Bailey v. Sheahan

Filing 4

ORDER TRANSFERRING CASE AS SUCCESSIVE PETITION. The 3 Order to Show Cause was issued before the Court realized Bailey had previously filed a petition pursuant to 28 U.S.C. § 2254 challenging his 2003 conviction. The Order to Show Cause is hereby vacated. The attached order transfers this successive petition to the United States Court of Appeals for the Second Circuit. Ordered by Judge John Gleeson on 3/4/2013. (Kim, Scarlet)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

KEVIN BAILEY,
Petitioner,
- versus -

TRANSFER ORDER
13-CV-1031

M. SHEAHAN, Superintendent,
Defendant.

GLEESON, United States District Judge:
On February 19, 2013 Kevin Bailey, proceeding pro se, filed this petition
pursuant to 28 U.S.C. § 2254 challenging his 2003 conviction in New York Supreme Court,
Kings County. Bailey is currently incarcerated at Five Points Correctional Facility. Bailey paid
the filing fee to commence this action. For the reasons set forth below, the Court cannot
consider the instant submission and transfers it to the United States Court of Appeals for the
Second Circuit pursuant to 28 U.S.C. § 1631.
Bailey previously challenged this same conviction by filing a petition pursuant to
28 U.S.C. § 2254 on May 5, 2006. I denied that petition on November 3, 2006. Bailey v. Ercole,
06-CV-2129 (JG), 2006 WL 3150826 (E.D.N.Y. Nov. 3, 2006). On April 18, 2007, the Court of
Appeals for the Second Circuit denied Bailey’s motion for a certificate of appealability and
dismissed petitioner’s appeal. Bailey v. Ercole, 06-CV-2129 (JG), ECF No. 21. I subsequently
denied Bailey’s Fed.R.Civ.P. 60(b) motion on December 21, 2007. Bailey v. Ercole, 06-CV2129 (JG), 2007 WL 4565034 (E.D.N.Y. Dec. 21, 2007). On June 20, 2008, the Court of
Appeals for the Second Circuit denied Bailey’s motion for a certificate of appealability and
dismissed petitioner’s appeal. Bailey v. Ercole, 06-CV-2129 (JG), ECF No. 36. In addition, by
letter dated May 29, 2009, I informed Bailey that there was no proceeding before me by which

he could challenge this same conviction and that any further challenge would be a “successive
petition” for which he would need permission from the Court of Appeals for the Second Circuit.
Id., ECF No. 49. Nevertheless, Bailey has filed the instant petition in this Court.
Therefore, the instant petition is hereby transferred to the Court of Appeals for the
Second Circuit. 28 U.S.C. § 1631; see Whab v. United States, 408 F.3d 116, 118 (2d Cir. 2005)
(“[A] ‘second or successive’ petition for relief under § 2255 may not be filed in a district court,
unless the petitioner first obtains the authorization of the court of appeals, certifying that the
petition conforms to specified statutory requirements.”); Poindexter v. Nash, 333 F.3d 372, 382
(2d Cir. 2003) (“Where the court determines that an application raises only claims which are
properly brought under § 2255, that the applicant has filed a prior § 2255 motion which was dealt
with on the merits, and that no authorization from the court of appeals has been obtained as
mandated by § 2244(b)(3), the district court must transfer the motion to this court.”) (internal
citations and quotation marks omitted).
Accordingly, the Clerk of the Court is directed to transfer this application to the
Clerk of the Court of Appeals for the Second Circuit and to mark this matter closed. If the
Second Circuit authorizes Bailey to proceed in this matter, Bailey shall move to reopen this case
under this docket number.

SO ORDERED.

John Gleeson
United States District Judge
Dated: Brooklyn, New York
March 4, 2013