McFadden v. Cuomo

Filing 15

MEMORANDUM & ORDER TRANSFERRING CASE AS SUCCESSIVE PETITION; This Court transfers this case to the US Court of Appeals for the Second Circuit. For the foregoing reasons, McFadden's habeas corpus petition is DENIED. The Clerk of the Court is r espectfully directed to 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 directed to CLOSE this case. If the Second Circui t authorizes Petitioner to proceed in this matter, Petitioner shall move to reopen this docket number. The Clerk of the Court is directed to serve a copy of this Memorandum and Order on Petitioner and to note such service on the docket. So Ordered by Judge Joanna Seybert on 12/15/2015. C/M; C/ECF (Valle, Christine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-----------------------------------X
REGINALD G. McFADDEN,
Petitioner,

MEMORANDUM & ORDER
15-CV-0119 (JS)

-againstANDREW CUOMO, Governor of
New York,

Respondent.
-----------------------------------X
APPEARANCES
For Petitioner:
Reginald G. McFadden, pro se
95-A-6279
Attica Correctional Facility
639 Exchange Street
PO Box 149
Attica, NY 14011
For Respondent:

Judith R. Sternberg, Esq.
Nassau County District Attorney’s Office
262 Old Country Road
Mineola, NY 11501
Paul B. Lyons, Esq.
Office of the N.Y.S. Attorney General
120 Broadway
New York, NY 10271

SEYBERT, District Judge:
Before the Court is petitioner Reginald G. McFadden’s
(“McFadden” or “Petitioner”) application seeking a writ of habeas
corpus pursuant to 28 U.S.C. § 2254. For the following reasons,
the Petition is DENIED.
BACKGROUND
On

December

7,

1969,

Petitioner,

and

three

robbed and murdered Sonia Rosenbaum in Pennsylvania.

friends

(Resp’t’s

Ans., Docket Entry 11, ¶ 6.)

Following a jury trial, McFadden was

convicted of the murder, as well as lesser crimes, and sentenced
to life imprisonment.

(Resp’t’s Ans. ¶ 6.)

After serving twenty-

five years of his life sentence, Petitioner was pardoned by the
governor of Pennsylvania and, on July 7, 1994, released to New
York under the interstate parole system.
On

September

Margaret Kierer.

28,

1994,

(Resp’t’s Ans. ¶ 7.)

McFadden

(Resp’t’s Ans. ¶ 8.)

raped

and

murdered

McFadden was indicted in

Nassau County for six counts of Murder in the Second Degree;
Robbery in the First Degree; Rape in the First Degree; Aggravated
Sexual Abuse in the First Degree; and Sexual Abuse in the First
Degree.

(Resp’t’s Ans. ¶ 9.)

At the time of his indictment,

McFadden was involved in unrelated proceedings in Rockland County,
New York, where he had been indicted on multiple charges of rape,
sexual abuse, robbery, burglary, and lesser crimes.

(Resp’t’s

Ans. ¶ 10.)
Upon

the

conclusion

of

Petitioner’s

jury

trial

and

conviction in Rockland County, he was transported to Nassau County,
where, on September 27, 1995, he pleaded guilty to Murder in the
Second Degree for the murder of Margaret Kierer and in satisfaction
of

all

charges

contained

(Resp’t’s Ans. ¶ 11.)
right to appeal.

in

the

Nassau

County

indictment.

As part of his plea, McFadden waived his

(Resp’t’s Ans. ¶ 11.)

On October 25, 1995,

Petitioner was sentenced to a term of imprisonment of twenty-five

2

years to life.

(Resp’t’s Ans. ¶ 12.)

The sentence was ordered to

run consecutively to the sentences already imposed in both Rockland
County and Pennsylvania.

(Resp’t’s Ans. ¶ 12.)

Petitioner did

not file a direct appeal from the Nassau County judgment of
conviction.

(Resp’t’s Ans. ¶ 12.)

Petitioner was indicted for another murder in Rockland
County, and was tried, convicted, and sentenced to a term of
imprisonment of twenty-five years to life.

(Resp’t’s Ans. ¶ 13.)

The conviction was affirmed by the Appellate Department, second
Judicial

Department

(“Appellate

Division”).

See

People

v.

McFadden, 261 A.D.2d 419, 692 N.Y.S.2d 395 (2d Dep’t 1999).

On

September 25, 2013, Petitioner claimed that he was denied effective
assistance of appellate counsel in that matter.
¶ 13.)

The Appellate Division denied his claim.

(Resp’t’s Ans.
See People v.

McFadden, 109 A.D.3d 1008, 971 N.Y.S.2d 703 (2d Dep’t 2013).
In 1996, Petitioner sought to set aside his Nassau County
guilty plea for the murder of Margaret Kierer, and filed a motion
pursuant to Criminal Procedure Law (“C.P.L.”) § 440.
Ans. ¶ 14.)

