Gutierrez v. LaManna et al
| Ramon Gutierrez |
| Francis Russo, William Barr, Jamie Lamanna, Donald D. Vitiello and Kevin K. McAleenan |
| 9:2019cv00841 |
| July 16, 2019 |
| US District Court for the Northern District of New York |
| Andrew T Baxter |
| Glenn T Suddaby |
| Habeas Corpus (General) |
| 28 U.S.C. § 2254 Petition for Writ of Habeas Corpus (State) |
| None |
Docket Report
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This docket was last retrieved on August 14, 2019. A more recent docket listing may be available from PACER.
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| Petitioner's address modified to reflect Orange County Jail as noted in 19-847. Docket Nos. 7 and 8 reserved on petitioner. (nas, ) |
| Filing 9 MAIL RETURNED UNDELIVERABLE: The #8 Judgment and #7 Order that were sent to Ramon Gutierrez at Green Haven Correctional Facility were returned undeliverable. {Envelope marked: Return to Sender - No longer here, Return to Sender - Refused - Unable to forward}. (rep) |
| Filing 8 JUDGMENT that the petition, Dkt. No. #1 , is DISMISSED without prejudice as a duplicate of petitioner's pending petition in Gutierrez II, 9:19-CV-847. This action is now CLOSED pursuant to the Decision and Order issued by the Honorable Glenn T. Suddaby on July 19, 2019. See Dkt. No. #7 . (Copy served upon petitioner via regular mail) (sal ) |
Filing 7
DECISION AND ORDER that the petition, Dkt. No. #1 , is DISMISSED without prejudice as a duplicate of petitioner's petition in Guiterrez II, 9:19-CV-847. Signed by Chief Judge Glenn T. Suddaby on 7/19/2019. (Copy served upon petitioner via regular mail). (sal )
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| Filing 6 Case transferred in from District of New York Southern; Case Number 1:19-cv-04530. electronically transferred when case opened |
| Mailed a copy of #5 Order, to Ramon Gutierrez DIN No. 09A3702 Green Haven Correctional Facility 594 Rt. 216 Stormville, NY 12582-0010. (vba) [Transferred from New York Southern on 7/16/2019.] |
| CASE TRANSFERRED OUT ELECTRONICALLY from the U.S.D.C. Southern District of New York to the United States District Court - District of Northern District of New York (mro) [Transferred from New York Southern on 7/16/2019.] |
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Filing 5
TRANSFER ORDER: The Clerk of Court is directed to mail a copy of this order to Petitioner, docket the order in both actions, and note service on both dockets. The Clerk of Court is further directed to transfer these actions to the United States District Court for the Northern District of New York. Whether Petitioner should be permitted to proceed further without payment of fees is a determination to be made by the transferee court. This order closes this case. Because Petitioner has not at this time made a substantial showing of the denial of a constitutional right, a certificate of appealability will not issue under 28 U.S.C. 2253. The Court certifies under 28 U.S.C. 1915(a)(3) 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. Cf. Coppedge v. United States, 369 U.S. 438, 444-45 (1962) (holding that an appellant demonstrates good faith when he seeks review of a nonfrivolous issue). The Clerk of Court is directed to docket this as a "written opinion" within the meaning of Section 205(a)(5) of the E-Government Act of 2002. (Signed by Judge Colleen McMahon on 7/9/2019) (mro) Transmission to Docket Assistant Clerk for processing. Transmission to Office of the Clerk of Court for processing. [Transferred from New York Southern on 7/16/2019.]
