Opinion
23-CV-9683 (LTS)
04-15-2024
CHEICHK FALL, Petitioner, v. M. KOPP, Respondent.
ORDER TO AMEND
LAURA TAYLOR SWAIN, CHIEF UNITED STATES DISTRICT JUDGE
Petitioner, currently incarcerated at Sing Sing Correctional Facility, brings this pro se petition for a writ of habeas corpus under 28 U.S.C. § 2254 challenging his June 6, 2019 conviction in the New York Supreme Court, New York County. The Court directs Petitioner to file an amended petition within sixty days of the date of this order as detailed below.
Petitioner originally filed this petition in the United States District Court for the Eastern District of New York. See Fall v. Kopp, No. 1:23-CV-7723 (PK) (E.D.N.Y. Oct. 20, 2023). By order dated October 20, 2023, the Eastern District transferred the action to this court. (ECF 3.) By order dated November 7, 2023, the Court directed Petitioner, within 30 days, to either pay the $5.00 filing fee or submit an application to proceed in forma pauperis (“IFP”). Petitioner did not pay the fee or submit an IFP application, and by order dated January 8, 2024, the Court dismissed the petition and entered judgment. (ECF 6, 7.) On January 29, 2024, the Court received from Petitioner a notice of appeal, which was entered on the docket on February 2, 2024. (ECF 8.) On January 31, 2024, the court's Finance Department processed Petitioner's check for the filing fee. By order dated February 2, 2024, the Court construed Petitioner's payment of the filing fee as including a motion for reconsideration of the Court's order of dismissal and civil judgment, granted the motion, and directed the Clerk of Court to vacate the order of dismissal and civil judgment and to reopen the action. (ECF 9.) Because Petitioner's motion for reconsideration was timely, the Court maintained jurisdiction to decide the motion and reopen the action. See Fed. R. App. P. 4(a)(4)(B)(i). Plaintiff's appeal of the now-vacated order and judgment is moot, and this Court therefore retains jurisdiction of this action. See Fort Knox Music Inc. v. Baptiste, 257 F.3d 110-11 (2d Cir. 2001) (stating that “[a] vacated judgment has no effect,” and an appeal from a vacated judgment is moot); see also Video Tutorial Servs., Inc. v. MCI Telecomms. Corp., 79 F.3d 3, 6 (2d Cir. 1996) (per curiam) (“When an appeal becomes moot, [the Court of Appeals] must dismiss it, since [the Court of Appeals has] no jurisdiction over moot controversies.”).
STANDARD OF REVIEW
The Court may entertain a petition for a writ of habeas corpus on “behalf of a person in custody pursuant to the judgment of a state court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). Under Rule 4 of the Rules Governing § 2254 Cases, the Court has the authority to review and dismiss a Section 2254 petition without ordering a responsive pleading from the state, “[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court.” Rules Governing § 2254 Cases, Rule 4; see Acosta v. Artuz, 221 F.3d 117, 123 (2d Cir. 2000). The Court is obliged, however, to construe pro se pleadings liberally and interpret them “to raise the strongest arguments they suggest.” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (internal quotation marks and citations omitted) (emphasis in original); see Green v. United States, 260 F.3d 78, 83 (2d Cir. 2001). Nevertheless, a pro se litigant is not exempt “from compliance with relevant rules of procedural and substantive law.” Triestman, 470 F.3d at 477 (quoting Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983)).
BACKGROUND
The following information is taken from the petition, and supplemented by the decision of the Supreme Court of the State of New York, Appellate Division, affirming Petitioner's conviction. In a judgment rendered June 6, 2019, in the Supreme Court of the State of New York, New York County, Petitioner pleaded guilty to manslaughter in the first degree and criminal possession of a weapon in the third degree. He was sentenced as a second felony offender to an aggregate term of 20 years' imprisonment. The Appellate Division, First Department, affirmed the conviction, People v. Fall, 205 A.D.3d 482 (1st Dep't May 20, 2022), and the Court of Appeals denied petitioner leave to appeal, 38 N.Y.3d 1133 (July 21, 2022). Petitioner did not file a petition for writ of certiorari with the United States Supreme Court. Petitioner has left blank the section of the petition form asking him to state his grounds for relief and the facts supporting those grounds. (See ECF 1, at 3.) Petitioner states that he delivered the petition to prison authorities to be mailed on September 27, 2023.
DISCUSSION
A. Rule 2 of the Rules Governing Section 2254 Cases
A state prisoner must submit a petition that conforms to the Rules Governing Section 2254 Cases. Rule 2(c) requires a petition to specify all of a petitioner's available grounds for relief, setting forth the facts supporting each of the specified grounds, and stating the relief requested. A petition must permit the Court and the respondent to comprehend both the petitioner's grounds for relief and the underlying facts and legal theory supporting each ground so that the issues presented in the petition may be adjudicated.
This petition does not conform to the requirements of Rule 2(c). Petitioner fails to specify his grounds for relief and the supporting facts. Mindful of the Court's duty to construe pro se actions liberally, see Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009), the Court has analyzed Petitioner's submission and finds that neither the Court nor a respondent could discern the constitutional basis for the petition.
B. Leave to Amend Petition
The Court grants Petitioner leave to submit an amended petition within 60 days of the date of this order. Should Petitioner decide to file an amended petition, he must state his grounds for relief and detail the steps he has taken to exhaust them fully in the New York courts. Petitioner must exhaust all available state court remedies in order to proceed with this Petition. See 28 U.S.C. § 2254(b)(1). Petitioner is advised that an amended petition completely replaces the original petition.
The Antiterrorism and Effective Death Penalty Act of 1996 requires that a federal habeas corpus petition must be filed within one year of the latest of four dates specified. See 28 U.S.C. § 2244(d)(1); see also Reyes v. Keane, 90 F.3d 676 (2d Cir. 1996).
CONCLUSION
Petitioner is directed to file an amended petition containing the information specified above. The amended petition must be submitted to the Clerk's Office within 60 days of the date of this order, be captioned as an “Amended Petition” and bear the same docket number as this order. An Amended Petition Under 28 U.S.C. § 2254 form is attached to this order, which Petitioner should complete as specified above. 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 denied.
Because Petitioner has not at this time made a substantial showing of a 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 IFP status is denied for the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
SO ORDERED.
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