Strauss v. NYSDOCCS et al

Filing 4

DECISION AND ORDER: 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. Signed by Judge Brenda K. Sannes on July 29, 2022. {order served via regular mail on petitioner}(nas)

Case 9:22-cv-00719-BKS-CFH Document 4 Filed 08/01/22 Page 1 of 7

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK

ZACHARY STRAUSS,
Petitioner,
v.

9:22-CV-0719
(BKS/CFH)

NYSDOCCS; NYS PAROLE DEPARTMENT,
Respondents.

APPEARANCES:
ZACHARY STRAUSS
Petitioner, pro se
2642 Genesee Street
1st Floor South
Utica, NY 13502
BRENDA K. SANNES
United States District Judge
DECISION and ORDER
I.

INTRODUCTION
Petitioner Zachary Strauss seeks federal habeas corpus relief pursuant to 28 U.S.C. §

2254. Dkt. No. 1, Petition ("Pet."). On July 8, 2022, the Court administratively closed the
action for petitioner's failure to properly commence it. Dkt. No. 3, Administrative Closure
Order, at 2. Petitioner was provided thirty days to either (1) pay the court's filing fee of five
dollars ($5.00); or (2) submit a completed, signed, and properly certified application to
proceed in forma pauperis ("IFP"). Id.
Petitioner remitted the statutory filing fee, and the case was reopened. Dkt. Entry
dated 07/14/22 (identifying receipt information for the filing fee transaction); Dkt. No. 3, Text
Order (reopening case). Upon further review of petitioner's prior habeas action, and for the

Case 9:22-cv-00719-BKS-CFH Document 4 Filed 08/01/22 Page 2 of 7

reasons discussed below, this petition must be transferred to the Second Circuit as a
successive petition.
II.

PREVIOUS HABEAS PETITION
Petitioner previously filed two habeas corpus actions in this Court. The first was in

2018, and challenged a 2012 judgment of conviction in Oneida County, upon a jury verdict,
of first degree rape. See Strauss v. Tynon, No. 9:18-CV-687 (GLS/TWD) ("Strauss I"), Dkt.
No. 1, Petition ("Pet."), at 1.1 The New York State Supreme Court, Appellate Division, Fourth
Department, affirmed the judgment of conviction on direct appeal; on June 8, 2017, the New
York Court of Appeals denied leave to appeal; and, on September 27, 2017, the Court of
Appeals denied reconsideration. People v. Strauss, 147 A.D.3d 1426, 1427 (4th Dep't
2017), lv. denied 28 N.Y.3d 1087 (2017), recon. denied 30 N.Y.3d 953 (2017).
Petitioner argued that he was entitled to habeas relief on the following grounds: (1) his
rights to due process and equal protection were violated due to, among other things, the
presentation of evidence of his prior bad acts in violation of the trial court's ruling; (2) defense
counsel rendered ineffective assistance; (3) the court erred in admitting a video recording of
his statement to law enforcement; and (4) the prosecution engaged in misconduct. Strauss I,
Pet. at 7-22. The action was ultimately dismissed without prejudice pursuant to petitioner's
motion to voluntarily withdraw the petition. Strauss I, Dkt. No. 39, Motion; Dkt. No. 40,
Response; Dkt. No. 41, Decision and Order dated 05/18/20; Dkt. No. 42, Judg ment.
The second petition was filed in 2021, and again challenged the 2012 judgment of
conviction in Oneida County, upon a jury verdict, of first degree rape. Strauss v. Tynon, No.

1

Citations to petitioner's filings refer to the pagination generated by CM/ECF, the Court's electronic filing

system.

2

Case 9:22-cv-00719-BKS-CFH Document 4 Filed 08/01/22 Page 3 of 7

9:21-CV-0554 (GLS) ("Strauss II"), Dkt. No. 1, Petition ("Pet."), at 1-2. Petitioner argued that
he was entitled to relief because newly discovered evidence demonstrated that he was
actually innocent of the crime for which he was wrongfully convicted. Strauss II, Pet. at 5.
Specifically, petitioner presented the affidavit of Thomas Sperduto – a man who he
met, while incarcerated in 2019 – who "stated he had firsthand knowledge of the alleged
incident" and "that he was with [the victim] and [had] first hand knowledge that would refute
what [she] was claiming to be true." Strauss II, Pet. at 6-7. Assuming the truth of the
affidavit, in conjunction with information from a witness, Michael Tanner, petitioner concluded
that the new evidence established that it was impossible for petitioner to have raped the
victim on the alleged date and location. Strauss II, Pet. at 6-7.2
In a Decision and Order dated April 29, 2022, this Court denied and dism issed the
petition. Strauss II, Dkt. No. 21, Decision and Order ("April Order"); Strauss II, Dkt. No. 22,
Judgment. The Court held that (1) to the extent there was a freestanding actual innocence
claim available to petitioner, he had failed to satisfy the burden required to entitle him to its
relief, and (2) the petition was untimely. Strauss II, April Order at 15-28. Specifically, the
Court determined that petitioner's alleged "new evidence" was not compelling; it did not
establish actual, factual innocence; and it could not save the petition from the statutory time
bar. Strauss II, April Order at 23-28.
III.

