Board v. United States of America

Filing 7

MEMORANDUM AND ORDER: 1) It is hereby ordered that the Office of the United States Attorney, as attorney for respondent, shall file and serve a response to Board's pending 13-cv-5335 petition (including his October 28, 2013 letter request to sup plement that petition), as well as to his 11-cr-3726 petition, on or before April 18, 2014. 2) The petitioner shall serve upon respondent and file with the Clerk of Court his reply, if any, on or before May 16, 2014.. Ordered by Judge Denis R. Hurley on 3/11/2014. (Lundy, Lisa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-----------------------------X
DARRYL BOARD,
Petitioner,

MEMORANDUM AND ORDER
91-CR-1219, 96-CV-3840,
11-CV-3726, 13-CV-5335 (DRH)

-againstUNITED STATES OF AMERICA,
Respondent.
-----------------------------X
A P P E A R A N C E S:
For Petitioner:
Darryl Board, Pro Se
# 38544-053
F.C.I. Berlin
P.O. Box 9000
Berlin, NH 03570

For the Government:
Loretta E. Lynch
United States Attorney Eastern
District of New York 100
Federal Plaza Central Islip,
New York 11722
By Carrie
Capwell, A.U.S.A.
HURLEY, Senior District Judge
Pending before the Court are a series of applications
by Darryl Board ("petitioner" or "Board"), proceeding pro se,
made pursuant to 28 U.S.C. §§ 2241 and 2255.
Background
After a jury trial which lasted from April 27, 1993 to
July 21, 1993, Board was convicted of conspiracy to commit armed

robberies in violation of 18 U.S.C. § 371, one count of armed
robbery in violation of 18 U.S.C. § 2114, two counts of armed
robbery in violation of 18 U.S.C. § 2113, three counts of using
and carrying a firearm during a crime of violence in violation of
18 U.S.C. § 924(c), and one count of possession of proceeds from
an armed robbery in violation of 18 U.S.C. § 2113. Board was
acquitted of another bank robbery and of a related weapons
charge. In addition, Board's counsel obtained the pre-trial
dismissal of two counts of the indictment due to improper venue.
On April 29, 1994 Board was sentenced, which sentence
included a term of imprisonment of 56 years and 8 months.

His

conviction and sentence were affirmed by the Second Circuit Court
of Appeals on April 30, 1996.

United States v. Board, 101 F.3d

683 (2d Cir. 1996).
Petitioner's Letter to the Court Filed on February 18, 2014
In petitioner's letter filed on February 18, 2014, he
withdraws his application under 96-CV-3840 (DRH) to reopen his
"initial Habeas petition," as well as his application filed under
91-CR-1219 (DRH), explaining that "[he] was reading [his]
Sentencing Transcript wearing [his] new reading glasses and . . .
saw that the Court did [,contrary to his initial impression,]
give [him] consecutive [, rather than concurrent] sentences on
counts 21 and 29."

(Pet.'s Feb. 14, 2014 Letter at 1.)

Accordingly, he realized that his earlier claim under those two
dockets that his "sentence was changed after [he was sentenced]"
was incorrect.
Petitioner maintains, however, that the judgment
reciting his sentence is still flawed in that "someone illegally
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added . . . five years supervised release to his sentence from
the Bureau of Prisons."

Id. at 2.

Indeed, that purported error

is the subject of his outstanding petition under 13-CV-5335.

As

a result, Board asks "to have the five year supervise[d] release
removed from his sentence and or the five year supervise[d]
release covered by subtracting five years from the jail time to
be served or credit him [with] five years jail time."1

Id.

In addition to the relief sought under 13-CV-5335,
petitioner seeks, in docket 11-CR-3726, a "WRIT OF AUDITA
QUERELA" pursuant to "28 U.S.C. § 1651(a)."
1, 2011, p. 1.)

(Pet. Filed on Aug.

I note, parenthetically, that the body of the

11-CR-3726 petition seems to mirror a portion of his complaint
under the now withdrawn 91-CR-1219.

However, at this juncture, I

will deem this a new request while awaiting a response from the
respondent United States of America.
With respect to petitioner's assertion in 13-CV-5335
that someone other than the Court endeavored to saddle him with
five years of supervised release as part of his sentence on April
29, 1994, petitioner moved on October 28, 2013 "request[ing] the
Court's leave to [supplement that claim] to show he is actual[ly]

1

With respect to Board's claim that the Court did not
impose a period of supervised release to follow the periods of
incarceration, that claim is inconsistent with that portion of
the sentencing transcript in which I stated that "there will be a
period of five years of supervised release that is imposed to
follow the periods of incarnation." (Apr. 28, 1994 Tr. at p. 56,
lines 10-12.) That part of the sentence as pronounced in Court
dovetails with the corresponding provision in the written
judgment.
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innocent."

See Letter Application Filed Oct. 28, 2013.

Title 28

U.S.C. § 2255(h) requires that a "second or successive motion"
seeking the same relief as previously requested must be certified
by "a panel of the appropriate Court of Appeals" before the
matter may be further pursued.

28 U.S.C. § 2255(h).

Moreover, §

2255 has a "1-year period of limitation [applicable] to a motion
under [that section]."

28 U.S.C. § 2255.

In any event, it is

hereby ORDERED:
1.

That the Office of the United States Attorney, as

attorney for respondent, shall file and serve a response to
Board's pending 13-CV-5335 petition (including his October
28, 2013 Letter request to supplement that petition), as
well as to his 11-CR-3726 petition, on or before April 18,
2014.
2.

The petitioner shall serve upon respondent and file

with the Clerk of Court his reply, if any, on or before May
16, 2014. SO ORDERED.
Dated: March 11, 2014
Central Islip, New York

_________________________
DENIS R. HURLEY, U.S.D.J.

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