Gabriel v. Capra

Filing 3

ORDER TRANSFERRING CASE: The Clerk of Court is respectfully directed to mail a copy of the attached Order to Petitioner at his address of record, to note the mailing on the docket, and to transfer this action to the Northern District of New York. The Clerk of Court is further directed that he may transfer this action to the Northern District of New York without waiting seven days, as provided by Local Civil Rule 83.1, and that all pending motions shall be terminated and the case shall be closed in this court. Petitioner's request to proceed in forma pauperis is reserved for the transferee court. Ordered by Judge Kiyo A. Matsumoto on 4/28/2021. (Mayer, Michael)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------X
DUANE GABRIEL,
Petitioner,
TRANSFER ORDER
-against-

21-CV-2207(KAM)

MICHAEL CAPRA, Superintendent of Sing
Sing Correctional Facility,
Respondent.
--------------------------------------X
KIYO A. MATSUMOTO, United States District Judge:
On April 19, 2021, pro se petitioner Duane Gabriel
(“Petitioner”), who is currently incarcerated at Sing Sing
Correctional Facility in Ossining, New York, filed a petition
for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, and a
request to proceed in forma pauperis.

(See ECF Nos. 1, 2.)

Petitioner is incarcerated following his conviction in 1996 for
second-degree murder, fourth-degree grand larceny, and petit
larceny in New York state court in Rensselaer County.

See

generally People v. Gabriel, 661 N.Y.S.2d 306 (N.Y. App. Div. 3d
Dept. 1997).
“[A]pplications for a writ of habeas corpus made by
persons under the judgment and sentence of a court of the State
of New York shall be filed, heard and determined in the District
Court for the district within which they were convicted and

sentenced[.]”

Local Civil Rule 83.3.

Petitioner was convicted

and sentenced in Rensselaer County, which is located in the
Northern District of New York.

See 28 U.S.C. § 112(a) (“[t]he

Northern District comprises the counties of,” inter alia,
“Rensselaer”).

For the convenience of Petitioner and in the

interest of justice, the instant petition shall be transferred
to the United States District Court for the Northern District of
New York.

See 28 U.S.C. § 1404(a) (“for the convenience of

parties” and “in the interest of justice, a district court may
transfer any civil action to any other district or division
where it might have been brought”); Local Civil Rule 83.3 (“The
Clerk[] of the . . . Eastern District Court[] [is] authorized
and directed to transfer such applications to the District
herein designated for filing, hearing and determination.”).
The Clerk of Court is respectfully directed to mail a
copy of this Order to Petitioner at his address of record, to
note the mailing on the docket, and to transfer this action to
the Northern District of New York.

The Clerk of Court is

further directed that he may transfer this action to the
Northern District of New York without waiting seven days, as
provided by Local Civil Rule 83.1, and that all pending motions

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shall be terminated and the case shall be closed in this court.
Petitioner’s request to proceed in forma pauperis is reserved
for the transferee court.
SO ORDERED.
Dated:

Brooklyn, New York
April 28, 2021

___________/s/_______________
Hon. Kiyo A. Matsumoto
United States District Judge

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