Gutierrez v. Miller

Gutierrez v. Miller

Petitioner:	Oman Gutierrez
Respondent:	Christopher Miller
Case Number:	1:2017cv09570
Filed:	December 5, 2017
Court:	US District Court for the Southern District of New York
Office:	Foley Square Office
Presiding Judge:	Colleen McMahon
Nature of Suit:	General
Cause of Action:	28 U.S.C. § 2254
Jury Demanded By:	None

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Date Filed	Document Text
March 8, 2022	Filing 54 ORDER for 48 Report and Recommendations,,, For the reasons stated above, Judge Aaron's R & R is adopted in its entirety, and Gutierrez's petition (Dkt. No. 2), and his motions to amend and to stay (Dkt. Nos. 12, 16), are denied. Bec ause Gutierrez has not made a substantial showing of the denial of a constitutional right, no certificate of appealability will issue under 28 U.S.C. § 2253(c)(1)(A). This Court certifies under 28 U.S.C. § 1915(a)(3) that any appeal from th is 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 rev iew of a non-frivolous issue). The Clerk of Court is directed to mail a copy of this order to Petitioner and to close this case. SO ORDERED. (Signed by Judge Paul G. Gardephe on 3/8/2022) (ks) Transmission to Docket Assistant Clerk for processing.
March 16, 2018	Filing 15 OPINION AND ORDER: For the foregoing reasons, Petitioner's application to stay this proceeding is DENIED WITHOUT PREJUDICE. If Petitioner chooses to file a motion to amend, he shall do so no later than April 15, 2018, and shall concurrently file a motion to stay his Petition. Petitioner should be aware that this Court can grant a stay only if: (1) there is good cause for the Petitioner's failure to exhaust the unexhausted claims in state court before bringing a federal habeas petition; and (2) the unexhausted claims are not "plainly meritless." Rhines, 544 U.S. at 277. In his submission, Petitioner shall state when he discovered the factual basis for his new claims. If a motion to amend and stay is timely filed by Petiti oner, Respondent shall file any papers in opposition within two weeks of the date that Petitioner's motion is filed on ECF. The deadlines contained in the Order to Answer (ECF No. 9) shall be reset, as follows: No later than May 30, 2018, Respon dent shall file and serve (1) an answer to the Petition, and (2) the transcripts and briefs identified in Rule 5 of the Rules Governing Section 2254 Cases in the United States District Courts. Petitioner may file and serve reply papers, if any, withi n thirty days from the date he is served with Respondent's answer.The Clerk of Court is directed to mail a copy of this Order to the pro se Petitioner. SO ORDERED., Christopher Miller answer due 5/30/2018.( Motions due by 4/15/2018.) (Signed by Magistrate Judge Stewart D. Aaron on 3/16/2018) (ama)

Date Filed

Document Text

March 8, 2022

Filing 54 ORDER for 48 Report and Recommendations,,, For the reasons stated above, Judge Aaron's R & R is adopted in its entirety, and Gutierrez's petition (Dkt. No. 2), and his motions to amend and to stay (Dkt. Nos. 12, 16), are denied. Bec ause Gutierrez has not made a substantial showing of the denial of a constitutional right, no certificate of appealability will issue under 28 U.S.C. § 2253(c)(1)(A). This Court certifies under 28 U.S.C. § 1915(a)(3) that any appeal from th is 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 rev iew of a non-frivolous issue). The Clerk of Court is directed to mail a copy of this order to Petitioner and to close this case. SO ORDERED. (Signed by Judge Paul G. Gardephe on 3/8/2022) (ks) Transmission to Docket Assistant Clerk for processing.

March 16, 2018

Filing 15 OPINION AND ORDER: For the foregoing reasons, Petitioner's application to stay this proceeding is DENIED WITHOUT PREJUDICE. If Petitioner chooses to file a motion to amend, he shall do so no later than April 15, 2018, and shall concurrently file a motion to stay his Petition. Petitioner should be aware that this Court can grant a stay only if: (1) there is good cause for the Petitioner's failure to exhaust the unexhausted claims in state court before bringing a federal habeas petition; and (2) the unexhausted claims are not "plainly meritless." Rhines, 544 U.S. at 277. In his submission, Petitioner shall state when he discovered the factual basis for his new claims. If a motion to amend and stay is timely filed by Petiti oner, Respondent shall file any papers in opposition within two weeks of the date that Petitioner's motion is filed on ECF. The deadlines contained in the Order to Answer (ECF No. 9) shall be reset, as follows: No later than May 30, 2018, Respon dent shall file and serve (1) an answer to the Petition, and (2) the transcripts and briefs identified in Rule 5 of the Rules Governing Section 2254 Cases in the United States District Courts. Petitioner may file and serve reply papers, if any, withi n thirty days from the date he is served with Respondent's answer.The Clerk of Court is directed to mail a copy of this Order to the pro se Petitioner. SO ORDERED., Christopher Miller answer due 5/30/2018.( Motions due by 4/15/2018.) (Signed by Magistrate Judge Stewart D. Aaron on 3/16/2018) (ama)

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Petitioner: Oman Gutierrez
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Respondent: Christopher Miller
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