Daum v. LaValley

Filing 9

ORDER: To the extent that the 1 petition requests relief pursuant to 28 U.S.C. 2254, it is a "successive petition," and is hereby transferred to the Court of Appeals for the Second Circuit. The 8 Order to Show Cause is hereby vacated. The Clerk of the Court is directed to transfer Daums application and a copy of the attached order to the Clerk of the Court of Appeals for the Second Circuit and to mark this matter closed. Ordered by Judge John Gleeson on 8/22/2013. (Kim, Scarlet)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

TERRY DAUM,
Petitioner,
- versus -

ORDER
13-cv-3730

THOMAS LAVALLEY, Superintendent,
Clinton Correctional Facility
Respondent.

JOHN GLEESON, United States District Judge:
On June 24, 2013 Terry Daum, proceeding pro se, filed this petition pursuant to
28 U.S.C. § 2254 challenging his 1997 conviction in New York Supreme Court, Richmond
County. ECF No. 1. Daum previously challenged this same conviction by filing a petition
pursuant to 28 U.S.C. § 2254 on October 1, 2001. Daum v. Ricks, No. 01-cv-6520, ECF No. 2.
Magistrate Judge Lois Bloom denied that petition on April 4, 2005. 1 Daum v. Duncan, No. 01cv-6520, ECF No. 67. On August 10, 2006, the Court of Appeals for the Second Circuit denied
Daum’s motion for a certificate of appealability and dismissed Daum’s appeal. Daum v. Ricks,
No. 01-cv-6520, ECF No. 83.
Daum’s present petition also seeks relief pursuant to Federal Rules of Civil
Procedure (“Fed. R. Civ. P.”) 60(b) and 60(d) to vacate Magistrate Judge Bloom’s denial of his
prior petition for habeas relief. Magistrate Judge Bloom denied Daum’s Fed. R. Civ. P. 60(b)
and 60(d) motion on August 19, 2013. Daum v. LaValley, No. 01-cv-6520, ECF No. 103. That

1

636(c)(1).

The parties consented to all proceedings before a Magistrate Judge pursuant to 28 U.S.C. §

portion of this petition that seeks relief pursuant to Fed. R. Civ. P. 60(b) and 60(d) is therefore
dismissed.
To the extent that the petition requests relief pursuant to 28 U.S.C. § 2254, it is a
“successive petition,” and is hereby transferred to the Court of Appeals for the Second Circuit.
28 U.S.C. § 1631; see Liriano v. United States, 95 F.3d 119 (2d Cir. 1996). Accordingly, the Clerk
of the Court is directed to transfer Daum’s application and a copy of this order to the Clerk of the
Court of Appeals for the Second Circuit and to mark this matter closed. If the Second Circuit
authorizes Daum to proceed in this matter, Daum shall move to reopen this case under this docket
number.

So ordered.
John Gleeson, U.S.D.J.

Dated: August 22, 2013
Brooklyn, New York

2