Brown v. Chappius

Filing 18

DECISION AND ORDER: ORDERED that 1. Respondent's letter motion to transfer this action to the United States Court of Appeals for the Second Circuit (Dkt. No. 17 ) is GRANTED; 2. The Clerk of the Court shall transfer this petition to the Uni ted States Court of Appeals for the Second Circuit, pursuant to 28 U.S.C. § 1631, for 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 1/9/18. (served on petitioner by regular mail)(alh, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK

MARK BROWN,
Petitioner,
v.
9:17-CV-0779
(DNH/TWD)
P. CHAPPIUS, JR.,
Superintendent,
Respondent.

APPEARANCES:

OF COUNSEL:

MARK BROWN
11-A-3283
Petitioner, pro se
Elmira Correctional Facility
P.O. Box 500
Elmira, NY 14902
DAVID N. HURD
United States District Judge
DECISION and ORDER
I. INTRODUCTION
In July 2017, petitioner Mark Brown ("Brown" or "petitioner") filed a petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254 along with supporting exhibits consisting of
certain state court records. Dkt. No. 1, Petition ("Pet."); Dkt. No. 1-1, Exhibits.
Currently pending is respondent Superintendent P. Chappius, Jr.'s ("respondent")
letter motion seeking to transfer this case to the United States Court of Appeals for the
Second Circuit as a second or successive petition pursuant to 28 U.S.C. § 2244(b). Dkt. No.
17, Letter Motion. For the reasons that follow, respondent's motion is granted and the

petition is transferred to the Second Circuit.
II. DISCUSSION
A. The Petition
Brown challenges a July 14, 2011 conviction in the Schenectady County Court of
attempted second degree robbery. Pet. at 1. 1 Petitioner asserts that on December 13, 2012
the New York State Supreme Court, Appellate Division, Third Department, affirmed this
judgment of conviction; that on July 16, 2013 the New York Court of Appeals denied him
leave to appeal; and that on January 13, 2014 the United States Supreme Court denied his
petition for a writ of certiorari. Id. at 2-3; accord, People v. Brown, 101 A.D.3d 1267 (3d Dep’t
2012), lv. denied, 21 N.Y.3d 1014 (2013), cert. denied, 134 S. Ct. 938 (2014).
Brown argues that he is entitled to habeas relief because (1) he was coerced to plead
guilty and (2) the Schenectady County Court "reinstated and preserved" his right to appeal,
despite his earlier waiver of the right to appeal, when it imposed a sentence outside of his
"plea bargain guidelines." Pet. at 5-7. Petitioner asserts in his pending petition that he has
not previously filed any type of petition, application, or motion in federal court regarding the
conviction he is now challenging. Id. at 12.
B. Petitioner's Prior Habeas Petition
On or about March 10, 2014, Brown filed a petition pursuant to 28 U.S.C. § 2254 in
this Court, challenging the same conviction at issue in his current petition. Brown v. Racette,
No. 9:14-CV-0262 (TJM), Dkt. No. 1, Petition.
On April 29, 2015, Senior United States District Court Judge Thomas J. McAvoy

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Citations to the petition refer to the pagination generated by CM/ECF, the Court's electronic filing system.

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issued a Decision and Order denying and dismissing the petition. Id. at Dkt. No. 9. Judge
McAvoy concluded that (1) Brown's claim that his waiver of the right to appeal was invalid
was based on state law and did not entitle him to federal habeas relief; (2) petitioner's claim
that his legal sentence was nevertheless harsh and severe was not cognizable; and (3) the
Appellate Division's decision finding that petitioner was advised that sentencing could
proceed in his absence, and of the potential sentence he faced if he failed to appear at
sentencing, was not contrary to, or an unreasonable application of, clearly established
Supreme Court precedent. Id.
C. Analysis
The Antiterrorism and Effective Death Penalty Act (AEDPA) restricted the ability of
petitioners to file second or successive petitions.
It 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.").
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

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U.S. 147, 153 (2007) (per curiam); Torres v. Senkowski, 316 F.3d 147, 149, 151-52 (2d Cir.
2003).
Upon review, Brown's current petition is successive because he is challenging the
same judgment of conviction that he challenged in his previous habeas petition, and his first
petition was denied and dismissed on the merits in 2015. Brown, No. 9:14-CV-0262.
Moreover, there is no basis for concluding that petitioner could not have raised in his
previous petition the grounds for relief asserted in this petition. 2
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 Circuit
pursuant to 28 U.S.C. § 1631 for 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, Brown's petition will be transferred to the
Second Circuit for review.
III. CONCLUSION
Therefore, it is
ORDERED that
1. Respondent's letter motion to transfer this action to the United States Court of
Appeals for the Second Circuit (Dkt. No. 17) 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

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Indeed, in his current petition, petitioner states that he informed appellate counsel of the basis for his claim
that his plea was coerced, but that counsel failed to raise it. Pet. at 5-6. The factual predicates for petitioner's
current claims were plainly known to him not only at the time he filed his first habeas petition, but at the time that he
pursued his direct appeal in state court.

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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: January 9, 2018
Utica, New York.

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