Aponte v. Horn

Filing 6

ORDER. For the reasons set forth in the annexed opinion and those set forth in the court's February 28, 2011 memorandum and order in No. 09-cv-4334, petitioner's instant habeas petitions are dismissed. Furthermore, the court notifies petiti oner that if he files any further repetitious filings challenging the same 3/8/06 conviction, the court may direct petitioner to show cause why an order barring him from filing any future in forma pauperis petitions without first obtaining leave of c ourt should not be entered. Since petitioner has not made a substantial showing of the denial of a constitutional right, a certificate of appealability shall not issue. See 28 U.S.C. 2253(c)(2); see also Lucidore v. New York State Div. of Parole, 209 F.3d 107, 112-13 (2d Cir. 2000). The court certifies pursuant to 28 U.S.C. 1915(a) that any appeal from a judgment denying the instant petition would not be taken in good faith. See Coppedge v. United States, 369 U.S. 438 (1962). The Clerk of Court is directed to enter judgment in and close these three cases. The Clerk of Court is further directed to send a copy of this memorandum and order to petitioner. Ordered by Judge Kiyo A. Matsumoto on 3/4/2016. (Jacobson, Jonathan)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------X
HERBERT APONTE,

Petitioner,

NOT FOR PUBLICATION
MEMORANDUM & ORDER

-against15-CV-2201 (KAM)
MICHAEL HORN, ASST. DISTRICT
ATTORNEY OF QUEENS COUNTY, 1
Respondent.
---------------------------------X
HERBERT APONTE,
Petitioner,
-against-

16-CV-535 (KAM)

MICHAEL HORN, ASST. DISTRICT
ATTORNEY OF QUEENS COUNTY,
Respondent.
---------------------------------X
HERBERT APONTE,
Petitioner,
-against-

16-CV-1075(KAM)

MICHAEL HORN, ASST. DISTRICT
ATTORNEY OF QUEENS COUNTY,
Respondent.
---------------------------------X
MATSUMOTO, United States District Judge:
Petitioner, proceeding pro se, filed the three abovereferenced petitions under 28 U.S.C. ' 2254 challenging the same

1 This action was transferred to this court from the United States
District Court for the Southern District of New York by order dated April
15, 2015.

judgement of conviction dated March 8, 2006 in Queens County. The
court grants petitioner=s request to proceed in forma pauperis
solely for the purpose of this order. For the reasons set forth
below,

the

court

dismisses

all

of

the

petitions

and

warns

petitioner against filing future repetitious petitions.
DISCUSSION
On March 8, 2006, petitioner was convicted in Queens
County Criminal Court of Attempted Stalking in the Third Degree,
N.Y. Penal Law §§ 110.00 & 120.50(3), and Harassment in the First
Degree, N.Y. Penal Law § 240.25 (the “3/8/06 conviction”).
Petitioner

has

previously

brought

before

this

court

three pro se applications for a writ of habeas corpus, pursuant to
28

U.S.C.

§

2254

(“§ 2254”),

challenging

this

same

3/8/06

conviction. On February 28, 2011, the court dismissed the habeas
petition that petitioner filed in 2009 for lack of subject matter
jurisdiction, finding that because petitioner’s sentence – a oneyear term of probation – terminated on June 22, 2007, he was not
“in custody” pursuant to the conviction under attack as required
for the court to retain jurisdiction under § 2254(a). See Aponte
v. Brown, No. 09-CV-4334, 2011 WL 797406, at *2 (E.D.N.Y Feb. 28,
2011)

(citing

Maleng

v.

Cook,

490

U.S.

488,

490-91

(1989)).

Petitioner sought a certificate of appealabilty from the United
States Court of Appeals for the Second Circuit (“Second Circuit”)
2

in order to appeal that determination. The Second Circuit denied
his motion on August 18, 2011. See Aponte v. Brown, No. 09-CV4334, ECF Nos. 14, 17.
On September 5, 2013, petitioner filed his second pro se
application for a writ of habeas corpus, pursuant to § 2254,
challenging this same 3/8/06 conviction on the same grounds. By
order

dated

October

21,

2013,

the

court

again

dismissed

the

petition. See Aponte v. Modica (Judge) of Queens County Criminal
Courthouse, N.Y., No. 13-CV-5149, ECF Nos. 7-8. On December 4,
2013, petitioner filed a letter titled “Petition For Writ Of Habeas
Corpus; Reopen Case; and Vacatur of Dismissal and Motion for Leave
to Procure Counsel.” The court construed the submission as a motion
to reopen the case pursuant to Fed. R. Civ. P. 60(b) and denied
the motion on December 11, 2013. See id., ECF No. 11.
On February 20, 2014, petitioner filed his third pro se
application for a writ of habeas corpus, challenging this same
3/8/06 conviction, again on the same grounds. By order dated
September 26, 2014, the court dismissed the petition. See Aponte
v. The People of the State of New York et al., No. 14-CV-2550, ECF
Nos. 8, 9.
The federal habeas statute grants the court jurisdiction
to review petitions for habeas relief only from persons who are
“in custody in violation of the Constitution or laws or treaties
3

of

the

United

States.”

