Walker v. Attorney General State of New York

Filing 21

ORDER denying 17 Motion for Leave to File; denying 18 Motion to Stay; denying 20 Motion for Summary Judgment -- For the reasons set forth in the ATTACHED WRITTEN SUMMARY ORDER, the following is hereby ORDERED: (1) The Court will consider pro se petitioner's supplemental response to the Order to Show Cause he filed on March 5, 2015. Accordingly, his motion for leave to refile is denied and the amended supplemental response attached to petitioner's motion is stricken; ( 2) Respondent is directed to respond to Petitioner's supplemental response to the Order to Show Cause on or before NOVEMBER 23, 2015. No further response from Petitioner is required; (3) Petitioner's request for a stay of his judgment of c onviction is denied; and (4) Petitioner's motion for summary judgment is denied as premature and stricken. Respondent is reminded to remit to chambers a hard courtesy copy of its response to petitioner's supplemental filing promptly upon fi ling with the Court and serving it on petitioner. 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 purpose of a ny appeal. Coppedge v. United States, 369 U.S. 438, 444-45 (1962). The Clerk of the Court is directed to mail a copy of this Electronic Order and the Attached Written Summary Order to pro se petitioner. SO ORDERED by Judge Dora Lizette Irizarry on 11/4/2015. (Irizarry, Dora)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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SELWYN WALKER, pro se,
:
:
Petitioner,
:
:
-against:
:
ATTORNEY GENERAL OF THE STATE,
:
OF NEW YORK,
:
Respondent.
:
:
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DORA L. IRIZARRY, United States District Judge:

SUMMARY ORDER
14-CV-00141 (DLI)

Petitioner Selwyn Walker (“Petitioner”), proceeding pro se1 and currently incarcerated at
the Buffalo Federal Detention Facility in Batavia, New York, seeks a writ of habeas corpus
pursuant to 28 U.S.C. § 2254. On February 18, 2014, this Court ordered Petitioner to show
cause why this action should not dismissed as time barred under the Antiterrorism and Effective
Death Penalty Act (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214. On March 4, 2014,
Petitioner, through counsel, responded to the Order to Show Cause. (See Dkt. Entry No. 4.) The
Attorney General for the State of New York (“Respondent”) thereafter submitted a response
supporting the dismissal of this action as time barred. (See Dkt. Entry No. 8.) On March 5,
2015, without leave from this Court, Petitioner filed a “supplemental” response to the Order to
Show Cause, presenting additional arguments and purporting to assert a claim of actual
innocence. (See Dkt. Entry No. 13.) By separate motions received July 24, 2015, Petitioner
seeks: (1) permission to refile his supplemental response to the Order to Show Cause with an
amended return date, which Petitioner believes will compel a response from Respondent; and (2)

1

Petitioner initially was represented by retained counsel in this matter, but during the course of proceedings began
making submissions on his own directly to the Court. By letter dated September 16, 2015, Petitioner informed the
Court that he no longer is represented by counsel, and that he intends to proceed pro se until he can retain another
attorney. (See Dkt. Entry No. 19.)

a "stay" of his March 2006 conviction while his § 2254 petition is under review by this Court.
(See Dkt. Entry Nos. 17 and 18.) Finally, on October 22, 2015, Petitioner filed a motion, styled
as a motion for summary judgment, requesting that this Court either grant the petition, or, in the
alternative, stay his conviction pending a hearing in this matter. (See Dkt. Entry No. 20.)
First, in deciding whether the petition is timely, the Court will consider the arguments in
the supplemental response to the Order to Show Cause that Petitioner filed on March 5, 2015.
As such, refiling that submission is unnecessary. Therefore, Petitioner's motion for leave to
refile is denied, and the amended version of the supplemental response Petitioner attached to that
motion is hereby stricken.

Respondent is directed to respond to Petitioner’s supplemental

response to the Order to Show Cause on or before NOVEMBER 23, 2015. No further response
from Petitioner is required. At that point, the Order to Show Cause will be fully briefed, and a
decision will issue in due course.
Second, the facts and claims alleged in the § 2254 petition do not demonstrate the
exceptional circumstances in which a federal court is permitted to stay or suspend a state
criminal judgment. See, e.g., Rado v. Meachum, 699 F. Supp. 25, 26-27 (D. Conn. 1988)
(enumerating the factors to be considered by the court.) This case is not so “distinguishable from
other habeas corpus cases” as to warrant the extraordinary relief Petitioner seeks. Id. at 27.
Thus, in accordance with principles of state-federal comity, Petitioner's motion for a stay of his
conviction is denied.
Third, and finally, Petitioner’s motion for summary judgment is premature and
procedurally improper in light of the pending decision on the Order to Show Cause. The motion
also was not filed in compliance with this Court’s Individual Rules and Practices. Accordingly,
Petitioner’s motion for summary judgment is stricken.

2

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 purpose of
any appeal. Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
SO ORDERED.
Dated: Brooklyn, New York
November 4, 2015
______________/s/______________
DORA L. IRIZARRY
United States District Judge

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