Munford v. Graham
Filing
22
MEMORANDUM OPINION AND ORDER......ORDERED that petitioner is given notice of the Courts intent to treat the motion as a successive habeas petition and given 30 days to withdraw the motion, if he elects to do so. If petitioner does not withdraw the motion within 30 days, it will be transferred to the Court of Appeals for the Second Circuit for treatment as a successive petition. (Signed by Judge Denise L. Cote on 9/28/2018) Copy Mailed to Curtis Munford By Chambers. (gr)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
CURTIS MUNFORD,
:
:
Petitioner,
:
:
-v:
:
HAROLD GRAHAM, Superintendent, Auburn :
Correctional Facility,
:
:
Respondent.
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:
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09cv7899 (DLC)
MEMORANDUM OPINION
AND ORDER
DENISE COTE, District Judge:
On August 9, 2018, petitioner Curtis Munford filed a motion
to set aside judgment pursuant to Rule 60(b)(1)-(5), Fed. R.
Civ. P.
This is a successive habeas petition.
As a result, it
will be transferred to the Court of Appeals if petitioner does
not withdraw the motion within 30 days.
On February 4, 2005, Munford was convicted following a jury
trial in New York Criminal Court of two counts of first degree
robbery, five counts of second degree robbery, and one count of
grand larceny related to the robbery of a Manhattan jewelry
store.
He was sentenced to an aggregate term of thirty-five
years’ imprisonment as a second felony offender.
He appealed on
the grounds that, inter alia, there was no probable cause for
his arrest, he was denied due process at a suppression hearing,
and the admission of his co-felon’s conviction violated his
Confrontation Clause rights.
The Appellate Division, First
Department affirmed the conviction on March 25, 2008.
Munford filed a petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254 in this Court on September 14,
2009.
That petition was denied in an Opinion and Order of June
29, 2010.
In his August 9, 2018 motion, Munford claims that he is
entitled to relief because the earlier conviction that served as
the predicate for his sentencing as a second felony offender was
invalid.
Specifically, he contends that his plea agreement in
connection with that conviction is invalid because he was not
informed that his sentence would include post-release
supervision.
This motion constitutes an attack on Munford’s
conviction and is properly characterized as a petition for a
writ of habeas corpus.
See Harris v. United States, 367 F.3d
74, 82 (2d Cir. 2004) (“a Rule 60(b) motion that attacks the
underlying conviction presents a district court with” the option
to “treat the Rule 60(b) motion as a second or successive habeas
petition” (citation omitted)).
28 U.S.C. § 2244 provides that “[b]efore a second or
successive application permitted by this section is filed in the
district court, the applicant shall move in the appropriate
court of appeals for an order authorizing the district court to
consider the application.”
28 U.S.C. § 2244(b)(3)(A).
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Therefore, a second or successive habeas petition filed
initially in the district court must be transferred to the Court
of Appeals.
Liriano v. United States, 95 F.3d 119, 123 (2d Cir.
1996) (per curiam).
The Second Circuit has stated that district
courts should
be careful not to recharacterize a portion of the
60(b) motion as a second or successive collateral
attack and transfer it to [the Court of Appeals] until
the prisoner has been informed of the district court’s
intent
to
transfer
and
afforded
a
sufficient
opportunity to avoid the transfer by withdrawing . . .
the portion of his 60(b) motion that the district
court
believes
presents
new
challenges
to
the
underlying conviction.
Harris, 367 F.3d at 82 (citation omitted).
Accordingly, it is
hereby
ORDERED that petitioner is given notice of the Court’s
intent to treat the motion as a successive habeas petition and
given 30 days to withdraw the motion, if he elects to do so.
If petitioner does not withdraw the motion within 30 days, it
will be transferred to the Court of Appeals for the Second
Circuit for treatment as a successive petition.
Dated:
New York, New York
September 28, 2018
______________________________
DENISE COTE
United States District Judge
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COPY MAILED TO:
Curtis Munford
Green Haven Correctional Facility
P.O. Box 4000
Stormville, NY 12582
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