Summary
dismissing successive habeas petition that was clearly without merit
Summary of this case from Diaz v. ArtusOpinion
05 Civ. 5994 (DC).
July 19, 2005
MEMORANDUM DECISION
Petitioner filed this action pursuant to 28 U.S.C. § 2254, seeking to challenge a judgment of conviction that was previously attacked under § 2254. See Terrence v. Senkowski, No. 97 Civ. 3242 (DC), 1999 U.S. Dist. LEXIS 6916 (S.D.N.Y. May 12, 1999). In the previous habeas action, petitioner challenged his 1992 state court conviction on a number of grounds and the petition was denied on the merits. A certificate of appealability was not issued.
Petitioner now requests "permission to file a second habeas corpus motion" to challenge his sentence for the same conviction under the rule set forth in Apprendi v. New Jersey, 530 U.S. 466 (2000). The Court agrees with petitioner that the proposed petition would be successive — both petitions challenge the 1992 state conviction and the prior petition was dismissed with prejudice. See Thomas v. Woodbourne Corr. Facility, 136 F.3d 227 (2d Cir. 1997) (remanding to district court to determine whether prior petition was dismissed with prejudice and whether subsequent petition attacked same judgment for the purpose of determining whether subsequent petition was indeed successive).
In his petition, petitioner states that the date of the judgment of conviction was April 1, 1992. (Pet. ¶ 3). That is an error, as the judgment of conviction was actually entered August 18, 1992. See Terrence, 1999 U.S. Dist. LEXIS 6916, at *7;People v. Terrence, 612 N.Y.S.2d 571, 572 (1st Dep't 1994). The instant petition clearly is seeking to challenge the same conviction that was the subject of the prior petition.
A request for permission to file a successive petition must be made to the Second Circuit. 28 U.S.C. § 2244(b)(3) ("[T]he applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application."). The court of appeals may allow a second or successive petition "if it determines that the application makes a prima facie showing that the application satisfies the requirements of this subsection." 28 U.S.C. § 2244(b)(3)(C). The requirements are that:
[a] claim presented in a second or successive habeas corpus application under section 2254 that was not presented in a prior application shall be dismissed unless —
(A) the applicant shows that the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or
(B)(i) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and
(ii) the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.28 U.S.C. § 2244(b)(2).
In light of 28 U.S.C. § 2244(b)(3), this Court does not have jurisdiction to decide the merits of petitioner's claim unless the Second Circuit authorizes the Court to do so. The only issue here, therefore, is whether to dismiss the petition or transfer it to the Second Circuit pursuant to 28 U.S.C. § 1631. See 28 U.S.C. § 1631; Liriano v. United States, 95 F.3d 119, 123 (2d Cir. 1996) (per curiam) (when a second or successive petition for habeas corpus is filed in district court without authorization by the Second Circuit, district court should transfer petition to Second Circuit in the interest of justice pursuant to § 1631).
Having reviewed the petition in this case, the Court concludes that it is not in the interest of justice to transfer the case to the Second Circuit for three reasons. First, the law is clear that Apprendi does not apply retroactively in respect to second or successive habeas petitions and, therefore, petitioner's claim is without merit. See Forbes v. United States, 262 F.3d 143, 146 (2d Cir. 2001) (finding Apprendi not retroactive in the context of a second or successive § 2255 motion); Miranda v. Bennet, 352 F. Supp. 2d 381, 382 (E.D.N.Y. 2005) (applyingForbes in a case brought under § 2254); Coleman v. United States, 329 F.3d 77, 90 (2d Cir. 2003) (finding Apprendi not retroactive in the context of an initial § 2255 motion); McKenzie v. Poole, No. 03 Civ. 4253 (JG), 2004 U.S. Dist. LEXIS 23598, *29 (E.D.N.Y. Nov. 23, 2004) (citing circuit court decisions finding Apprendi not retroactive in respect to petitions under § 2254).
Second, this petition is untimely in any event. The petition was filed on June 28, 2005, well more than one year afterApprendi was decided in June 2000. See 28 U.S.C. § 2244(d)(1)(C) (setting one-year limitation period for applications for writ of habeas corpus, to run from date Supreme Court initially recognized constitutional right).
Third, there is no concern here that the one-year limitation period might run between the time that this Court dismisses the request and petitioner applies — if petitioner were to apply — to the Second Circuit. The limitation period has in fact already run. In contrast, in Liriano the petitioner apparently timely filed the application for a second or successive petition in the district court, and the Second Circuit found that transfer pursuant to § 1631 was in the interest of justice, explaining that in similar cases if the district court were to dismiss the application an issue could arise whether the petitioner could benefit from the date he filed the application in the district court in determining compliance with the limitation period. See 95 F.3d at 122-23. As explained above, there is no such issue here.
Accordingly, IT IS HEREBY ORDERED that the above-captioned petition is dismissed. I decline to transfer it to the Second Circuit pursuant to § 1631 because, after weighing the equities of dismissing the claim as opposed to transferring it, I find that a transfer would not be in the interest of justice. Because petitioner has not made a substantial showing of the denial of a constitutional right, I decline to issue a certificate of appealability. See 28 U.S.C. § 2253 (1996) (as amended by the Antiterrorism and Effective Death Penalty Act). I certify pursuant to 28 U.S.C. § 1915(a) (3) that any appeal taken from this decision and order would not be taken in good faith.
The Clerk of the Court shall close this case.
SO ORDERED.