Elliot v. Kirkpatrick
| Lawrence Elliot |
| Michael Kirkpatrick |
| 1:2017cv07529 |
| October 2, 2017 |
| US District Court for the Southern District of New York |
| Foley Square Office |
| Katherine Polk Failla |
| Kevin Nathaniel Fox |
| General |
| 28 U.S.C. ยง 2254 |
| None |
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Filing
66
ORDER: The Court is in receipt of Respondent's September 20, 2021 letter and enclosures regarding the findings of its investigation into the issues raised by Petitioner's August 27, 2021 submission. (Dkt. #65). Based on the Court's re view of Respondent's letter and enclosures, it appears that Petitioner received the Court's November 13, 2020 Opinion and Order (Dkt. #54), as well as the Court's subsequent Orders (Dkt. #59, 62, 64). Moreover, there is no indication t hat any delays in the Court's receipt of Petitioner's outgoing mail can be attributed to his facility rather, it appears that Petitioner's April 14, 2021 letter was initially forwarded to the Second Circuit, and that Petitioner subseq uently twice resubmitted the letter to the Second Circuit, only to send the letter to this Court for its consideration some months later. (See Dkt. #65). On this record, the Court does not find that any delays in its receipt of Petitioner's Apri l 14, 2021 letter and its enclosures provide a basis for granting the untimely relief sought in Plaintiff's application.Moreover, even were it not untimely, Plaintiff's application is without merit. Petitioner seeks a stay of the deadline f or any challenge to the Court'sNovember 13, 2020 Order pending the outcome of state-court proceedingsbrought under New York Criminal Procedure Law § 440.10. (See Dkt. #63).Prior to the Court's adjudication of his petition, Plaintiff so ught a stay of theseproceedings on this same basis (see Dkt. #16, 21), and in an order issued onMarch 30, 2018, Magistrate Judge Fox denied his application, finding thatPlaintiff was barred from bringing new claims under the statute of limitations,an d that the claims underlying his § 440.10 application did not relate back tothe initial petition (Dkt. #23). Plaintiff has provided the Court with no groundsfor reconsideration of Judge Foxs decision. While courts may grant a stay ofhabeas proce edings in "limited circumstances," Rhines v. Weber, 544 U.S. 269,277 (2005), those circumstances are not present in this case. See, e.g.,Martinez v. Mariuscello, No. 16 Civ. 7933 (RJS), 2017 WL 2735576, at *2-3(S.D.N.Y. June 23, 2017) (deny ing motion to stay habeas proceedings where"almost all of the claims [Petitioner] hopes to add to his habeas petition areplainly lacking in merit because they are time barred and do not relate back tothe claims asserted in Petitioners present pe tition"). The Court considers thismatter closed.The Clerk of Court is directed to mail a copy of this Order to Petitioner athis address of record.SO ORDERED. (Signed by Judge Katherine Polk Failla on 9/21/2021) (rro) Transmission to Docket Assistant Clerk for processing.
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Filing
56
CLERK'S JUDGMENT re: 54 Order Adopting Report and Recommendations. in favor of Michael Kirkpatrick against Lawrence Elliot. It is hereby ORDERED, ADJUDGED AND DECREED: That for the reasons stated in the Court's Opinion and Order dat ed November 13, 2020, The Court agrees with Judge Fox's well-reasoned Report and hereby adopts its reasoning in its entirety; Accordingly, the Petition is dismissed with prejudice; Since Petitioner has not made a substantial showing of the denia l of a constitutional right, a certificate of appealability will not issue; See 28 U.S.C. § 2253(c). Pursuant to 28 U.S.C. § 1915(a), any appeal from this Order would not be taken in good faith; therefore in forma pauperis status is denied for the purpose of any appeal, and this case is closed. (Signed by Clerk of Court Ruby Krajick on 11/23/2020) (Attachments: # 1 Notice of Right to Appeal) (dt) Transmission to Docket Assistant Clerk for processing.
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Filing
54
OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION for 46 Report and Recommendations. The Court agrees with Judge Fox's well-reasoned Report and hereby adopts its reasoning in its entirety. Accordingly, it is ordered that the Petition is D ISMISSED with prejudice. Since 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(c). Pursuant to 28 U.S.C. § 1915(a), any appeal from t his Order would not be taken in good faith; therefore in forma pauperis status is denied for the purpose of any appeal. Coppedge v. United States, 369 U.S. 438, 444-45 (1962). The Clerk of Court is directed to terminate all pending motions, adjourn a ll remaining dates, and close this case. The Clerk of Court is also directed to transmit a copy of this Opinion and Order to Petitioner at his address of record. (Signed by Judge Katherine Polk Failla on 11/13/2020) (rro) Transmission to Docket Assistant Clerk for processing.
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| Petitioner: Lawrence Elliot | |
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| Respondent: Michael Kirkpatrick | |
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