McFadden claimed that his plea was coerced and that

he endured ineffective assistance of counsel.
¶ 14.)

(Resp’t’s

(Resp’t’s Ans.

The petition was denied on January 16, 1997, and leave to

appeal to the Appellate Division was denied on March 26, 1997.
(Resp’t’s Ans. ¶ 14.)

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In 1996, McFadden sought a writ of habeas corpus in the
United States District Court, Eastern District of New York (“First
Petition”).

(Resp’t’s Ans. ¶ 15.)

Petitioner argued that he had

been denied the right to file a post-judgment motion and thus, his
Nassau County conviction was invalid.

(Resp’t’s Ans. ¶ 15.)

McFadden then filed a supplemental petition claiming that: (1) his
arrest was illegal; (2) he had been denied effective assistance of
counsel; (3) his plea was involuntary; and (4) he had been denied
the right to file a post-judgment motion.

(Resp’t’s Ans. ¶ 15.)

The Court found Petitioner’s arguments both procedurally barred
and meritless and denied McFadden’s application for a writ of
habeas on February 2, 1999.

See McFadden v. Kuhlman, No. 96-CV-

5976 (E.D.N.Y. Feb. 2, 1999).
While his petition for a writ of habeas corpus was
pending, McFadden filed another post-judgment motion in County
Court, Nassau County.
that:

(1)

the

(Resp’t’s Ans. ¶ 16.)

trial

court

failed

to

Petitioner asserted

adhere

to

statutory

requirements for sentencing a prior felony offender; (2) he was
not advised of his right to appeal; (3) the court should have
advised him of the existence of an affirmative defense; (4) the
court failed to comply with the requirements of C.P.L. § 220.10(5);
and (5) the court should have ordered that he be examined pursuant
to C.P.L. Article 730.

(Resp’t’s Ans. ¶ 16.)

4

The motion was

denied on December 16, 1998, and leave to appeal to the Appellate
Division was denied on February 23, 1999.

(Resp’t’s Ans. ¶ 16.)

McFadden filed a third C.P.L. § 440 motion in April 1999,
seeking vacatur of the judgment of conviction in this matter
claiming

that

the

prosecution

knowingly

presented

perjured

testimony in the grand jury and the defense counsel defrauded the
court.

(Resp’t’s Ans. ¶ 17.)

On July 28, 1999, the motion was

denied, and leave to appeal to the Appellate Division was denied
on September 29, 1999.

(Resp’t’s Ans. ¶ 17.)

A few years later, Petitioner filed another C.P.L. § 440
motion seeking vacatur of the judgment.

(Resp’t’s Ans. ¶ 18.)

This time McFadden claimed that his plea was involuntary because,
at the time of the plea, he was: (1) suffering the effects of a
prescription drug that “‘impaired [his] ability to defen[d]’”
himself; (2) not informed of the consequences of his plea; and (3)
not informed of his right to appeal.

(Resp’t’s Ans. ¶ 18.)

The

petition was denied on December 5, 2005, and leave to appeal to
the Appellate Division was denied on April 5, 2006.

(Resp’t’s

Ans. ¶ 18.)
In 2013, McFadden filed a fifth C.P.L. § 440 motion
seeking vacatur of his Nassau County conviction.
¶ 19.)

(Resp’t’s Ans.

He asserted that: (1) the grand jury proceedings were

flawed; (2) he was denied effective assistance of counsel; (3) his
plea allocution was inadequate; and (4) his plea was coerced.

5

(Resp’t’s Ans. ¶ 19.)

McFadden also requested DNA testing of all

forensic evidence in the possession of both the Nassau County and
Rockland

County

authorities.

(Resp’t’s

Ans.

¶

19.)

On

December 23, 2013, Petitioner’s motion was denied, and on May 7,
2014, his leave to appeal to the Appellate Division was denied.
(Resp’t’s Ans. ¶ 20.)
On January 5, 2015, McFadden has once again petitioned
this Court seeking a writ of habeas corpus.
1.)

(Pet., Docket Entry

Petitioner claims that: (1) he was illegally arrested; (2)

his guilty plea to the murder of Margaret Kierer was involuntary;
(3) he was secretly indicted on the basis of false evidence; (4)
trial counsel was ineffective; (5) his plea was not authorized by
New York law; (6) exculpatory evidence was not presented to the
grand jury; (7) his prosecution was politically motivated by New
York Governor George Pataki; (8) he was prevented from filing a
motion to withdraw his guilty plea prior to sentencing; (9) he was
wrongly denied permission to appeal from the denial of his first
C.P.L. § 440 motion; and (10) his sentence is illegal under New
York law.

