Patel v. Cunningham

Filing 4

MEMORANDUM & ORDER TRANSFERRING CASE AS SUCCESSIVE PETITION. On 6/22/2015, petitioner Vinod Patel, proceeding pro se, filed this 1 Petition for a Writ of Habeas Corpus, pursuant to 28 U.S.C. § 2254. Petitioner has previously sought a writ of habeas corpus in this Court under 28 U.S.C. § 2254 challenging the same Queens County conviction. This Court dismissed Patel's earlier petition as time barred. His new petition is therefore a second or successive petitio n and requires Second Circuit authorization before this Court may consider it. The Clerk of the Court shall transfer this petition to the United States Court of Appeals for the Second Circuit pursuant to 28 U.S.C. § 1631. Upon transfer of thi s petition, the Clerk of the Court is respectfully requested to close this case. If the Second Circuit authorizes petitioner to proceed in this matter, petitioner shall move to reopen under this docket number. The Clerk of the Court is also respec tfully requested to serve a copy of this Memorandum and Order on petitioner and to make a notation of the service in the docket. SO ORDERED by Chief Judge Carol Bagley Amon, on 8/5/2015. C/mailed to pro se Petitioner. (Forwarded to Appeals Section.) (Latka-Mucha, Wieslawa)

ftLED

IN Cl.~S OFFICE
U.I. CUWl"'1' ~ 1.0.N.Y.

* AUG.O 5 2015

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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*

BROOKLYN OF~i

VINOD PATEL,
NOT FOR PUBLICATION
MEMORANDUM & ORDER
15-CV-3687 (CBA)

Petitioner,
-againstROBERT CUNNINGHAM,
Respondent.

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AMON, Chief United States District Judge.

On June 22, 2015, petitioner Vinod Patel, proceeding prose, filed this petition for a writ
of habeas corpus, pursuant to 28 U.S.C. § 2254. Patel is currently incarcerated at Woodboume
Correctional Facility following conviction in Nassau County. However, he challenges a separate
conviction in Queens County, the sentence for which he says he has already served. (Petition
("Pet.") at 19.) 1 Petitioner has previously sought a writ of habeas corpus in this Court under 28
U.S.C. § 2254 challenging the same Queens County conviction. (See also Pet. at 18
(acknowledging previously filed case, Patel v. Martuscello, No. 1O-cv-4804).)
The Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA") grants to the
federal courts of appeals a gatekeeping function with respect to the filing of second or successive
habeas corpus petitions. "Before a second or successive application permitted by this section is
filed in the district court, the applicant shall move in the appropriate court of appeals for an order
authorizing the district court to consider the application." 28 U.S.C. § 2244(3)(A). "[A] district
court must transfer uncertified successive motions to [the Court of Appeals] pursuant to 28
U.S.C. § 1631, the provision authorizing transfer to cure want of jurisdiction." Torres v.
Senkowski, 316 F.3d 147, 151-52 (2d Cir. 2003). A§ 2254 petition is "classified as 'second or
1

Patel has a separate habeas petition pending before this Court. See Patel v. Martuscello, No. 10-cv-5695. That
petition challenges his Nassau County conviction, for which he is serving an indeterminate sentence of 12 to 15
years. Seehttp://nysdoccslookup.doccs.ny.gov/GCAOOPOO/WIQ3/WINQI30 (last visited July 16, 2015).

1

successive' if a prior petition, challenging the same conviction, has been decided 'on the
merits."' Graham v. Costello, 299 F.3d 129, 132 (2d Cir. 2002). Absent unusual circumstances
not present here, "a petition dismissed as time-barred is considered a decision on the merits."
Quezada v. Smith, 624 F.3d 514, 518-20 (2d Cir. 2010).
This Court dismissed Patel's earlier petition as time barred. Patel v. Martuscello, No. 10cv-4804, 2011 WL 703943, at *5 (E.D.N.Y. Feb. 16, 2011). His new petition is therefore a
second or successive petition and requires Second Circuit authorization before this Court may
consider it. The Clerk of the Court shall transfer this petition to the United States Court of
Appeals for the Second Circuit pursuant to 28 U.S.C. § 1631. Upon transfer of this petition, the
Clerk of the Court is respectfully requested to close this case. If the Second Circuit authorizes
petitioner to proceed in this matter, petitioner shall move to reopen under this docket number.
The Clerk of the Court is also respectfully requested to serve a copy of this Memorandum and
Order on petitioner and to make a notation of the service in the docket.
SO ORDERED.

Dated: Brooklyn, New York
2015
August

5

,

/S/ Chief Judge Carol Bagley Amon
..--Carol Bagl~f Airtod )
Chief United St~ District Judge

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