DeLee v. Stallone
Filing
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DECISION AND ORDER: ORDERED that petitioner's IFP Application (Dkt. No. 2 ) is GRANTED. ORDERED, that the Clerk of the Court shall transfer this petition to the United States Court of Appeals for the Second Circuit, pursuant to 28 U.S.C. 67; 1631, f or a determination under 28 U.S.C. §2244(b) as to whether petitioner should be authorized to file a second or successive habeas petition in the district court. Signed by Judge David N. Hurd on 11/21/16. (served on petitioner by regular mail)(alh, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
MAURICE L. DELEE, also known as
Maurice DeLee,
Petitioner,
v.
9:16-CV-1351
(DNH/DJS)
DAVID A. STALLONE,
Respondent.
APPEARANCES:
OF COUNSEL:
MAURICE L. DeLEE
07-B-0369
Petitioner, pro se
Cayuga Correctional Facility
P.O. Box 1186
Moravia, New York 13118
DAVID N. HURD
United States District Judge
DECISION and ORDER
I. INTRODUCTION
Petitioner Maurice L. DeLee ("DeLee" or "petitioner") filed a petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254 and an application to proceed in f orma
pauperis ("IFP"). Dkt. No. 1, Petition ("Pet."); Dkt. No. 1-1, Exhibits to Petition ("Pet. Ex.");
Dkt. No. 1-2, Memorandum of Law ("Mem."); Dkt. No. 1-3, Exhibits to Memorandum of Law
("Mem. Ex."); Dkt. No. 2, IFP Application. 1 For the reasons that follow, petitioner's IFP
Application is granted and the petition is transferred to the U.S. Court of Appeals for the
1
The cited page numbers refer to those generated by the Court's electronic filing system ("ECF").
Second Circuit.
II. DISCUSSION
A. The Petition
DeLee challenges an August 25, 2006 judgment of conviction entered in Onondaga
County Court convicting him, after a jury trial, of burglary in the first degree, attempted
robbery In the second degree, and assault in the second degree. Petitioner was sentenced
to an aggregate determinate term of fifteen years with five years of post-release
supervision. Pet. at 1.
DeLee states that the Appellate Division, Fourth Department, affirmed his conviction in
2010, and the New York State Court of Appeals denied leave to appeal in 2011. Pet. at 2.
Petitioner claims he also filed a petition for certiorari in the United States Supreme Court,
which was denied. Id. at 3.
According to DeLee, he also filed various post-conviction motions, including a motion
to vacate the judgment of conviction pursuant to N.Y. Crim. Proc. Law ("CPL") Section
440.10 in 2007. Petitioner states the m otion was denied by County Court on May 22,
2008. Pet. at 3. Petitioner further states he also filed a writ of error coram nobis with the
Appellate Division, Fourth Department, on April 14, 2014. According to petitioner, this motion
was denied on June 13, 2014. Id. at 4. Finally, on March 10, 2015, petitioner states he f iled
a second CPL 440.10 motion, which County Court denied on March 8, 2016. Id. 4-5.
DeLee raises the following grounds for habeas relief: (1) the prosecution failed to
disclose material evidence favorable to petitioner and engaged in prosecutorial misconduct;
(2) petitioner was denied effective assistance of trial counsel; and (3) he is actually innocent.
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Pet. at 6-8. Petitioner requests an order for his "[i]mmediate release and/or an evidentiary
hearing on his actual innocence, Prosecutorial Misconduct and Inef fective assistance of trial
counsel claims." Id. at 18. For a more complete statement of petitioner's claims, reference is
made to the petition.
B. DeLee's Prior Habeas Petition
DeLee acknowledges that on June 13, 2011, he filed a petition pursuant to 28
U.S.C. § 2254 in the Northern District of New York. DeLee v. Graham, No. 9:11-CV-653
(MAD/CFH), 2013 WL 3049109 (N.D.N.Y. Jun. 17, 2013); see also Pet. at 15; Pet. Ex. at 1031.
In this 2011 habeas petition, DeLee challenged the same 2006 judgment of conviction
on the grounds that "(1) the evidence was legally insufficient to establish guilt and the verdict
was against the weight of the evidence; (2) the prosecution engaged in misconduct during
the course of his criminal trial; (3) Petitioner's trial counsel provided ineffective assistance; (4)
a 'breach of judicial powers' resulted when the trial court failed to 'correct [the] prosecutorial
misconduct when perjury was committed'; and (5) cumulative errors created by ineffective
counsel, prosecutorial misconduct, and breach of the judicial powers deprived Petitioner of a
fair trial." DeLee, 2013 WL 3049109, at *1.
On June 17, 2013, DeLee's petition was denied and dismissed in its entirety. DeLee,
2013 WL 3049109, at *13. No Certificate of Appealability was issued with respect to any of
petitioner's claims. Id.
C. Analysis
The Antiterrorism and Effective Death Penalty Act ("AEDPA") restricts the ability of
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petitioners to file second or successive petitions. As relevant here, AEDPA requires
individuals seeking to file a second or successive petition to obtain leave of the appropriate
Court of Appeals for an order authorizing the district court to consider the second or
successive application. 28 U.S.C. §§ 2244(b)(1)-(3); see Rule 9 of the Rules Governing
Section 2254 Cases in the United States District Courts ("Before presenting a second or
successive petition, the petitioner must obtain an order from the appropriate court of appeals
authorizing the district court to consider the petition as required by 28 U.S.C. § 2244(b)(3)
and (4)."); N.D.N.Y. L.R. 72.4 (c) ("Before a second or successive application is filed in this
Court, the applicant shall move in the Second Circuit Court of Appeals for an order
authorizing the district court to consider the application.").
Importantly, a district court has no jurisdiction to decide a second or successive
habeas petition on the merits without authority from the appropriate Court of Appeals. Burton
v. Stewart, 549 U.S. 147, 153 (2007) (per curiam) ("Burton twice brought claims contesting
the same custody imposed by the same judgment of a state court. As a result, under
AEDPA, he was required to receive authorization from the Court of Appeals before filing his
second challenge. Because he did not do so, the District Court was without jurisdiction to
entertain it."); Torres v. Senkowski, 316 F.3d 147, 149 (2d Cir. 2003) (holding that the
authorization requirement under the AEDPA "is jurisdictional and therefore cannot be
waived.").
Regardless of whether or not his petition has raised new or additional claims, DeLee's
current petition is second or successive because he is challenging the same judgment of
conviction that he challenged in his previous habeas petition, which was denied and
dismissed on June 17, 2013. DeLee, 2013 WL 3049109, at *13.
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Where, as here, a district court is presented with a second or successive habeas
petition, the appropriate procedure is for the district court to transfer the case to the
appropriate Circuit Court pursuant to 28 U.S.C. § 1631 f or a determination under 28
U.S.C. § 2244(b) as to whether the petitioner should be permitted to file a second or
successive habeas petition in the district court. Torres, 316 F.3d at 151-52. Accordingly,
DeLee's petition will be transferred to the U.S. Court of Appeals for the Second Circuit for
review.
III. CONCLUSION
Therefore, it is
ORDERED that
1. Petitioner's IFP Application (Dkt. No. 2) is GRANTED;
2. The Clerk of the Court shall transfer this petition to the United States Court of
Appeals for the Second Circuit, pursuant to 28 U.S.C. § 1631, f or a determination under 28
U.S.C. §2244(b) as to whether petitioner should be authorized to file a second or successive
habeas petition in the district court; and
3. The Clerk shall serve a copy of this Order on petitioner in accordance with the
Local Rules.
IT IS SO ORDERED.
Dated: November 21, 2016
Utica, New York.
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