Opinion
09-CR-0166A
05-31-2017
WAYNE RICHARD APOTOSKY, 17235-055, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
DECISION AND ORDER
On November 14, 2016, Petitioner Wayne Apotosky filed a "Motion to Dismiss Information Pursuant to the Interstate Agreement on Detainers Act." Docket No. 72. Petitioner asserts that "the Government willfully violated [his] right[s]" under the anti-shuttling provisions of the Interstate Agreement on Detainers (IAD). The Court construed Petitioner's motion as a second-or-successive petition filed pursuant to 28 U.S.C. § 2255 and, accordingly, transferred the motion to the Second Circuit. See 28 U.S.C. § 2255(h); 28 U.S.C. § 1631. See also Docket No. 73 (Transfer Order).
The Court considers Petitioner's motion to have been filed on the date he signed the motion. See Johnson v. Coombe, 156 F.Supp.2d 273 (S.D.N.Y. 2001) ("Although it is not clear when the plaintiff gave his complaint to prison officials, absent evidence to the contrary, the Court assumes that [the prisoner] gave his petition to prison officials for mailing on the date he signed it.") (quotation marks and brackets omitted). --------
The Second Circuit has since transferred Petitioner's motion back to this Court, noting that this Court's "denial of Petitioner's first § 2255 motion did not render the adjudication of that motion final for purposes of the successive rules." Docket No. 74 (Mandate) at 2. Rather, the Second Circuit noted, Petitioner's first § 2255 petition was not "final" until the time expired for him to seek a writ of certiorari. (That time expired on December 6, 2016, see id. at 1, but the Court transferred Petitioner's IAD motion approximately two weeks earlier.) Petitioner's IAD motion is, then, not a second-or-successive § 2255 petition within the meaning of 28 U.S.C. § 2255(h). Id. at 2. However, as the Second Circuit did, the Court construes Petitioner's IAD motion as a second § 2255 petition. See id. at 1.
"[I]n general, when a § 2255 motion is filed before adjudication of an initial § 2255 motion is complete, the district court should construe the second § 2255 motion as a motion to amend the pending § 2255 motion." Ching v. United States, 298 F.3d 174, 177 (2d Cir. 2002).
Doing so here, it appears that Petitioner's second § 2255 motion must be dismissed as untimely. The Court dismissed Petitioner's first § 2255 petition as untimely under 28 U.S.C. § 2255(f). See Docket No. 66. Petitioner's second § 2255 petition, construed as a motion to amend his first § 2255 petition, cannot "relate[] back" to Petitioner's original § 2255 petition, Fed. R. Civ. P. 15(c), as "the 'relation back' doctrine is inapplicable when the initial habeas petition was dismissed." Warren v. Garvin, 219 F.3d 111, 114 (2d Cir. 2000). See also id. (noting that, in such a case, "there is no pleading to which to relate back"). But even if the Court found that Petitioner's second § 2255 petition related back to his first § 2255 petition, given that his first § 2255 petition was untimely, his second § 2255 petition would likewise be untimely under 28 U.S.C. § 2255(f). See Martinez v. United States, Nos. 10 Civ. 1398(NRB), 05 Cr. 773(NRB), 2012 WL 1155127, at *1 (S.D.N.Y. Apr. 4, 2012).
Nonetheless, given Petitioner's pro se status, the Court will allow Petitioner an opportunity to demonstrate why his IAD motion (which, as noted, the Court construes as a motion to amend his original § 2255 petition) should not be dismissed as untimely. Petitioner should file any response on or before June 30, 2017.
SO ORDERED.
Dated: May 31, 2017
Buffalo, New York
s/Richard J . Arcara
HONORABLE RICHARD J. ARCARA
UNITED STATES DISTRICT JUDGE