§

2254(a).

Although

the

“in

custody”

language does not require physical confinement, a petitioner is
not “in custody” if the sentence for the underlying conviction has
fully expired. Maleng, 490 U.S. at 491.
Each of the § 2254 habeas petitions in the instant case
attack the same 3/8/06 conviction that petitioner challenged in
the three aforementioned actions. Because petitioner’s probation
for that offense terminated as of June 22, 2007, petitioner has
not made the threshold showing that he was “‘in custody’ under the
conviction or sentence under attack at the time [the] petition[s]
[were] filed.” Id. at 490-91. Accordingly, this court is without
jurisdiction to hear Mr. Aponte’s petitions and they are dismissed.
Warning Against Future Frivolous Filings
Petitioner has essentially filed the same petition in
this court six times. Every one of these petitions has been
dismissed for lack of jurisdiction because he is not in custody
under the conviction or sentence under attack at the time the
petitions were filed.
The

federal

courts

have

limited

resources.

Frequent

frivolous filings work to diminish the ability of the courts to
manage their dockets for the efficient administration of justice.
The Second Circuit has held that a district court not only has the
authority,

but

also

an

obligation,
4

to

deny

the

benefit

of

proceeding in forma pauperis to a litigant who has demonstrated a
history of filing frivolous and vexatious claims. See In re Martin–
Trigona, 737 F.2d 1254, 1261 (2d Cir. 1984) (“Federal courts have
both the inherent power and the constitutional obligation to
protect

their

jurisdiction

from

conduct

which

impairs

their

ability to carry out Article III functions.”); see also In re
Sindram,

498

U.S.

177,

179–80

(1991)

(“In

order

to

prevent

frivolous petitions for extraordinary relief from unsettling the
fair administration of justice, the Court has a duty to deny in
forma pauperis status to those individuals who have abused the
system.”)
The

Second

Circuit

has

upheld

the

district

court’s

authority to issue a filing injunction when a petitioner “abuse[s]
the

process

of

the

Courts

to

harass

and

annoy

others

with

meritless, frivolous, vexatious or repetitive . . . proceedings.”
Lau v. Meddaugh, 229 F.3d 121, 123 (2d Cir. 2000) (per curiam)
(internal quotation marks and citation omitted). However, it is
the “unequivocal rule in this Circuit

. . . that the district

court may not impose a filing injunction on a litigant sua sponte
without providing the litigant with notice and an opportunity to
be heard.”

Iwachiw v. New York State Dep’t of Motor Vehicles, 396

F.3d 525, 529 (2d Cir. 2005) (internal quotation marks and citation
omitted).
5

The court has considered petitioner’s litigation history
and his persistence in filing the same petitions making the same
allegations concerning the same conviction and suffering from the
same jurisdictional deficit. Petitioner has taxed the resources of
the federal courts as “[e]very paper [he has] filed with the Clerk
of this Court, no matter how repetitious or frivolous, require[d]
some

portion

of

the

institution’s

limited

resources.”

In

re

McDonald, 489 U.S. 180, 184 (1989). This order shall serve as a
warning that the court hopes will deter petitioner from further
repetitious, facially unmeritorious submissions. Should petitioner
persist in filing redundant § 2254 petitions challenging the same
3/8/06 conviction in this court, the court may direct petitioner
to show cause why an order barring the acceptance of any future in
forma pauperis submissions for filing in this court without first
obtaining leave of the Court should not be entered.
CONCLUSION
For the reasons set forth above and those set forth in
the court’s February 28, 2011 memorandum and order in No. 09-cv4334,

petitioner’s

instant

habeas

petitions

are

dismissed.

Furthermore, the court notifies petitioner that if he files any
further

repetitious

filings

challenging

the

same

3/8/06

conviction, the court may direct petitioner to show cause why an
order

barring

him

from

filing
6

any

future

in

forma

pauperis

petitions without first obtaining leave of court should not be
entered. Since petitioner has not made a substantial showing of
the

denial

of

a

constitutional

right,

a

certificate

of

appealability shall not issue. See 28 U.S.C. ' 2253(c)(2); see
also Lucidore v. New York State Div. of Parole, 209 F.3d 107, 11213 (2d Cir. 2000). The court certifies pursuant to 28 U.S.C.
' 1915(a) that any appeal from a judgment denying the instant
petition would not be taken in good faith. See Coppedge v. United
States, 369 U.S. 438 (1962). The Clerk of Court is directed to
enter judgment in and close these three cases. The Clerk of Court
is further directed to send a copy of this memorandum and order to
petitioner.
SO ORDERED.

Dated:

March 4, 2016
Brooklyn, New York
_________/s/_________________
KIYO A. MATSUMOTO
United States District Judge
Eastern District of New York

7