(Resp’t’s Ans. ¶ 21.)
On January 5, 2015, Petitioner also sought leave to

proceed

in

forma

pauperis.

McFadden’s

application was granted on February 12, 2015.

in

forma

pauperis

(Docket Entry 5.)

On February 13, 2015, Petitioner moved for discovery in
connection with his habeas petition.

6

(Docket Entry 7.)

On

September 30, 2015, this Court denied Petitioner’s motion for
discovery.

(Docket Entry 14.)
DISCUSSION
The Antiterrorism and Effective Death Penalty Act of

1996

(“AEDPA”)

“creates

a

gatekeeping

mechanism

for

the

consideration or second or successive applications in district
court.”

Felker v. Turpin, 518 U.S. 651, 657, 116 S. Ct. 2333,

2337, 135 L. Ed. 2d 827 (1996) (internal quotation marks omitted).
Before

a

district

court

may

consider

a

successive

habeas

application, the “prospective applicant must file in the court of
appeals a motion for leave to file a second or successive habeas
application
224(b)(3)(A).

in

the

district

court.”

Id.;

see

28

U.S.C.

The “AEDPA allocates jurisdiction to the courts of

appeals, not the district courts, to authorize successive habeas
motions or applications.”

Torres v. Senkowski, 316 F.3d 147, 151

(2d Cir. 2003).
The instant petition constitutes a successive petition
because it “rais[es] claims regarding the same conviction or
sentence” at issue in the First Petition, which was decided by
this Court on the merits.

Corrao v. United States, 152 F.3d 188,

191 (2d Cir. 1998) (“Generally, a [habeas] petition is ‘second or
successive’ if a prior [habeas] petition, raising claims regarding
the same conviction or sentence, has been decided on the merits.
This remains true even if the latter petition purports to raise

7

new

claims.”)

authorization

(citations
from

the

omitted).1

Second

Therefore,

Circuit,

this

jurisdiction to consider the instant petition.

without

Court

has

no

See, e.g., Walker

v. Cuomo, No. 12-CV-4512, 2012 WL 5386218, at *2 (E.D.N.Y. Nov. 1,
2012)

(“Because

plaintiff

has

already

filed

several

habeas

petitions, he must seek permission from the Unites States Court of
Appeals

to

file

a

successive

habeas

petition.”);

Moore

v.

Superintendent of Southport Corr. Facility, No. 12-CV-4302, 2012
WL 5289599, at *2 (E.D.N.Y. Oct. 19, 2012) (“Should petitioner
wish to challenge further his . . . conviction in federal court,
he must again move before the United States Court of Appeals for
the

Second

petition

Circuit

for

habeas

for

permission

corpus

to

relief.”)

pursue

this

(emphasis

in

successive
original)

(citation omitted); James v. Connolly, No. 12-CV-1543, 2012 WL
1129359, at *1 (E.D.N.Y. Mar. 30, 2012) (“[P]etitioner must move
in the Unites States Court of Appeals for the Second Circuit for
permission to pursue this successive petition for habeas corpus
relief.”) (citation omitted).
Petitioner has previously challenged his 1995 Nassau
County guilty plea pursuant to 28 U.S.C. § 2254 in the United

Corrao involved a motion brought by a federal prisoner under 28
U.S.C. § 2255. However, for the purposes of the AEDPA’s
authorization requirement for second and successive
applications, “there is no material difference between § 2254
and § 2255.” Torres, 316 F.3d at 151.
1

8

States District Court for the Eastern District of New York, which
was denied.

See McFadden v. Kuhlman, No. 96-CV-5976 (E.D.N.Y.

Feb. 2, 1999).

Should Petitioner wish to further challenge his

Nassau County conviction in federal court, he must move before the
United

States

Court

of

Appeals

for

the

Second

Circuit

for

permission to pursue this successive petition for habeas corpus
relief.

28 U.S.C. § 2244(b)(3)(A); see Torres, 316 F.3d at 151

(“[A] district court must transfer uncertified successive motions
to

[the

Court

of

Appeals]

pursuant

to

28

U.S.C.

§

1631.”).

Accordingly, McFadden’s habeas corpus application is DENIED, and
the instant petition is transferred to the Second Circuit.
CONCLUSION
For the foregoing reasons, McFadden’s habeas corpus
petition is DENIED. The Clerk of the Court is respectfully directed
to 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 directed to CLOSE this
case.

If the Second Circuit authorizes Petitioner to proceed in

this matter, Petitioner shall move to reopen this docket number.

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The Clerk of the Court is directed to serve a copy of this
Memorandum and Order on Petitioner and to note such service on
the docket.
SO ORDERED.
/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
Dated:

December
15 , 2015
Central Islip, New York

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