Rivas v. Melecio
| Rudi Rivas |
| Phil Melecio |
| 2:2023cv05718 |
| July 26, 2023 |
| US District Court for the Eastern District of New York |
| Central Islip Office |
| Joan M Azrack |
| Habeas Corpus (General) |
| 28 U.S.C. ยง 2254 Petition for Writ of Habeas Corpus (State) |
| None |
Docket Report
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| Document Text |
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| Filing 8 MOTION for Reconsideration or in the alternative, MOTION for Certificate of Appealability by Rudi Rivas. (Attachments: #1 Letter/Certificate of Service/Mailing Envelope) (LC) |
| Filing 7 LETTER dated 9/1/2023 from Pro Se Office to Rudi Rivas re The Court is in receipt of your letter dated August 22, 2023, in which you inquire about the status of your action. In response to your inquiry, enclosed please find an updated copy of your docket, which includes all filings to date. (LC) |
| Filing 6 LETTER dated 8/22/2023 from Rudi Rivas to Clerk's Office re Request for status of habeas petition. (LC) |
Filing 5
ORDER: Upon review of the declaration accompanying Petitioner's application to proceed in forma pauperis, the Court finds that Petitioner's financial status qualifies him to commence this action without prepayment of the filing fees. See 28 U.S.C. 1915(a)(1). Accordingly, Petitioner's application to proceed in forma pauperis is GRANTED. However, because the instant Petition is successive within the meaning of Antiterrorism and Effective Death Penalty Act (AEDPA), this Court lacks jurisdiction. Torres v. Senkowski, 316 F.3d 147, 151 (2d Cir. 2003) (The AEDPA allocates jurisdiction to the courts of appeals, not the district courts, to authorize successive habeas motions or applications.) Accordingly, Petitioner must move for authorization to pursue this successive Petition for habeas relief in the United States Court of Appeals for the Second Circuit. See 28 U.S.C. 2244(b)(3)(A). Given that the Second Circuit has entered a leave-to-file sanction due to his prior pattern of vexatious filings, and has recently denied leave-to-file a similar successive petition (see Mandate, dated April 20, 2023, under District Court Docket No. 22-CV-3514), in the interests of justice, the Court declines to transfer this Petition to the United States Court of Appeals for the Second Circuit pursuant to 28 U.S.C. 1631. Rather, any applications shall be made by Petitioner in the first instance to the Second Circuit Court of Appeals and only in accordance with the Circuit Courts 2015 leave-to-file sanction. Given the dismissal of this Petition, the Clerk of the Court shall close this case and shall also mail a copy of this Order to the Petitioner at his address of record and note such service on the docket. SEE ATTACHED ORDER for details. So Ordered by Judge Joan M. Azrack on 8/21/2023. c/m (LC)
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| Civil Case Terminated. (LC) |
| Filing 4 Notice of Related Case: The Case was directly assigned as a related Pro Se/Habeas Case. (CL) |
| Filing 3 NOTICE OF DEFICIENT FILING, litigant notified of deficiency(s) that must be corrected within fourteen (14) days. (CL) |
| Filing 2 MOTION for Leave to Proceed in forma pauperis by Rudi Rivas. (CL) |
| Filing 1 PETITION for Writ of Habeas Corpus , filed by Rudi Rivas. (Attachments: #1 Letter/Certifcate of Service, #2 Civil Cover Sheet, #3 Exhibit, #4 Exhibit, #5 Exhibit, #6 Exhibit, #7 Exhibit, #8 Exhibit, #9 Exhibit, #10 Exhibit, #11 Exhibit, #12 Exhibit, #13 Exhibit, #14 Exhibit, #15 Exhibit, #16 Exhibit, #17 Exhibit) (CL) |
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| Petitioner: Rudi Rivas | |
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| Respondent: Phil Melecio | |
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