Jackson v. Apple

Filing 17

DECISION AND ORDER: ORDERED that petitioner's motion for reconsideration, Dkt. No. 16 , is DENIED. ORDERED that the amended petition, Dkt. No. 6, is DISMISSED WITHOUT PREJUDICE for failure to exhaust available state court remedies. O RDERED 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). Any further request for a COA must be addressed to the Court of Appeals (Fed. R. App. P. 22(b)). Signed by U.S. District Judge Mae A. D'Agostino on September 19, 2022. {order served via regular mail on petitioner}(nas)

Case 9:22-cv-00157-MAD Document 17 Filed 09/19/22 Page 1 of 6

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
HAROLD JACKSON,
Petitioner,
v.

9:22-CV-0157
(MAD)

SHERIFF CRAIG APPLE,
Respondent.
APPEARANCES:

OF COUNSEL:

HAROLD JACKSON
Petitioner, pro se
10645
Albany County Correctional Facility
840 Albany Shaker Road
Albany, NY 12211
MAE A. D’AGOSTINO
United States District Judge
DECISION and ORDER
Petitioner Harold Jackson seeks federal habeas relief pursuant to 28 U.S.C. § 2254.
Dkt. No. 6, Amended Petition ("Am. Pet.").
In 2016, petitioner was convicted in Albany County Court, upon a jury verdict, of first
degree rape and a first degree criminal sexual act. People v. Jackson, 176 A.D.3d 1312,
1312 (3rd Dep't 2019). Petitioner appealed and, on October 17, 2019, the New York State
Supreme Court Appellate Division, Third Department reversed the judgment and remitted the
matter back to the trial court for further proceedings. Id. at 1315.
On January 24, 2022, a second trial occurred. Dkt. No. 1 at 4. On January 27, 2022,
pursuant to a jury verdict, petitioner was again convicted. Id. at 1. Petitioner indicated he has

