Smith v. Donnelly

Filing 16

ORDER TRANSFERRING Habeas Petition to U.S. Court of Appeals for the Second Circuit. Signed by Judge Lawrence E. Kahn on 8/4/05. (alh)

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Smith v. Donnelly Doc. 16 Case 9:01-cv-00326-LEK-DEP Document 16 Filed 08/04/2005 Page 1 of 6 U N IT E D STATES DISTRICT COURT N O R T H E R N DISTRICT OF NEW YORK ________________________________ J O H N E. SMITH, Petitioner, Civ. No. 9:01-CV-0326 (LEK/DEP) J O H N BEAVER, Re spo nde nt. ________________________________ A P P E AR A N C E S : J O H N E. SMITH Pe titioner, pro se 85-C-0329 W end e Correctional Facility 3 6 2 2 Wende Road P . O . Box 1187 A l d e n , NY 14004-1187 L AW R E N C E E. KAHN U N IT E D STATES DISTRICT JUDGE ORDER Pe titioner, pro se John E. Smith commenced this action on March 7, 200 1. On April 26, 2001, this Court issued an order which, inter alia, directed Sm ith to file an amended petition if he wished to proceed with this action. Dkt. No . 3. Petitioner subsequently filed that pleading with the Court (Dkt. No. 6), w h i ch was then referred to Magistrate Judge David E. Peebles for review.1 O n October 17, 2001, Magistrate Judge Peebles issued an order in which O F COUNSEL: Smith attached a memorandum of law in support of his amended habeas petition to that pleading. See attachment to Dkt. No. 6 ("Supporting Mem."). 1 Dockets.Justia.com Case 9:01-cv-00326-LEK-DEP Document 16 Filed 08/04/2005 Page 2 of 6 he concluded that this was the second habeas corpus petition filed by Smith relatin g to his conviction in Onondaga County Court on March 25, 1985. See Dkt. No. 7 at p. 2 ("October, 2001 Order"). Magistrate Judge Peebles therefore trans ferred this action to the Second Circuit pursuant to 28 U.S.C. 22 44 (b)( 3)(A ) so that such court could determ ine whether petitioner could pro pe rly maintain a second or successive habeas application challenging his Ma rch, 1985 conviction in this District. See October, 2001 Order at pp. 2-3 (citing 28 U.S.C. 2244(b)(3)(A); Liriano v. United States, 95 F.3d 119, 123 (2d Cir. 1996)). O n May 7, 2002, the Second Circuit issued a Mandate in this action in w h i c h it directed this Court to: o b t a in archived records and conduct additional i n ve s t ig a t io n as to whether petitioner's present 2254 p e t it io n is in fact a second petition within the meaning of the Antiterrorism and Effective Death Penalty Act, P u b . L . No. 104-132, 110 Stat. 1214 (1996) (the "AE DP A"). See Thomas v. Su perin tend ent/W ood bou rne Correctional Facility, 136 F .3 d 227 (2d Cir. 1997). "In doing so, the district court s h o u l d determine whether the prior petition was d i s m i ss e d with prejudice and whether the instant p e t it io n attacks the same judgment that was attacked i n the prior petition." Id. at 229. S e e Mandate (5/7/02) (Dkt. No. 10) ("Mandate"). I n accordance with the Second Circuit's Mandate, this Court has obtained a n d reviewed the official file created in conjunction with Smith v. Walker, 90-CV- 2 Case 9:01-cv-00326-LEK-DEP Document 16 Filed 08/04/2005 Page 3 of 6 067 9 (CGC)(DNH) ("90-CV-0679").2 That review has satisfied this Court that th e amended petition filed by Smith in the present action attacks the same j u d g m e n t that was challenged in 90-CV-0679. Specifically, both petitions refer to a judgment of conviction rendered against Smith in Onondaga County Court in the spring of 1985. Compare Dkt. No. 6 at 2 with Dkt. No. 12 at 2.3 Additionally, although Smith claimed in his prior petition that he was challenging c o n v ic t io n s for the crimes of second degree murder and criminal possession of a weapon, see Dkt. No. 12 at 4, then-Magistrate Judge David N. Hurd noted in h i s Report-Recommendation relating to that petition that Smith was in fact convicte d of second degree murder and first degree perjury.4 See ReportR e c o m m e n d a t io n of then-Magistrate Hurd (6/20/91) (Dkt. No. 14) ("June, 1991 In light of the fact that this Court has referred to several of the documents filed in 90-CV-0679 in the present Order, this Court directed the Clerk to docket in the present action certain documents that had been previously filed in 90CV-0679. Smith claims in his amended petition that he was convicted on March 25, 1985. See Dkt. No. 6 at 2. Although he claimed in his prior petition that he was convicted on April 23, 1985, see Dkt. No. 12 at 2, in opposing that application, the Attorney General for the State of New York noted that the jury returned a guilty verdict relating to Smith on March 25, 1985, the same date referenced by Smith in the present action. See Dkt. No. 13 at p. 4. The "Inmate Information Database" provided on the Internet by the New York State Department of Correctional Services ("DOCS") indicates that Smith is currently in the custody of DOCS for the crimes of second degree murder and first degree perjury. Available at: http://nysdocslookup.docs.state.ny.us/GCA00P00/WIQ3/W INQ130. 