Shepherd v. Annucci

Filing 9

ORDER: ORDERED, that, due to Petitioner's failure to comply with the Court's July 2017 Order (Dkt. No. 7) and January 2018 Order (Dkt. No. 8), the Petition (Dkt. No. 1) is DISMISSED. ORDERED, that no certificate of appealability ("C OA") shall issue in this case because Petitioner has failed to make a "substantial showing of the denial of a constitutional right" pursuant to 28 U.S.C. § 2253(c)(2). Signed by Senior Judge Lawrence E. Kahn on 3/22/18. (served on petitioner by regular mail)(alh, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
EON SHEPHERD,
Petitioner,
-against-

9:17-CV-0548 (LEK)

COMMISSIONER ANNUCCI,
Respondent.

ORDER
On April 10, 2017, petitioner Eon Shepherd filed a petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254, in which he challenges a prison disciplinary hearing resulting in a
sentence of “thirty days . . . confinement” imposed on February 27, 2015. Dkt. No. 1 (“Petition”)
at 1.
In a Decision and Order filed on July 17, 2017, the Court noted that this action should
have been commenced pursuant to 42 U.S.C. § 1983 “because the challenged disciplinary
sentence does not impact the overall length of the Petitioner’s confinement on his state court
criminal conviction.” Dkt. No. 7 (“July 2017 Order”) at 1–2. The Court directed Petitioner to
submit a written response “either (1) consenting to the recharacterization of his Petition as a
complaint under 42 U.S.C. § 1983, or (2) demonstrating why he properly filed the present action
as a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254,” such that recharacterizing
it as a complaint under § 1983 was unwarranted. Id. at 2. The Court further directed that, if
Petitioner consented or “d[id] not file a response” by August 21, 2017, he “shall submit an
amended compl[ai]nt under 42 U.S.C. § 1983” by the same date. Id. at 3.
Petitioner did not file a response or an amended § 1983 complaint. Docket. On January 9,

2018, the Court afforded Petitioner a final extension of thirty days to file an amended complaint
pursuant to § 1983. Dkt. No. 8 (“January 2018 Order”) at 2. The Court cautioned Petitioner that,
if he failed to do so, this action would be dismissed. Id.
To date, Petitioner has filed no response to the Court’s July 2017 Order and has not filed
an amended complaint. In accordance with the Court’s January 2018 Order, this action is
dismissed.
Accordingly, it is hereby:
ORDERED, that, due to Petitioner’s failure to comply with the Court’s July 2017 Order
(Dkt. No. 7) and January 2018 Order (Dkt. No. 8), the Petition (Dkt. No. 1) is DISMISSED; and
it is further
ORDERED, that no certificate of appealability (“COA”) shall issue in this case because
Petitioner has failed to make a “substantial showing of the denial of a constitutional right”
pursuant to 28 U.S.C. § 2253(c)(2);1 and it is further
ORDERED, that the Clerk serve a copy of this Order upon Petitioner in accordance with
the Local Rules.
IT IS SO ORDERED.

DATED:

March 22, 2018
Albany, New York

1

See Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (Ҥ 2253 permits the issuance of a
COA only where a petitioner has made a ‘substantial showing of the denial of a constitutional
right’”).
2