Van Guilder v. Tynon

Filing 6

ORDER TRANSFERRING Successive Habeas Petition to U.S. Court of Appeals for the Second Circuit. It is ORDERED that the Clerk transfer this petition to the United 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; and it is further ORDERED that the Clerk serve a copy of this Order on petitioner in accordance with the Local Rules. Signed by Judge Brenda K. Sannes on July 14, 2020. (Copy served via regular mail on petitioner)(rep)

Case 9:20-cv-00741-BKS-DJS Document 6 Filed 07/14/20 Page 1 of 5

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK

CHRISTOPHER VAN GUILDER,
Petitioner,
v.

9:20-CV-0741
(BKS/DJS)

SUPERINTENDENT TYNON,
Respondent.

APPEARANCES:

OF COUNSEL:

CHRISTOPHER VAN GUILDER
Petitioner, pro se
14-A-2430
Greene Correctional Facility
P.O. Box 975
Coxsackie, NY 12051
BRENDA K. SANNES
United States District Judge
DECISION and ORDER
I.

INTRODUCTION
Petitioner Christopher Van Guilder seeks federal habeas corpus relief pursuant to 28

U.S.C. § 2254. Dkt. No. 1, Petition ("Pet.").1, 2 For the reasons that follow, the Court deems
this a successive petition for a writ of habeas corpus and will transfer it to the United States
Court of Appeals for the Second Circuit.
II.

DISCUSSION

1

Petitioner initially filed this action in the Eastern District of New York and, on July 2, 2020, the case was
transferred to this Court. Dkt. No. 4, Transfer Order; Dkt. No. 5.
2

For the sake of clarity, citations to petitioner's filings refer to the pagination generated by CM/ECF, the
Court's electronic filing system.

Case 9:20-cv-00741-BKS-DJS Document 6 Filed 07/14/20 Page 2 of 5

A.

Petitioner's Prior Habeas Petition

On February 24, 2017, petitioner sought federal habeas corpus relief in this Court,
pursuant to 28 U.S.C. § 2254, challenging a 2014 judgment of conviction in Saratoga
County, upon a jury verdict, to two counts each of third degree criminal sale of a controlled
substance, third degree criminal possession of a controlled substance, and seventh degree
criminal possession of a controlled substance. Vanguilder v. Martuscello, No. 9:17-CV-0215
(LEK) ("Vanguilder I"), Dkt. No. 1, Petition, at 1-2. Petitioner argued that he was entitled to
federal habeas relief because (1) his conviction was supported by legally insufficient
evidence; (2) his constitutional right to counsel was violated when (a) the trial court failed to
disqualify petitioner's trial counsel due to his conflict of interest and (b) the trial court failed to
secure an appropriate waiver from petitioner regarding said conflict; (3) the trial court wrongly
admitted prejudicial and irrelevant testimony depriving petitioner of a fair trial; (4) the trial
court erred in how it responded to the jury's inquiries; and (5) petitioner's trial counsel was
ineffective when he (a) failed to disclose his conflict of interest, (b) failed to assert an
entrapment defense, (c) failed to file motions to preserve Molineaux issues, and (d) failed to
request an appropriate alternative charge to duplicitous counts in the indictment. Vanguilder
v. Martuscello, No. 9:17-CV-0215 (LEK), 2018 W L 10758589, at *6 (N.D.N.Y. May 23, 2018).
On May 23, 2018, this Court denied and dismissed the petition on the merits.
Vanguilder, 2018 WL 10758589, at *17. Specifically, as is relevant to the present petition,
the Court found that petitioner's ineffective of assistance claims – including his claim
asserting a conflict of interest – were procedurally defaulted and meritless. Id., 2018 WL
10758589, at *14.

2

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On June 29, 2018, petitioner filed a Notice of Appeal to the United States Court of
Appeals for the Second Circuit. Vanguilder I, Dkt. No. 33, Notice of Appeal. On October 24,
2018, the Second Circuit dismissed petitioner's appeal because he did "not ma[k]e a
substantial showing of the denial of a constitutional right." Id., Dkt. No. 40, Mandate, at 1
(citing 28 U.S.C. § 2253(c);Miller-El v. Cockrell, 537 U.S. 322, 327 (2003)).
B.

The Present Petition

Petitioner again challenges his 2014 judgment of conviction in Saratoga County, upon
a jury verdict, to two counts each of third degree criminal sale of a controlled substance, third
degree criminal possession of a controlled substance, and seventh degree criminal
possession of a controlled substance. Pet. at 1-2. Petitioner argues that he is entitled to
federal habeas relief because his counsel was constitutionally ineffective due to a conflict of
interest. Id. at 5-7.
Petitioner readily admits that he previously petitioned for habeas relief in this Court.
Pet. at 12. Moreover, petitioner also acknowledges that his prior habeas petition asserted an
identical claim to that which he presently brings before the Court. Id. at 6.
C.

Analysis

The Antiterrorism and Effective Death Penalty Act (AEDPA) restricted the ability of
petitioners to file second or successive petitions. A petition is a second or successive
application when it "attacks the same judgment that was attacked in a prior petition,"
Vasquez v. Parrott, 318 F.3d 387, 390 (2d Cir. 2003) (internal quotation marks omitted), the
prior petition was dismissed on the merits, Murray v. Greiner, 394 F.3d 78, 81 (2d Cir. 2005),
and the later petition "raises a claim that was, or could have been, raised in [the] earlier

3

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petition." James v. Walsh, 308 F.3d 162, 167 (2d Cir. 2002); accord, Adams v. Corcoran,
416 F. App'x 84, 85 (2d Cir. 2011) ("While not every numerically second petition is
considered a second or successive one, a dismissal on the merits . . . renders any
subsequent petition second or successive within the meaning of AEDPA.") (internal quotation
marks omitted).
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); Torres v. Senkowski, 316 F.3d 147, 149, 151-52 (2d Cir.
2003). Instead, the 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 also 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.").
At the outset, petitioner acknowledges that this is his second habeas petition in this
Court. Pet. at 6, 12. 3 Petitioner's current submission is another attack on his 2014 Saratoga

3

The Court notes that petitioner's last name is slightly different in the petitions (Vanguilder versus Van
Guilder); however, the information regarding the underlying criminal conviction and the Department Identification
Numbers for both petitioners are identical. Compare Pet. at 1-2 with Vanguilder I, Petition, at 1-2. Accordingly,
despite this minor discrepancy, the Court concludes that the same individual commenced both petitions.

4

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County conviction. Compare Pet. at 1-5 with Vanguilder I, Petition, at 1-5. The petition is
successive because petitioner is challenging the same judgment of conviction that he
challenged before in his prior habeas petition. These claims have been previously dismissed
on the merits. Vanguilder, 2018 WL 10758589, at *17. Moreover, there is no basis for
concluding that petitioner could not have raised in his earlier petition the grounds for relief
asserted in his present petition. In fact, petitioner did raise this identical claim in his earlier
petition, and it was considered, denied, and dismissed by the Court on both procedural and
substantive grounds. Id., 2018 WL 10758589, at *14.
As district courts have no jurisdiction to decide successive petitions, the Court is
required to transfer this action to the appropriate Court of Appeals. Torres, 316 F.3d at
151-52. Accordingly, the Court transfers this action to the Second 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. Id.
III.

CONCLUSION
WHEREFORE, it is
ORDERED that the Clerk 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 it is further
ORDERED that the Clerk serve a copy of this Order on petitioner in accordance with
the Local Rules.
Dated: July 14, 2020

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