McFadden v. Cuomo

Filing 5

MEMORANDUM & ORDER granting 2 Motion for Leave to Proceed in forma pauperis; Pursuant to Rule 4 of the Rules Governing Section 2254 Cases, the Court has conducted an initial review of this Petition and has determined that this Petition should not be summarily dismissed pursuant to Rule 4. Accordingly, it is ORDERED that the Clerk of the Court shall serve, by electronic transmission, a copy of this Order, the underlying Petition, and Supporting Affidavit, on the Attorney General of the State of New York, the attorney for the Respondent. ORDERED that Respondent shall file a limited answer to the Petition within thirty (30) days of the date of this Order addressing the issue of whether Petitioner must first seek permission from the Court o f Appeals in order to file this Petition in the District Court; If Respondent concedes that the Petition is properly filed in this Court, Respondent shall file a complete and entire answer to the Petition within sixty (60) days of the date of this O rder. In such case, Respondent shall prepare the state court record to be produced and filed with the Court. No reply is required, however, should Petitioner want to reply, he shall serve a reply on Respondent's counsel and with the Court within thirty (30) days of his receipt of the answer. So Ordered by Judge Joanna Seybert on 2/12/2015. 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, New York,

Respondent.
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APPEARANCES
For Petitioner:
Reginald G. McFadden, pro se
95A6279
Attica Correctional Facility
639 Exchange Street
P.O. Box 149
Attica, NY 14011
For Respondent:

No appearance.

SEYBERT, District Judge:
On

January

5,

2015,

petitioner

Reginald

G.

McFadden

(“Petitioner”), appearing pro se, filed a Petition seeking a writ of
habeas corpus pursuant to 28 U.S.C. § 2254, accompanied by an
application to proceed in forma pauperis.

The application to

proceed in forma pauperis is GRANTED.
Pursuant to Rule 4 of the Rules Governing Section 2254
Cases, the Court has conducted an initial review of this Petition
and has determined that this Petition should not be summarily
dismissed pursuant to Rule 4.

Accordingly, it is ORDERED that the

Clerk of the Court shall serve, by electronic transmission, a copy
of this Order, the underlying Petition, and Supporting Affidavit, on
the Attorney General of the State of New York, the attorney for the
Respondent.

It is further ORDERED that Respondent shall file a

limited answer to the Petition within thirty (30) days of the date
of this Order addressing the issue of whether Petitioner must first
seek permission from the Court of Appeals in order to file this
Petition in the District Court, see 28 U.S.C. § 2244(b)(2); see also
Torres

v.

Senkowski,

316

F.3d

147,

151

(2d

Cir.

2003)

(the

Antiterrorism and Effective Death Penalty Act of 1996 “allocates
jurisdiction to the courts of appeals, not the district courts, to
authorize

successive

habeas

motions

or

applications”)

unless

Respondent concedes that this Petition is not a second or successive
Petition.

If Respondent concedes that the Petition is properly

filed in this Court, Respondent shall file a complete and entire
answer to the Petition within sixty (60) days of the date of this
Order.

In such case, Respondent shall prepare the state court

record to be produced and filed with the Court.

No reply is

required, however, should Petitioner want to reply, he shall serve
a reply on Respondent’s counsel and with the Court within thirty
(30) days of his receipt of the answer.

SO ORDERED.

/s/ JOANNA SEYBERT
Joanna Seybert, U.S.D.J.
Dated:

February
12 , 2015
Central Islip, New York