THE PRESENT PETITION
Petitioner fails to provide all the details for the conviction which he is challenging;

2

To support his federal habeas claims, petitioner relies on Tanner and attorney Cooke's testimony from the
440 hearing determining whether petitioner's trial counsel was constitutionally ineffective. Compare Pet. at 22 with
Dkt. No. 15-2 at 449; Compare Pet. at 24-25 with Dkt. No. 15-2 at 490-91; Compare Pet. at 26-27 with Dkt. No. 15-2
at 499-500.

3

Case 9:22-cv-00719-BKS-CFH Document 4 Filed 08/01/22 Page 4 of 7

however, he indicates that it was from Oneida County, pursuant to a jury verdict, for first
degree rape and resulted in a sentence of ten years incarceration and ten years post-release
supervision. Pet. at 1-2.
Petitioner also fails to provide all of the specifics associated with his direct appeal, but
indicates that the New York State Appellate Division, Fourth Department, affirmed his
judgment of conviction on July 7, 2016, and that the New York State Court of Appeals denied
his application for leave to appeal on June 10, 2017. Pet. at 2-3.
Petitioner also indicates that he filed a motion to vacate his conviction pursuant to
New York State Criminal Procedure Law § 440.10 in Oneida County Court, in June of 2020,
arguing ineffective assistance of counsel. Pet. at 3. While petitioner received a hearing, the
motion was denied on January 6, 2021. Id. at 3-4.
Finally, petitioner acknowledges one of the federal habeas petitions he filed in this
district. Pet. at 4 (identifying case number "9:21-CV-0554 (GLS)" seeking federal habeas
relief pursuant to 28 U.S.C. § 2254 based upon petitioner's actual innocence).
Petitioner contends that he is entitled to f ederal habeas relief because (1) there was
prosecutorial misconduct during his criminal trial when the People failed to request a
Ventimiglia hearing before introducing inadmissible and false evidence of cocaine
transactions, Pet. at 5-7; (2) petitioner is actually innocent based upon newly discovered
evidence obtained during the course of petitioner's 440 motion, id. at 8-10; and (3)
petitioner's trial counsel was constitutionally ineffective for failing to call a relevant witness to
testify on petitioner's behalf, id. at 10-12. In sum, petitioner states that he "has been fighting
the charges from the beginning and has done numerous petitions seeking relief due to the
fact that petitioner knows and asserts his innocence, and asks that the Northern Dist. Court
4

Case 9:22-cv-00719-BKS-CFH Document 4 Filed 08/01/22 Page 5 of 7

treat this as a claim of Actual Innocence[.]" Id. at 13.
IV.

DISCUSSION
The Antiterrorism and Effective Death Penalty Act (AEDPA) restricted the ability of

petitioners to file second or successive petitions. Specifically, "[n]o . . . district judge shall be
required to entertain an application for a writ of habeas corpus . . . if it appears that the
legality of such detention has been determined by a judge or court of the United States on a
prior application for a writ of habeas corpus[.]" 28 U.S.C. § 2244(a). Accordingly, a petition
is second or successive when it attacks the same judgment that was previously attacked, see
Vasquez v. Parrott, 318 F.3d 387, 390 (2d Cir. 2003), and dism issed on the merits, Murray v.
Greiner, 394 F.3d 78, 81 (2d Cir. 2005), in a prior petition. See also 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. See 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)(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
5

Case 9:22-cv-00719-BKS-CFH Document 4 Filed 08/01/22 Page 6 of 7

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.").
Here, while petitioner failed to indicate all the specifics of his criminal conviction and
direct appeal, he did acknowledge his previous habeas petition in this district, Strauss II, and
the Court's search of its electronic database found habeas petitions filed by an individual with
the same name, underlying criminal conviction, and approximate dates of state court
decisions denying his direct appeal of his underlying criminal conviction. Compare Strauss I,
Pet. at 1, and Strauss II, Pet. at 1-2, 5, with Pet. at 1-3. This reasonably indicates that,
consistent with petitioner's incomplete representations, he in fact filed two prior habeas
petitions in this district. As previously discussed, Strauss II also challenged petitioner's
conviction from Oneida County, pursuant to a jury verdict, for first degree rape. See Strauss
II, Pet. at 1-2. Thus, petitioner is challenging the same judgment of conviction that he
challenged before in his prior habeas petition.
Further, Strauss II was dismissed as untimely, which constitutes an adjudication on
the merits and satisfies the second prong of filing a successive petition. Strauss II, April
Order at 16-28; see also Murray, 394 F.3d at 81 ("[D]ismissal of a § 2254 petition for failure
to comply with the one-year statute of limitations constitutes an adjudication on the m erits
that renders future petitions under § 2254 challenging the same conviction 'second or
successive' . . . ."). 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 made most, if not all of these arguments in his last two petitions.
However, the only argument analyzed in any detail concerned petitioner's allegations
that he was actually innocent. Strauss II, Pet. at 5. While petitioner argues the same claim
6

Case 9:22-cv-00719-BKS-CFH Document 4 Filed 08/01/22 Page 7 of 7

here, he failed to include any specific facts supporting his claim. Accordingly, it is unclear to
this Court whether petitioner advances his actual innocence claims based on the affidavit of
Thomas Sperduto and testimony of Michael Tanner; however, if he does, those arguments
were already denied by this Court in Strauss II. Strauss II, April Order at 15-28.
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.
V.

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 29, 2022

7