Holmes v. Cunningham
| David Holmes |
| Superintendent Robert Cunningham |
| 1:2013cv00550 |
| January 27, 2013 |
| US District Court for the Eastern District of New York |
| Brooklyn Office |
| Carol Bagley Amon |
| Habeas Corpus (General) |
| 28 U.S.C. ยง 2254 Petition for Writ of Habeas Corpus (State) |
| None |
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Filing
20
MEMORANDUM AND ORDER: Accordingly, the Court dismisses Holmes's petition for a writ of habeas corpus as untimely. Since Holmes has failed to make a "substantial showing of the denial of a constitutional right," a Certificate of Appealability shall not issue. 28 U.S.C. § 2253(c). The Clerk of the Court is directed to enter judgment and to close the case. Ordered by Chief Judge Carol Bagley Amon on 7/29/2014. c/m to pro se Pltf (fwd for judgment) (Fernandez, Erica)
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Filing
10
MEMORANDUM & ORDER: In a 8 submission dated 3/11/2013, Holmes moved the Court to reconsider its dismissal of his petition for lack of jurisdiction pursuant to Rule 60(b) of the Federal Rules of Civil Procedure. Based on the information that Holm es has provided in his recent submissions (DE # 8 , # 9 ), the Court vacates its 3/16/2013 Order 6 dismissing Holmes's petition for a writ of habeas corpus for lack of jurisdiction and directs the Clerk of Court to vacate [7 ] judgment. The Court further orders that the Attorney General of the state of New York, or the District Attorney of Queens County, as attorney for the respondent, shall show cause before this Court by the filing of a return to this petition, w hy a writ of habeas corpus should not be issued. Within 60 days of this Order, respondent shall serve a copy of the return, consisting of necessary affidavits and briefs, on Holmes and file the original with proof of service with Clerk of Court. Respondent shall submit the transcript and record of the trial and any hearings to this Court at the time of filing such return. Holmes, within 30 days of receipt by him of a copy of respondent's return shall file his reply, if any, with the Clerk of Court. SO ORDERED by Chief Judge Carol Bagley Amon, on 4/4/2013. C/mailed to pro se Petitioner. Electronic Service upon Respondents, re: 1 Petition for Writ of Habeas Corpus. (Latka-Mucha, Wieslawa)
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Filing
6
MEMORANDUM & ORDER: Accordingly, because Holmes fails to satisfy the "in custody" requirement, the Court dismisses Holmes's petition for a writ of habeas corpus for lack of jurisdiction. Since Holmes has failed to make a &quo t;substantial showing of the denial of a constitutional right," a Certificate of Appealability shall not issue. To the extent that Holmes seeks to challenge his current sentence on the basis that it was improperly enhanced by an allegedly inv alid prior conviction, he should file a new petition in the Southern District of New York. The Court certifies that any appeal from this order would not be taken in good faith and therefore in forma pauperis status is denied for the purpose of an appeal. SO ORDERED by Chief Judge Carol Bagley Amon, on 3/6/2013. C/mailed to pro se Petitioner. (Forwarded for Judgment.) (Latka-Mucha, Wieslawa)
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| Petitioner: David Holmes | |
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| Respondent: Superintendent Robert Cunningham | |
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