for lack of jurisdiction pursuant to Rule 60(b) of the Federal Rules of Civil Procedure. Based on the information that Holm es has provided in his recent submissions (DE # 8 , # 9 ), the Court vacates its 3/16/2013 Order 6 dismissing Holmes's petition for a writ of habeas corpus for lack of jurisdiction and directs the Clerk of Court to vacate [7 ] judgment. The Court further orders that the Attorney General of the state of New York, or the District Attorney of Queens County, as attorney for the respondent, shall show cause before this Court by the filing of a return to this petition, w hy a writ of habeas corpus should not be issued. Within 60 days of this Order, respondent shall serve a copy of the return, consisting of necessary affidavits and briefs, on Holmes and file the original with proof of service with Clerk of Court. Respondent shall submit the transcript and record of the trial and any hearings to this Court at the time of filing such return. Holmes, within 30 days of receipt by him of a copy of respondent's return shall file his reply, if any, with the Clerk of Court. SO ORDERED by Chief Judge Carol Bagley Amon, on 4/4/2013. C/mailed to pro se Petitioner. Electronic Service upon Respondents, re: 1 Petition for Writ of Habeas Corpus. (Latka-Mucha, Wieslawa)

FLLUD

IN CLERK'S OFFICe.

U.S. DISTRICT COURT E.o.N.V.

* APR 0 4 2013 *

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

BROOKLYN OFFICE

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DAVID HOLMES,

NOT FOR PUBLICATION
MEMORANDUM & ORDER
13-CV -00550 (CBA)

Petitioner,
- againstRA YMOND CUNNINGHAM, Superintendent,
Woodbourne Correctional Facility,
Respondent.

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AMON, Chief United States District Judge.
On January 22,2013, petitioner David Holmes, proceeding pro se, petitioned this Court
for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 seeking to challenge his 1977 Queens
County conviction for robbery in the second degree. By Order dated March 6, 2013, the Court
dismissed Holmes's petition for lack of jurisdiction due to Holmes's failure to satisfy the "in
custody" requirement. (DE #6.) The Court also informed him that to the e)(tent that he seeks to
indirectly challenge his 1977 conviction through a claim that his current sentence was
improperly enhanced by that allegedly invalid prior conviction, he should file a new petition in
the Southern District of New York e)(plicitly stating so. In a submission dated March 11,2013,
Holmes moved the Court to reconsider its dismissal of his petition for lack of jurisdiction
pursuant to Rule 60(b) of the Federal Rules of Civil Procedure. (DE #8, #9.) Based on the
information that Holmes has provided in his recent submissions, the Court vacates its March 6,
2013 Order dismissing the petition for failing to satisfy the "in custody" requirement and directs
respondent to respond according to the schedule set forth below.
Although not clear from his original petition, Holmes makes plain in his most recent
submissions that he is currently incarcerated pursuant to a series of consecutive sentences that

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reach back to his 1977 conviction. (DE #8.) As Holmes indicates, because he was still on parole
when convicted for each of the two subsequent crimes he committed in 1983 and again in 2002,
his prior sentences had not yet expired when each of his new sentences-which were set to run
consecutively with his prior sentences-was imposed. (Holmes Aff.

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4-7.) Accordingly,

Holmes is currently serving the "aggregate" of his 1997, 1983 and 2002 sentences and "remains
'in custody' under 'all of his sentences until all are served.'" Smalls v. Batista, 22 F. Supp. 2d
230,234 (S.D.N.Y. 1998) (quoting Garlotte v. Fordice, 515 U.S. 39,41 (1995)). Holmes thus
satisfies the "in custody" requirement to challenge his 1977 conviction.
The Court notes that there remains a question of timeliness in light of the fact that
Holmes seeks to challenge a conviction that is approximately thirty-six years old. However,
insofar as Holmes is unable to demonstrate that his claims are not time-barred, because he has
asserted a claim of actual innocence, that claim may "provide a basis for excusing" any such
untimely claims. Friedman v. Rehal, 618 F.3d 142, 152 (2d Cir. 2010).
CONCLUSION

Accordingly, the Court vacates its March 6, 2013 Order dismissing Holmes's petition for
a writ of habeas corpus for lack of jurisdiction and directs the Clerk of Court to vacate judgment.
The Court further orders that:
1. The Attorney General of the state of New York, or the District Attorney of Queens
County, as attorney for the respondent, show cause before this Court by the filing of a
return to this petition, why a writ of habeas corpus should not be issued;
2. Within sixty (60) days of this Order, respondent shall serve a copy of the return,
consisting of necessary affidavits and briefs, on Holmes and file the original with
proof of service with Clerk of Court;
3. Respondent shall submit the transcript and record of the trial and any hearings to this
Court at the time of filing such return. Respondent is required to electronically file
the State Court Record, with no individual attachment to the entry exceeding 5
megabytes. Respondent is also directed to supply a hard copy to Chambers which
must be clearly marked "Courtesy Copy, original filed in ECF, Dkt. No. CV 1300550."
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4. Respondent shall submit, at the time of filing of such return, copies of Holmes's and
the District Attorney's briefs: (a) on appeal, (b) in connection with proceedings
pursuant to section 440 of New York's Criminal Procedure Law, and (c) in
connection with coram nobis proceedings, if any such proceedings took place, as well
as all relevant state court transcripts, decisions and opinions.
5. Holmes, within thirty (30) days of receipt by him ofa copy of respondent's return
shall file his reply, if any, with the Clerk of Court.
6. All communications with the Court must be served on the opposing party;
7. Service of a copy of this Order shall be made by the Clerk of Court by certified mail,
together with a copy of the petition to the Attorney General of the State of New York,
120 Broadway, New York, New York 10271 and the District Attorney of Queens
County, 125-01 Queens Blvd., Kew Gardens, NY 11415, and by mailing a copy of
this Order to Holmes.
SO ORDERED.
Dated: Brooklyn, New York
April
,2013

q.

/S/ Chief Judge Carol B. Amon

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Chief United States District Judge

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