Aponte v. Horn

Filing 9

PERMANENT INJUNCTION. For the reasons stated in the annexed filing injunction, petitioner is hereby barred from filing any further habeas petitions in this court challenging his 3/08/06 conviction without first obtaining permission from this court to file his petition. The Clerk of Court is respectfully requested to serve a copy of this order on the petitioner at his address: 455 East 138th Street, Bronx, NY 10454. Ordered by Judge Kiyo A. Matsumoto on 7/12/2016. (Jacobson, Jonathan)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------X
HERBERT APONTE,
Petitioner
NOT FOR PUBLICATION
FILING INJUNCTION ORDER
16-CV-2510 (KAM)(LB)

-against-

MICHAEL HORN, ASST. DISTRICT
ATTORNEY OF QUEENS COUNTY,
Respondent.
---------------------------------X
MATSUMOTO, United States District Judge:
On May 11, 2016, petitioner Herbert Aponte, 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.

By

Memorandum and Order dated May 24, 2016, the court dismissed the
petition because petitioner was not “in custody” within the meaning
of 28 U.S.C. § 2254. The court also directed petitioner to show
cause why he should not be barred from filing any new habeas
petitions challenging the 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”).

Including the instant petition, petitioner has now filed a total
of seven pro se petitions in seven separate actions in this court
seeking a writ of habeas corpus, pursuant to 28 U.S.C. § 2254
(“§ 2254”),

challenging

the

same

3/8/06

conviction.

The

six

applications preceding the instant one were:
•

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; and
•

Aponte

v.

Michael

Horn,

Asst.

District

Attorney

of

Queens County, No. 16-CV-1075, ECF Nos. 4-5.
In each of the seven actions, the court dismissed the
petition because petitioner was not “in custody” pursuant to the
3/8/06 conviction. See 28 U.S.C. § 2254(a) (“[A] district court
shall entertain an application for a writ of habeas corpus in
2

behalf of a person in custody pursuant to the judgment of a State
court only on the ground that he is in custody in violation of the
Constitution or laws or treaties of the United States.” (emphasis
added)); see also 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 3/8/06 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 a petition challenging the 3/8/06 conviction.
FILING INJUNCTION
“The district courts have the power and the obligation
to protect the public and the efficient administration of justice
from

individuals

who

have

a

history

of

litigation

entailing

vexation, harassment and needless expense to [other parties] and
an

unnecessary

burden

on

the

courts

and

their

supporting

personnel.” Lau v. Meddaugh, 229 F.3d 121, 123 (2d Cir. 2000)
(internal

quotation

marks

and

citations

omitted).

A

filing

injunction is permissible when a litigant “abuse[s] the process of
the Courts to harass and annoy others with meritless, frivolous,
vexatious or repetitive appeals and other proceedings.” In re
Hartford Textile Corp., 659 F.2d 299, 305 (2d Cir. 1981); see also
3

Pandozy v. Tobey, 335 F. App’x 89, 92 (2d Cir. 2009). As long as
a litigant is provided with notice and an opportunity to be heard,
a filing injunction may be imposed. See Lau, 229 F.3d at 123.
Petitioner’s persistent and vexatious habeas challenges
of the 3/8/06 conviction led the court to warn him that a filing
injunction may be entered if he continued to challenge the same
3/8/06 conviction via a § 2254 petition. See Aponte v. Horn, 15CV-2201, ECF No. 6 (“[T]he 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.”); 16-CV-535,
ECF No. 6 (same); 16-CV-1075, ECF No. 4 (same). Finally, on May
24, 2016, the court directed petitioner to show cause why he should
not be barred from any further habeas corpus challenges to the
3/8/06 conviction. (See ECF No. 4 (“[P]etitioner 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.”).)
On June 16, 2016, petitioner filed a response to the
court’s order to show cause 1 which consists of his own “order to

1

Although the dockets of the various petitions reflect that
petitioner occasionally did not receive orders issued by the court,
4

show

cause”

challenging

the

same

3/6/06

conviction

and

resubmitting the habeas corpus petition filed in this case, which
the court has already dismissed for lack of jurisdiction. (See ECF
No. 8, Unsigned Order to Show Cause.) Petitioner provides no basis
for the court to reconsider its decision dismissing the petition
for lack of jurisdiction. Further, he provides no reason why he
should

not

be

barred

from

filing

further

habeas

petitions

challenging his 3/8/06 conviction.
Accordingly, petitioner is hereby barred from filing any
further habeas petitions in this court challenging his 3/08/06
conviction without first obtaining permission from this court to
file his petition. See Persaud v. United States, No. 04-CV-2862,
2010

WL

enjoining

1437927,
habeas

at

*5

(E.D.N.Y.

petitioner

“from

Apr.

8,

filing

2010)
any

(permanently

future

motion,

petition, or other document in this Court related to his 2002
conviction, without prior authorization of the Court, except for
a notice of appeal”).

his response to the May 24, 2016 order to show cause establishes
that he did have notice that the court intended to issue a filing
injunction.
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CONCLUSION
The Clerk of Court is directed to return to petitioner,
without filing, any new petition challenging the 3/8/06 conviction
if it is received without a separate application seeking permission
for leave to file. If petitioner seeks leave to file and the court
finds

that

the

new

petition

is

not

subject

to

this

filing

injunction, the court shall grant petitioner leave to file the new
petition and the civil action shall be filed and assigned a civil
docket number. If leave to file is denied, petitioner’s submission
shall be filed on the court’s miscellaneous docket and a summary
order denying leave to file shall be entered. The petition will be
dismissed and the case closed. No further action will be taken.
Nothing in this order shall be construed to prohibit petitioner
from filing an appeal of this order.

6

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 an
appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
The Clerk of Court is respectfully requested to serve a copy of
this order on the petitioner at his last known address and note
service on the docket.

SO ORDERED.

Dated:

July 17, 2016
Brooklyn, New York
_________/s/_________________
KIYO A. MATSUMOTO
United States District Judge
Eastern District of New York

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