Gutierrez v. LaManna
| Ramon Gutierrez |
| Jamie Lamanna |
| 9:2019cv00847 |
| July 16, 2019 |
| US District Court for the Northern District of New York |
| Andrew T Baxter |
| Gary L Sharpe |
| Habeas Corpus (General) |
| 28 U.S.C. § 2254 Petition for Writ of Habeas Corpus (State) |
| None |
Docket Report
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| Filing 17 TEXT ORDER: Petitioner's request for an extension of time to "make corrections and complete [the Court Ordered affidavit]," is GRANTED. Dkt. No. #14 . The Court's prior Decision and Order dated July 25, 2019, asked petitioner to update his address and explain why his petition was not moot. Dkt. No. 11 at 8-9 ("July Order"). Petitioner has recently submitted several documents, Dkt. Nos. 13, 14, and 15, which establish petitioner's current address and identify the location of his continued custody. However, the Court is willing to provide petitioner a further opportunity to correct and clarify his habeas claims and requests for relief. Petitioner's affidavit shall be due on or before September 30, 2019. If petitioner fails to timely file said affidavit, the Court will evaluate the jurisdictional issues previously identified in its July Order based upon the documents now before it. Authorized by US Magistrate Judge Andrew T. Baxter on 8/30/19. (nas, ) |
| Filing 16 MOTION for Leave to Proceed in forma pauperis filed by Ramon Gutierrez. (Attachments: #1 envelope) (nas, ) |
| Filing 15 AFFIDAVIT in support by Ramon Gutierrez. (nas, ) |
| Filing 14 Letter Motion from Ramon Gutierrez requesting an extension of time. (Attachments: #1 envelope)(nas, ) |
| Filing 13 NOTICE of Change of Address by Ramon Gutierrez Effective Date 8/8/19 New Address: Orange County Jail and submission in support of petition. (Attachments: #1 Exhibit(s), #2 envelope)(nas, ) |
| Docket No. 11 reserved on petitioner at Orange County Jail. (nas, ) |
| Filing 12 Mail Returned as Undeliverable; re: #11 Order. Sent to Gutierrez Address sent to Green Haven Correctional Facility. Envelope reads "return to sender- no longer here". (nas, ) |
Filing 11
DECISION AND ORDER: It is ORDERED that, within thirty (30) days of this Decision and Order, petitioner shall: (1) update his address with the court; and (2) file an affidavit, not to exceed fifteen (15) pages in length, detailing why his release has neither mooted the action nor deprived the court of jurisdiction. Petitioner is explicitly warned that, pursuant to Rule 10.1(c)(2) of the Local Rules of Practice of the Northern District, "All attorneys of record and pro se litigants must immediately notify the Court of any change of address," cases cannot proceed without litigants updating their addresses with the court, and, pursuant to Rule 41.2(b) of the Local Rules, "Failure to notify the Court of a change of address in accordance with L.R. 10.1(b) may result in the dismissal of any pending action." Accordingly, petitioner must provide the Clerk of the Court with his present address; and it is further ORDERED that, upon the filing by petitioner of the aforementioned documents, the Clerk is directed to return the file to the court for further review; and it is further ORDERED that, if petitioner does not file a notification of his present address and an affidavit addressing the specified jurisdictional issues within thirty (30) days of the filing date of this Decision and Order, the court will dismiss the petition without further order of the court for failure to prosecute and comply with the court's orders. Signed by Senior Judge Gary L. Sharpe on July 25, 2019. (Notice of Compliance Deadline 8/26/2019, Case Review Deadline 9/25/2019)(Copy served via regular mail)(rep)
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| Filing 10 Case transferred in from District of New York Southern; Case Number 1:19-cv-04387. electronically transferred when case opened |
| Mailed a copy of #9 Order, to Ramon Gutierrez 09-A-3702 Green Haven Correctional Facility P.O. Box 4000 Stormville, NY 12582-4000. (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 9
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 8
ORDER of USCA (Certified Copy) USCA Case Number 19-1465. 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 Motion for Second or Successive Petition for a Writ of Habeas Corpus)(nd) [Transferred from New York Southern on 7/16/2019.]
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| Received returned mail re: #7 Order Striking Document from Record. Mail was addressed to Ramon Gutierrez 09-A-3702 Green Haven Correctional Facility P.O. Box 4000 Stormville, NY 12582-4000 and was returned for the following reason(s): Return to Sender - No Longer Here. Return to Sender, Refused, Unable to Forward. (aea) [Transferred from New York Southern on 7/16/2019.] |
| Mailed a copy of #7 Order Striking Document from Record to Ramon Gutierrez 09-A-3702 Green Haven Correctional Facility P.O. Box 4000 Stormville, NY 12582-4000. (vba) [Transferred from New York Southern on 7/16/2019.] |
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Filing 7
ORDER: The Clerk of Court is directed to strike document number 6 from this case, as it was erroneously filed in this action. (Signed by Judge Colleen McMahon on 5/29/2019) (rdz) Transmission to Docket Assistant Clerk for processing. [Transferred from New York Southern on 7/16/2019.]
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| ***DELETED DOCUMENT. Deleted document number 6 TRANSFER ORDER. The document was incorrectly filed in this case. (rdz) [Transferred from New York Southern on 7/16/2019.] |
| NOTICE OF CASE REASSIGNMENT - SUA SPONTE to Judge Colleen McMahon. Judge Gregory H. Woods is no longer assigned to the case. (rjm) [Transferred from New York Southern on 7/16/2019.] |
| FILING ERROR - DUPLICATE DOCKET ENTRY & ENTERED IN WRONG CASE- Non-Appeal Record Sent to USCA (Electronic File). Certified Indexed record on Non-Appeal Electronic Files for 6 Order, were transmitted to the U.S. Court of Appeals. (tp) Modified on 5/29/2019 (nd). [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 #5 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.] |
| Mailed a copy of #5 Transfer Order U.S.C.A., to Ramon Gutierrez 09-A-3702 Green Haven Correctional Facility P.O. Box 4000 Stormville, NY 12582-4000. (vba) [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 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.3d119, 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. SO ORDERED. Sent original file along with documents numbered 1-5, certified copy of docket entries and transfer order. Mailed via Inter-Office Mail on 5/17/2019. (Signed by Judge Gregory H. Woods on 5/17/2019) (ama) 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 3 MEMORANDUM OF LAW in Support re: #2 Petition for Writ of Habeas Corpus. Document filed by Ramon Gutierrez. (rdz) [Transferred from New York Southern on 7/16/2019.] |
| Filing 2 PETITION FOR WRIT OF HABEAS CORPUS pursuant to 28 U.S.C. 2254. (Filing Fee $ 5.00, Receipt Number 465401235586)Document filed by Ramon Gutierrez.(rdz) [Transferred from New York Southern on 7/16/2019.] |
| Filing 1 CIVIL COVER SHEET filed. (rdz) [Transferred from New York Southern on 7/16/2019.] |
| Magistrate Judge Barbara C. Moses is so designated. Pursuant to 28 U.S.C. Section 636(c) and Fed. R. Civ. P. 73(b)(1) parties are notified that they may consent to proceed before a United States Magistrate Judge. Parties who wish to consent may access the necessary form at the following link: #http://nysd.uscourts.gov/forms.php. (rdz) [Transferred from New York Southern on 7/16/2019.] |
| Case Designated ECF. (rdz) [Transferred from New York Southern on 7/16/2019.] |
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| Respondent: Jamie Lamanna | |
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