Reynolds v. Petrucci

Full title: BRIAN EDWARD REYNOLDS, Petitioner, v. WARDEN PETRUCCI, et al., Defendants.

Court: UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

Date published: Sep 21, 2020

20-CV-3523 (LLS) (S.D.N.Y. Sep. 21, 2020)

Opinion

20-CV-3523 (LLS)

09-21-2020

BRIAN EDWARD REYNOLDS, Petitioner, v. WARDEN PETRUCCI, et al., Defendants.

LOUIS L. STANTON, United States District Judge

ORDER :

Petitioner, proceeding pro se and in forma pauperis, is currently incarcerated at Otisville Correctional Facility. By order dated July 29, 2020, the Court directed Petitioner to file an amended pleading within sixty days, and denied without prejudice his request for appointment of pro bono counsel. Thereafter, Petitioner submitted letters seeking reconsideration of the order denying the motion for pro bono counsel, requesting an amended § 2241 petition form, and asking whether "social distancing is a law." (ECF 10-11.)

The motion for reconsideration is denied. Petitioner has not provided any reason for the Court to reconsider its order denying without prejudice his request for appointment of pro bono counsel.

Attached to this order is an amended § 2241 petition form. The Court grants Petitioner an extension of time to comply with the July 29, 2020 order, and directs him file an amended § 2241 petition within thirty days from the date of this order.

CONCLUSION

The motion is denied, and the Clerk of Court is directed to terminate it (ECF 10.)

An amended § 2241 petition form is attached to this order. The amended petition must be submitted to this Court's Pro Se Office within thirty days of the date of this order, be captioned as an "Amended Petition" and bear the same docket number as this order. Once submitted, the amended petition shall be reviewed for substantive sufficiency, and then, if proper, the case will be reassigned to a district judge in accordance with the procedures of the Clerk's Office. If Petitioner fails to comply with this order within the time allowed, and cannot show good cause to excuse such failure, the petition will be dismissed.

The Clerk of Court is directed to mail a copy of this order to Petitioner and note service on the docket. SO ORDERED. Dated: September 21, 2020

New York, New York

/s/_________

Louis L. Stanton

U.S.D.J.

PETITION FOR A WRIT OF HABEAS CORPUS UNDER 28 U.S.C. § 2241

Instructions

1. Who Should Use This Form. You should use this form if

• you are a federal prisoner and you wish to challenge the way your sentence is being carried out (for example, you claim that the Bureau of Prisons miscalculated your sentence or failed to properly award good time credits);
• you are in federal or state custody because of something other than a judgment of conviction (for example, you are in pretrial detention or are awaiting extradition); or
• you are alleging that you are illegally detained in immigration custody.

2. Who Should Not Use This Form. You should not use this form if

• you are challenging the validity of a federal judgment of conviction and sentence (these challenges are generally raised in a motion under 28 U .S.C. § 2255);
• you are challenging the validity of a state judgment of conviction and sentence (these challenges are generally raised in a petition under 28 U .S.C. § 2254); or
• you are challenging a final order of removal in an immigration case (these challenges are generally raised in a petition for review directly with a United States Court of Appeals).

3. Preparing the Petition. The petition must be typed or neatly written, and you must sign and date it under penalty of perjury. A false statement may lead to prosecution.

All questions must be answered clearly and concisely in the space on the form. If needed, you may attach additional pages or file a memorandum in support of the petition. If you attach additional pages, number the pages and identify which section of the petition is being continued. Note that some courts have page limitations. All filings must be submitted on paper sized 8½ by 11 inches. Do not use the back of any page.

4. Supporting Documents. In addition to your petition, you must send to the court a copy of the decisions you are challenging and a copy of any briefs or administrative remedy forms filed in your case. 5. Required Filing Fee. You must include the $5 filing fee required by 28 U.S.C. § 1914(a). If you are unable to pay the filing fee, you must ask the court for permission to proceed in forma pauperis - that is, as a person who cannot pay the filing fee - by submitting the documents that the court requires. 6. Submitting Documents to the Court. Mail your petition and 0 copies to the clerk of the United States District Court for the district and division in which you are confined. For a list of districts and divisions, see 28 U.S.C. §§ 81-131. All copies must be identical to the original. Copies may be legibly handwritten.

If you want a file-stamped copy of the petition, you must enclose an additional copy of the petition and ask the court to file-stamp it and return it to you.

7. Change of Address. You must immediately notify the court in writing of any change of address. If you do not, the court may dismiss your case. UNITED STATES DISTRICT COURT for the Southern District of NewYork

__________ Petitioner

v. __________ Respondent
(name of warden or authorized person having custody of petitioner) Case No. __________

(Supplied by Clerk of Court)

PETITION FOR A WRIT OF HABEAS CORPUS UNDER 28 U.S.C. § 2241

Personal Information

1. (a) Your full name: __________

(b) Other names you have used: __________

2. Place of confinement:

(a) Name of institution: __________
(b) Address: __________
(c) Your identification number: __________

3. Are you currently being held on orders by:

[ ] Federal authorities [ ] State authorities [ ] Other - explain:
__________

4. Are you currently:

[ ] A pretrial detainee (waiting for trial on criminal charges)
[ ] Serving a sentence (incarceration, parole, probation, etc.) after having been convicted of a crime

If you are currently serving a sentence, provide:

(a) Name and location of court that sentenced you: __________
(b) Docket number of criminal case: __________
(c) Date of sentencing: __________