3 4 3 2 Case 9:01-cv-00326-LEK-DEP Document 16 Filed 08/04/2005 Page 4 of 6 R e p o r t -R e c o m m e n d a t io n " ) at p.2 & n.2.5 In the present action, petitioner s i m i l a rl y challenges convictions for the crimes of second degree murder and first d e g r e e perjury. Dkt. No. 6 at 4. Moreover, the aggregate sentence imposed on Smith for the crimes challenged in 90-CV-0679 (twenty-eight and one-half to t h ir t y- t w o years imprisonment) is identical to the sentence petitioner challenges in the present action. Compare Dkt. No. 6 at 3 with Dkt. No. 14 at p. 2. F u r t h e rm o r e , the indictment number challenged by Smith in 90-CV-0679 wa s 84-316, see Dkt. No. 13 at p. 2, which is the same indictment number r e fe r e n c e d in documents Smith has attached to the memorandum of law he filed in support of his amended petition in this action. See Supporting Mem. at atta ch ed (unnumbered) pp. 1 (trial court noting that Smith was charged in I n d ic t m e n t No. 84-316-1 with murder in the second degree and first degree p e r ju r y ), 2 (letter from Smith to Onondaga County Court referencing Indictment N o . 84-361) and 6 (Order of Appellate Division dated August 9, 2000 denying leave application filed by Smith in conjunction with Indictment No. 84-316-1). Finally, Smith himself candidly admits in documents he filed in this action tha t he previously filed a petition for a writ of habeas corpus that was denied in this District. See Dkt. No. 6 at 12; Supporting Mem. at pp. 3, 14 and 20. S i n c e the present action attacks the same judgment of conviction that was Although the Report-Recommendation was signed by then-Magistrate Judge Hurd on June 20, 1991, it was not filed by the Clerk until July 3, 1991. See June, 1991 Report-Recommendation. 4 5 Case 9:01-cv-00326-LEK-DEP Document 16 Filed 08/04/2005 Page 5 of 6 the subject of the petition Smith filed in 90-CV-0679, this Court must next dete rm ine whether that prior action was dismissed with prejudice. See Mandate a t 1 (citing Thomas, 136 F.3d at 229). In his June, 1991 Report-Recom m e nda t i on, then-Magistrate Judge Hurd f o u n d no merit in either of the grounds Smith asserted in the petition filed in 90CV -067 9. See June, 1991 Report-Recommendation at pp. 5-13. That reco m m end ation addressed the merits of petitioner's claims. Id. United States Distric t Judge Con. G. Cholakis subsequently adopted that ReportR e c o m m e n d a t io n , and dismissed Smith's petition, by order filed on September 26, 1991. Dkt. No. 15. Since the amended petition filed in the present action challenges the s a m e convictions that were challenged in the petition filed in 90-CV-0679, and that prior petition was dism isse d on the merits, this Court reaffirms Magistrate J u d g e Peebles' prior finding that the present action is a "second or successive" hab eas petition. See Dkt. No. 7 at p. 2; see also Thomas, 136 F.3d at 229; Va squ ez v. Parrott, 318 F.3d 387, 389-90 (2d Cir. 2003); James v. Walsh, 308 F.3d 162, 167-68 (2d Cir. 2002); Graham v. Costello, 299 F.3d 129, 133-34 (2d C i r . 2002). This Court therefore transfers this matter to the Second Circuit so t h a t such court may determine whether Smith may properly litigate the present m atter in this District. See Torres v. Senkowski, 316 F.3d 147, 151 (2d Cir. 2 0 0 3 ) (citing Corrao v. United States, 152 F.3d 188, 190-91 (2d Cir. 1998); 5 Case 9:01-cv-00326-LEK-DEP Document 16 Filed 08/04/2005 Page 6 of 6 L i ri a n o, 95 F.3d at 123; Warren v. Munson, No. 96-CV-1855, 1997 WL 160125, a t *1 (N.D.N.Y. Mar. 31, 1997) (Pooler, D.J.) (quoting Liriano). W H E R E F O R E , it is hereby O R D E R E D , that this action is transferred to the United States Court of App eals for the Second Circuit for the reasons stated above, and it is further ORDERED, that the Clerk serve a copy of this Order on the petitioner. I T IS SO ORDERED Dated: A u g u s t 04, 2005 A lb a ny , NY 6

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