Case 9:22-cv-00157-MAD Document 17 Filed 09/19/22 Page 2 of 6

an appeal presently pending in the Third Department, presumably of the 2022 conviction.
Am. Pet. at 12.
On three different occasions, the Court has granted petitioner leave to file an amended
petition to clarify the procedural posture of any direct or collateral challenge to petitioner's
2022 conviction. Dkt. No. 5, Decision and Order ("March I Order"); Dkt. No. 7, Decision and
Order ("March II Order"); Dkt. No. 15, Decision and Order ("August Order"). Specifically, the
March II Order outlined that petitioner (1) could not bring forth any challenges related to his
first conviction, in 2016, because it had already been reversed, March II Order at 3; and (2)
had to identify if, how, and when his state court remedies were exhausted with respect to his
2022 conviction, id. at 4.
In response, petitioner filed a letter motion requesting the transcript from his recent
sentencing hearing, in April of 2002, to help him better and more accurately present his
claims for federal habeas corpus relief. Dkt. No. 8, Letter Motion. The Court denied the
motion, and directed petitioner to "state his claims and the facts that underlie them, as well as
indicate the state courts before which [petitioner] exhausted his constitutional claims." Dkt.
No. 9, Text Order ("April Order").
The April Order appeared to cross in the mail with another letter motion from
petitioner, again requesting the state court sentencing transcript. Dkt. No. 11, Letter Motion.
The Court again denied the request and provided petitioner with an extension of time within
which to file his second amended petition. Dkt. No. 12, Text Order ("May Order").
Petitioner then filed a motion for reconsideration of the May Order denying his request
for the April 2022 sentencing transcript. Dkt. No. 13. Petitioner explained that the Court's
conclusion in the March II Order was "based on a misinterpretation of the facts," and went on
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to articulate arguments about why challenges to the 2016 conviction still existed. Id. at 2-5.
Further, petitioner argued that the May Order was "harmful" because petitioner's "intentions .
. . to present the State's unfair rulings affecting and directly resulting in the retrial and the
eventual unfair rulings therein," would be hindered. Id. at 5.
The Court denied petitioner's motion. See August Order. Specifically, the Court held
that (1) petitioner's reasoning did not justify reconsideration because he failed to identify
controlling decisions or data that would reasonably change the May Order; (2) petitioner was
incorrectly using the motion for reconsideration to challenge the Court's decisions that
challenges to petitioner's 2016 conviction were moot and exhaustion was a necessary
prerequisite for ordering respondent to file an answer; and (3) petitioner's argument was
meritless because possession of a sentencing transcript was useless for compliance with the
March II Order. August Order, at 4-5. Petitioner was "given one final opportunity to file an
amended pleading," consistent with the terms of the Court's prior orders. Id. at 5. Petitioner
was warned that failure to produce such an amended pleading "will result in the action being
dismissed as premature." Id. at 5; see also id. at 7 (directing the Clerk to enter judgment
dismissing the action if a second amended petition is not filed).
Presently before the Court is petitioner's objection to the August Order. Dkt. No. 16.
Petitioner repeatedly, and incorrectly, refers to the undersigned as a Magistrate Judge which
propelled him to the conclusion that objections to the August Order were an appropriate
procedural vehicle available to him. Id. at 1, 3. However, petitioner is incorrect as the
undersigned is a District Judge who issued a Decision and Order; therefore, petitioner is not
entitled to an objection period. Given that petitioner is contesting the Court's prior Decision
and Order, this submission is again deemed a motion for reconsideration. See e.g., Castro v.
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United States, 540 U.S. 375, 381 (2003) ("Federal courts sometimes will ignore the legal
label that a pro se litigant attaches to a motion and recharacterize the motion in order to place
it within a different legal category . . . in order to . . . create a better correspondence between
the substance of a pro se motion's claim and its underlying legal basis[.]") (internal citations
omitted).
As previously outlined in the August Order, "[t]he standard for . . . [reconsideration] is
strict, and reconsideration will generally be denied unless the moving party can point to
controlling decisions or data that the court overlooked . . . that might reasonably be
expected to alter the conclusion reached by the court." Shrader v. CSX Transp., Inc., 70 F.3d
255, 257 (2d Cir. 1995). Reconsideration is warranted only where controlling law has
changed, new evidence is available, clear error must be corrected, or manifest injustice
prevented. Long v. U.S. Dep't of Justice, 778 F. Supp. 2d 222, 228-29 (N.D.N.Y. 2011)
(citing Doe v. New York City Dep't of Soc. Servcs., 709 F.2d 782, 789 (2d Cir. 1983));
Jackson v. Jimino, 506 F. Supp. 2d 105, 108-09 (N.D.N.Y. 2007). However, "[a] motion for
reconsideration is not a vehicle for relitigating old issues, presenting the case under new
theories, securing a rehearing on the merits, or otherwise taking a second bite at the apple."
Utica Mut. Ins. Co. v. Clearwater Ins. Co., No. 6:13-CV-1178 (GLS/TWD), 2015 WL 4496374,
at *1 (N.D.N.Y. July 23, 2015).
Here, petitioner's reasoning does not justify reconsideration of the Court's August
Order. Generally speaking, petitioner does not identify controlling decisions or data that the
Court overlooked which would reasonably change the Court's prior decision. Instead,
petitioner proffers conclusory arguments that the Court's decisions (1) not to address his
arguments about his 2016 conviction and (2) deprive him of law library access and
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sentencing transcripts were wrong. However, petitioner's disagreement with this Court's
decision is not a basis for reconsideration. Finkelstein v. Mardkha, 518 F. Supp. 2d 609, 611
(S.D.N.Y. 2007)).
The closest petitioner's motion came to complying with the Court's repeated orders
was petitioner's discussion about his filing, and the Third Department's refusal to consider, his
pro se supplemental brief. Dkt. No. 16 at 3. However, petitioner indicated that this was
relevant to the direct criminal appeal of his 2016 criminal conviction, challenges to which this
Court has already explained are moot. March II Order, at 3 (citing McFarland v. Kirkpatrick,
No. 1:08-CV-0065, 2017 WL 3981179, at *8 *W.D.N.Y. Aug. 16, 2017)). Further, petitioner
still failed to specifically identify the date of the filing or any final decisions or applications for
appeal related to the direct appeal of his 2022 retrial or any subsequent collateral state court
challenges which he may have pursued. Therefore, this Court is, again, left with the inability
to determine whether petitioner's claims have been properly exhausted.
In sum, even after three attempts and detailed direction from the Court about how to
cure the deficiencies in his prior filings, petitioner still fails to cure any of the shortcomings
that were identified in his prior petitions. Accordingly, despite having multiple opportunities,
petitioner has failed to provide the Court with an amended petition that provides the specific
details necessary to determine that petitioner has engaged in the prerequisite of properly
exhausting his state court remedies.
Accordingly, whether it be called petitioner's objections or a motion for reconsideration,
it is denied. Further, despite multiple attempts and direction from the Court, petitioner has
failed to cure the deficiencies required for the petition to progress. Therefore, consistent with
the warnings previously proffered by the Court, the action will be dismissed as premature.
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WHEREFORE, it is
ORDERED that petitioner's motion for reconsideration, Dkt. No. 16, is DENIED; and it
is further
ORDERED that the amended petition, Dkt. No. 6, is DISMISSED WITHOUT
PREJUDICE for failure to exhaust available state court remedies; 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 Any further request for a COA must be addressed to the
Court of Appeals (Fed. R. App. P. 22(b)); and it is further
ORDERED that the Clerk is directed to serve a copy of this Order on petitioner in
accordance with the Local Rules.
IT IS SO ORDERED.
Dated: September 19, 2022
Albany, New York

1

Miller-El v. Cockrell, 537 U.S. 322, 336 (2003).

6