[ ] Being held on an immigration charge
[ ] Other (explain): __________

Decision or Action You Are Challenging

5. What are you challenging in this petition:

[ ] How your sentence is being carried out, calculated, or credited by prison or parole authorities (for example, revocation or calculation of good time credits)
[ ] Pretrial detention
[ ] immigration detention
[ ] Detainer
[ ] The validity of your conviction or sentence as imposed (for example, sentence beyond the statutory maximum or improperly calculated under the sentencing guidelines)
[ ] Disciplinary proceedings
[ ] Other (explain): __________

6. Provide more information about the decision or action you are challenging:

(a) Name and location of the agency or court: __________
(b) Docket number, case number, or opinion number: __________
(c) Decision or action you are challenging (for disciplinary proceedings, specify the penalties imposed): __________
(d) Date of the decision or action: __________

Your Earlier Challenges of the Decision or Action

7. First appeal

Did you appeal the decision, file a grievance, or seek an administrative remedy?
[ ] Yes [ ] No
(a) If "Yes," provide:

(1) Name of the authority, agency, or court: __________
(2) Date of filing: __________
(3) Docket number, case number, or opinion number: __________
(4) Result: __________
(5) Date of result: __________
(6) issues raised: __________

(b) If you answered "No," explain why you did not appeal: __________

8. Second appeal

After the first appeal, did you file a second appeal to a higher authority, agency, or court?
[ ] Yes [ ] No
(a) If "Yes," provide:

(1) Name of the authority, agency, or court: __________
(2) Date of filing: __________
(3) Docket number, case number, or opinion number: __________
(4) Result: __________
(5) Date of result: __________
(6) Issues raised: __________

(b) If you answered "No," explain why you did not file a second appeal: __________

9. Third appeal

After the second appeal, did you file a third appeal to a higher authority, agency, or court?
[ ] Yes [ ] No
(a) If "Yes," provide:

(1) Name of the authority, agency, or court: __________
(2) Date of filing: __________
(3) Docket number, case number, or opinion number: __________
(4) Result: __________
(5) Date of result: __________
(6) Issues raised: __________

(b) If you answered "No," explain why you did not file a third appeal: __________

10. Motion under 28 U.S.C. § 2255

In this petition, are you challenging the validity of your conviction or sentence as imposed?
[ ] Yes [ ] No
If "Yes," answer the following:
(a) Have you already filed a motion under 28 U.S.C. § 2255 that challenged this conviction or sentence?

[ ] Yes [ ] No
If "Yes," provide:
(1) Name of court: __________
(2) Case number: __________
(3) Date of filing: __________
(4) Result: __________
(5) Date of result: __________
(6) Issues raised: __________

(b) Have you ever filed a motion in a United States Court of Appeals under 28 U.S.C. § 2244(b)(3)(A), seeking permission to file a second or successive Section 2255 motion to challenge this conviction or sentence?

[ ] Yes [ ] No
If "Yes," provide:
(1) Name of court: __________
(2) Case number: __________
(3) Date of filing: __________
(4) Result: __________
(5) Date of result: __________
(6) Issues raised: __________

(c) Explain why the remedy under 28 U.S.C. § 2255 is inadequate or ineffective to challenge your conviction or sentence: __________

11. Appeals of immigration proceedings

Does this case concern immigration proceedings?
[ ] Yes [ ] No

If "Yes," provide:

(a) Date you were taken into immigration custody: __________
(b) Date of the removal or reinstatement order: __________
(c) Did you file an appeal with the Board of Immigration Appeals?

[ ] Yes [ ] No
If "Yes," provide:
(1) Date of filing: __________
(2) Case number: __________
(3) Result: __________
(4) Date of result: __________
(5) Issues raised: __________

(d) Did you appeal the decision to the United States Court of Appeals?

[ ] Yes [ ] No
If "Yes," provide:
(1) Name of court: __________
(2) Date of filing: __________
(3) Case number: __________

(4) Result: __________
(5) Date of result: __________
(6) Issues raised: __________

12. Other appeals

Other than the appeals you listed above, have you filed any other petition, application, or motion about the issues raised in this petition?
[ ] Yes [ ] No
If "Yes," provide:
(a) Kind of petition, motion, or application: __________
(b) Name of the authority, agency, or court: __________
(c) Date of filing: __________
(d) Docket number, case number, or opinion number: __________
(e) Result: __________
(f) Date of result: __________
(g) Issues raised: __________

Grounds for Your Challenge in This Petition

13. State every ground (reason) that supports your claim that you are being held in violation of the Constitution, laws, or treaties of the United States. Attach additional pages if you have more than four grounds. State the facts supporting each ground.

GROUND ONE: __________

(a) Supporting facts (Be brief. Do not cite cases or law.):
__________
(b) Did you present Ground One in all appeals that were available to you?
[ ] Yes [ ] No

GROUND TWO: __________

(a) Supporting facts (Be brief. Do not cite cases or law.): __________
(b) Did you present Ground Two in all appeals that were available to you?
[ ] Yes [ ] No

GROUND THREE: __________

(a) Supporting facts (Be brief. Do not cite cases or law.): __________
(b) Did you present Ground Three in all appeals that were available to you?
[ ] Yes [ ] No

GROUND FOUR: __________

(a) Supporting facts (Be brief. Do not cite cases or law.): __________
(b) Did you present Ground Four in all appeals that were available to you?
[ ] Yes [ ] No

14. If there are any grounds that you did not present in all appeals that were available to you, explain why you did not: __________

Request for Relief

15. State exactly what you want the court to do: __________

Declaration Under Penalty Of Perjury

If you are incarcerated, on what date did you place this petition in the prison mail system:
__________

I declare under penalty of perjury that I am the petitioner, I have read this petition or had it read to me, and the information in this petition is true and correct. I understand that a false statement of a material fact may serve as the basis for prosecution for perjury. Date: __________

__________

Signature of Petitioner

__________

Signature of Attorney or other authorized person, if any