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Filing 4
ORDER of USCA (Certified Copy) USCA Case Number 19-1589. Catherine O'Hagan Wolfe, Clerk USCA for the Second Circuit. Certified: 07/01/2019. Petitioner moves for leave to file a successive 28 U.S.C. 2254 petition. Upon due consideration, it is hereby ORDERED that the motion is DENIED as unnecessary because Petitioner's proposed 2254 petition would not be successive. A 2254 petition is successive if a prior 2254 petition challenged the same criminal judgment, was decided on the merits, and reached final adjudication before the filing of the present motion. See Garcia v. Superintendent of Great Meadow Corr. Facility, 841 F.3d 581, 583 (2d Cir. 2016) (per curiam); Whab v. United States, 408 F.3d 116, 11819 (2d Cir. 2005). In Magwood v. Patterson, the Supreme Court held that "where... there is a new judgment intervening between the two habeas petitions,... an application challenging the resulting new judgment is not 'second or successive' at all." 561 U.S. 320, 34142 (2010) (internal citation omitted). Here, Petitioner challenges his custody pursuant to an amended judgment issued in May 2019, after the filing of his first 2254 petition. Accordingly, his proposed 2254 petition is not successive and he does not need this Court's authorization to file it in the district court. It is further ORDERED that both proceedings are TRANSFERRED to the district court. Whab, 408 F.3d at 119; see also 28 U.S.C. 1631 (permitting transfer of an action to an appropriate venue in the interest of justice"). Catherine O'Hagan Wolfe, Clerk USCA for the Second Circuit. Certified: 07/01/2019. (Attachments: #1 successive 28 U.S.C. 2254 petition)(nd) [Transferred from New York Southern on 7/16/2019.]
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| Received returned mail re: #3 Transfer Order U.S.C.A. Mail was addressed to Ramon Gutierrez DIN No. 09A3702 Green Haven Correctional Facility 594 Rt. 216 Stormville, NY 12582-0010 and was returned for the following reason(s): Return to Sender; Refused; Unable to Forward: Return to Sender - No Longer Here. (aea) [Transferred from New York Southern on 7/16/2019.] |
| NOTICE OF CASE ASSIGNMENT - SUA SPONTE to Judge Colleen McMahon. Judge Unassigned is no longer assigned to the case. (rdz) [Transferred from New York Southern on 7/16/2019.] |
| Mailed a copy of #3 Transfer Order U.S.C.A., to Ramon Gutierrez DIN No. 09A3702 Green Haven Correctional Facility 594 Rt. 216 Stormville, NY 12582-0010 (aea) [Transferred from New York Southern on 7/16/2019.] |
| Non-Appeal Record Sent to USCA (Electronic File). Certified Indexed record on Non-Appeal Electronic Files for #3 Transfer Order U.S.C.A., were transmitted to the U.S. Court of Appeals. (tp) [Transferred from New York Southern on 7/16/2019.] |
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Filing 3
TRANSFER ORDER: The Clerk of Court is directed to assign this action to my docket, mail a copy of this order to Petitioner, and note service on the docket. In the interest of justice, the petition is transferred to the United States Court of Appeals for the Second Circuit. See 28 U.S.C. 1631; see also Liriano v. United States, 95 F.3d 119, 122-23 (2d Cir. 1996) (per curiam). This order closes this case. If the Court of Appeals authorizes Petitioner to proceed in this matter, he shall move to reopen this case under this civil docket number. Because Petitioner has not made a substantial showing of the denial of a constitutional right, a certificate of appealability will not issue. See 28 U.S.C. 2253. The Court certifies, pursuant to 28 U.S.C. 1915(a)(3), 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. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). The Clerk of Court is directed to docket this as a "written opinion" within the meaning of Section 205(a)(5) of the E-Government Act of 2002. (Signed by Judge Colleen McMahon on 5/28/2019) (rdz) Transmission to Appeals Clerk. Transmission to Docket Assistant Clerk for processing. [Transferred from New York Southern on 7/16/2019.]
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| Filing 2 MEMORANDUM OF LAW in Support re: #1 Petition for Writ of Habeas Corpus. Document filed by Ramon Gutierrez. (sac) [Transferred from New York Southern on 7/16/2019.] |
| Filing 1 PETITION FOR WRIT OF HABEAS CORPUS pursuant to 28 U.S.C. 2254. Document filed by Ramon Gutierrez. (sac) [Transferred from New York Southern on 7/16/2019.] |
| Case Designated ECF. (sac) [Transferred from New York Southern on 7/16/2019.] |
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