Aponte v. Horn

Filing 4

ORDER. For the reasons discussed in the annexed memorandum and order, the petition is dismissed. In addition, petitioner is ORDERED TO SHOW CAUSE, within twenty (20) days from the date of this order, why he should not be barred from filing any habeas petition challenging the 3/8/06 conviction without first obtaining the court's permission to do so. All future proceedings shall be stayed for twenty days. The court certifies pursuant to 28 U.S.C. 1915(a)(3) that any appeal from this order wou ld not be taken in good faith and therefore in forma pauperis status is denied for purpose of an appeal. The Clerk of Court is respectfully directed to serve a copy of this order on the pro se plaintiff at the address listed on the case caption and also at the following address: 455 E. 138th Street, Apt. 1J, Bronx, NY 10454. Ordered by Judge Kiyo A. Matsumoto on 5/24/2016. (Jacobson, Jonathan)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------X
HERBERT APONTE,
NOT FOR PUBLICATION
MEMORANDUM & ORDER
AND ORDER TO SHOW CAUSE

Petitioner,
-against-

16-CV-2510 (KAM)(LB)
MICHAEL HORN, ASST. DISTRICT
ATTORNEY OF QUEENS COUNTY,

Respondent.
---------------------------------X
MATSUMOTO, United States District Judge:
On

May

11,

2016,

petitioner,

a

Queens

resident

1

1

Petitioner has provided the same address for all of his actions filed
since 2006 including this one: 34-20 24 Street, Queens (or Long Island
City), NY 11106. Periodically, documents mailed to petitioner have been
returned to the court as undeliverable, marked with the postal notation
“Return to Sender-Attempted-Not Known-Unable to Forward” (see, e.g.,
Aponte v. Horn, No. 16-CV-1075, ECF Nos. 6 & 8), or “Return to Sender,
Vacant, Unable to Forward.” (Id., ECF No. 7.) Given the apparent
consistency of petitioner’s address, the return of the documents is
concerning. Petitioner is reminded that it is his responsibility to keep
the court informed of his current address. If he has a more reliable
address, he should provide it to the court.

If plaintiff fails to provide a current address or contact information,
the court may dismiss his action. All plaintiffs are obligated to notify
the court when their address changes. See Concepcion v. Ross, No. 92–
CV–770, 1997 WL 777943, at *1 (E.D.N.Y. Oct. 28, 1997). This obligation
applies to pro se litigants as well as represented parties. See id.; see
also Handlin v. Garvey, No. 91-CV-6777, 1996 WL 673823, at *5 (S.D.N.Y.
Nov. 20, 1996) (explaining that the duty to inform the court and
defendants of one’s current address is “an obligation that rests with
all pro se plaintiffs”). When a pro se litigant fails to provide the
court with notice of a change of address, the court may dismiss the
litigant’s claims when the court is unable to contact the pro se party
about the litigation. See, e.g., Dong v. United States, No. 02-CV-7751,
2004 WL 385117, at *3 (S.D.N.Y. Mar. 2, 2004) (dismissing a pro se
litigant’s action because the litigant failed to inform the court of his
current address, causing the court to lose contact with him); Canario-

proceeding pro se, filed this habeas petition under 28 U.S.C.
§ 2254, seeking to challenge - for the seventh time - the judgment
of conviction entered against him on March 8, 2006 in Queens
County. For the reasons set forth below, the petition is dismissed2
and petitioner is ORDERED TO SHOW CAUSE why he should not be barred
from filing any new habeas petitions challenging HIS March 8, 2006
conviction without first obtaining the court’s permission to do
so.
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 six pro se
applications for a writ of habeas corpus, pursuant to 28 U.S.C.
§ 2254 (“§ 2254”), challenging this same 3/8/06 conviction. See

Duran v. Borecky, No. 10-CV-1736, 2011 WL 176745, at *1-2 (E.D.N.Y. Jan.
19, 2011) (dismissing a pro se litigant’s action because plaintiff took
no action after filing complaint and failed to provide the court with a
current address).
2

The court notes that petitioner did not sign his submission, nor did
he comply with the court’s filing fee requirement by paying the $5 fee
or submitting a request to proceed in forma pauperis. Generally, the
court would not consider the case until these filing deficiencies were
remedied. However, given petitioner’s litigation history and the
interest in limiting the use of the court’s resources spent on
petitioner’s frivolous submissions, the court dismisses the instant
action with these deficiencies extant.

