McMullen v. United States of America

Filing 3

ORDER dismissing this action as it was improperly opened. The Clerk shall docket Petitioner's motion for counsel and IFP application in his criminal case, 5:04-CR-0444. Signed by Judge Frederick J. Scullin Jr. on 5/8/07. (rjb, )

McMullen v. United States of America

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Case 9:07-cv-00439-FJS-DRH

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Filed 05/08/2007

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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK ______________________________________________ FLOYD MCMULLEN, Petitioner, v. UNITED STATES OF AMERICA, Respondent. ______________________________________________ APPEARANCES FLOYD MCMULLEN 12211-052 Devens Federal Medical Center P.O. Box 879 Ayer, Massachusetts 01432 Petitioner pro se SCULLIN, Senior Judge MEMORANDUM-DECISION AND ORDER I. INTRODUCTION The Clerk of the Court has sent Petitioner Floyd McMullen's motion for appointment of counsel and his request to proceed in forma pauperis to this Court for its review. Petitioner is currently confined at Devens Federal Medical Center in Ayer, Massachusetts, and has not paid any filing fee for this action. 9:07-CV-439 (FJS/DRH)

II. DISCUSSION A. Petitioner's criminal conviction On September 24, 2004, following a non-jury trial before this Court (Munson, J.

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Case 9:07-cv-00439-FJS-DRH

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presiding), Petitioner was found not guilty only by reason of insanity. See United States v. McMullen, 5:04-CR-444, at Dkt. No. 25. The parties waived the subsequent hearing provided for in 18 U.S.C. § 4243(c); and, thereafter, upon its finding that Petitioner had failed to meet his burden to prove by clear and convincing evidence that his release would not create a substantial risk of bodily injury to another person or serious damage of property of another due to his present mental illness or defect, the Court committed Petitioner to the custody of the Attorney General, pursuant to 18 U.S.C. § 4243(d), (e). See id. By Order dated September 30, 2004, the Court directed the Federal Bureau of Prisons to confine Petitioner in an appropriate medical institution. See id. at Dkt. No. 26.

B.

This proceeding In his current motion, Petitioner seeks the appointment of counsel so that counsel can

request a discharge hearing on his behalf, pursuant to 18 U.S.C. § 4247(h). See Dkt. No. 2. Section 4247(h) provides that either counsel for or the legal guardian of a person hospitalized pursuant to 18 U.S.C. § 4243 may request a judicial hearing from the court that ordered the commitment to determine whether the hospitalized person should be discharged. Since Petitioner is not currently represented,1 he seeks the appointment of counsel pursuant to 18 U.S.C. § 3006A. Upon receiving Petitioner's motion, the Clerk of the Court opened this action and docketed the motion as a petition for habeas corpus relief pursuant to 42 U.S.C. § 2241.

At the time that the Court ordered Petitioner's commitment, the Federal Public Defender represented him. -2-

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Case 9:07-cv-00439-FJS-DRH

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However, upon review, the Court has determined that, instead of opening a new action, the Clerk of the Court should have docketed Petitioner's motion in his criminal action. Therefore, the Court directs the Clerk of the Court to docket Petitioner's motion for appointment of counsel and his application to proceed in forma pauperis in his criminal case, United States v. McMullen, 5:04-CR-444.

III. CONCLUSION Accordingly, for the above-stated reasons, the Court hereby ORDERS that the Clerk of the Court shall docket Petitioner's motion for appointment of counsel and his application to proceed in forma pauperis in his criminal case, United States v. McMullen, 5:04-CR-444; and the Court further ORDERS that this action is DISMISSED because it was improperly opened; and the Court further ORDERS that the Clerk of the Court shall serve a copy of this Order on Petitioner. The Clerk of the Court shall also send a copy of this Order to the United States Attorney for the Northern District of New York and the Federal Public Defender's Syracuse, New York office.

IT IS SO ORDERED.

Dated: May 8, 2007 Syracuse, New York

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