2

Aponte v. Brown, No. 09-CV-4334, 2011 WL 797406, at *2 (E.D.N.Y
Feb. 28, 2011); Aponte v. Modica (Judge) of Queens County Criminal
Courthouse, N.Y., No. 13-CV-5149, ECF Nos. 7-8; Aponte v. The
People of the State of New York et al., No. 14-CV-2550, ECF Nos.
8-9; Aponte v. Michael Horn, Asst. District Attorney of Queens
County, No. 15-CV-2201, ECF Nos. 6-7; Aponte v. Michael Horn, Asst.
District Attorney of Queens County, No. 16-CV-535, ECF Nos. 6-7;
Aponte v. Michael Horn, Asst. District Attorney of Queens County,
No. 16-CV-1075, ECF Nos. 4-5.
The instant § 2254 habeas petition attacks the same
3/8/06

conviction

that

petitioner

challenged

in

the

six

aforementioned actions. In each of the six prior actions, the court
dismissed the petition because petitioner was not “in custody”
within the meaning of § 2254. See Maleng v. Cook, 490 U.S. 488,
490-91 (1989). As noted in the dismissals of petitioner’s prior
habeas petitions, his one-year term of probation for the underlying
criminal conviction terminated on June 22, 2007. See, e.g., Aponte
v. Brown, 2011 WL 797406, at *2. Because petitioner is not “in
custody” on the basis of the challenged criminal conviction, the
court is without jurisdiction to hear this petition and it is
dismissed.
FILING INJUNCTION
The

court

assumes

familiarity
3

with

petitioner’s

litigation history, which was set forth in the court’s March 1,
2016 dismissal order. Petitioner’s six prior petitions have been
dismissed by this Court. The last dismissal included a warning
that a filing injunction may be entered if petitioner continued to
file “repetitious, facially unmeritorious submissions.” Aponte v.
Horn, Nos. 15-CV-2201, 16-CV-535, 16-CV-1075, at 6.
In Lau v. Meddaugh, 229 F.3d 121, 123 (2d Cir. 2000)
(per curiam), the Second Circuit upheld the district court’s
authority to issue a filing injunction when “a plaintiff abuse[s]
the

process

of

the

Courts

to

harass

and

annoy

others

with

meritless, frivolous, vexatious or repetitive . . . proceedings.”
See also Pandozy v. Tobey, 335 F. App’x 89, 92 (2d Cir. 2009);
Williams v. New York City Hous. Auth., No. 06-CV-5473, 2008 WL
5111105, at *5 (E.D.N.Y. Dec. 4, 2008). It is, however, the “[t]he
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) (quoting Moates v. Barkley, 147 F.3d 207, 208
(2d Cir. 1998)).
In light of petitioner’s litigation history and his
apparent unwillingness to heed the warning of this court, he is
ORDERED TO SHOW CAUSE in writing by affirmation, within twenty
4

days of the date of this order, why he should not be barred from
filing any further habeas petitions in this Court challenging the
3/8/06 conviction without first obtaining permission from this
Court to file his petition. Should petitioner fail to submit his
affirmation

within

the

time

directed,

or

should

petitioner’s

affirmation fail to set forth good cause why this injunction should
not be entered, he shall be barred from filing any further habeas
petitions in this Court challenging the 3/8/06 conviction without
first obtaining permission to do so. 3
CONCLUSION
Accordingly, the petition is dismissed. In addition,
petitioner is ORDERED TO SHOW CAUSE, within twenty (20) days from
the date of this order, why he should not be barred from filing
any habeas petition challenging the 3/8/06 conviction without
first

obtaining

the

court’s

permission

to

do

so.

All

future

proceedings shall be stayed for twenty days. The court certifies
pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this order

3

The court also takes judicial notice of petitioner’s similar filings
in the United States District Court for the Middle District of
Pennsylvania challenging a different conviction in Pennsylvania state
court. See Aponte v. Zucick, No. 15-CV-01154, 2015 WL 6599758, at *2
(M.D. Pa. Oct. 29, 2015); Aponte v. Commonwealth of Pa., No. 10-CV-1993,
2010 WL 4386468, at *2 (M.D. Pa. Oct. 29, 2010) (“Since Petitioner has
indicated that a one-year sentence was imposed in 2007, and that he has
already served his sentence and been released, Petitioner is no longer
in custody and therefore cannot be granted relief via a habeas corpus
petition.”); Aponte v. Pennsylvania, No. 09-CV-1713, 2010 WL 2044629,
at *3 (M.D. Pa. May 20, 2010).

5

would not be taken in good faith and therefore in forma pauperis
status is denied for purpose of an appeal. See Coppedge v. United
States, 369 U.S. 438, 444-45 (1962).
SO ORDERED.

Dated:

May 24, 2016
Brooklyn, New York
_________/s/_________________
KIYO A. MATSUMOTO
United States District Judge
Eastern District of New York

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