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Fredricks v. Renie

United States District Court, S.D. New York
Dec 8, 2021
21-CV-8586 (LTS) (S.D.N.Y. Dec. 8, 2021)

Opinion

21-CV-8586 (LTS)

12-08-2021

NIGEL FREDRICKS, Petitioner, v. WARDEN RENIE, G.R.V.C., Respondent.


ORDER

LAURA TAYLOR SWAIN, Chief United States District Judge

Petitioner Nigel Fredricks is proceeding pro se. On October 18, 2021, the Court received Petitioner's petition for a writ of habeas corpus under 28 U.S.C. § 2254. (ECF 1) By order dated October 20, 2021, the Court directed Petitioner to resubmit the signature page of the petition with an original signature, and to either pay the filing fee or complete and submit an application to proceed in forma pauperis (IFP). (ECF 2.) On November 22, 2021, the Court received from Petitioner a signed amended Section 2254 petition and an IFP application. (ECF 4, 5.)

Because the amended petition challenged the legality of Petitioner's pretrial detention rather than his custody pursuant to a state court judgment, by order dated December 6, 2021, the Court determined that the proper vehicle for Petitioner's challenge was a petitioner for a writ of habeas corpus under 28 U.S.C. § 2241. The Court therefore granted Petitioner 30 days' leave to file a second amended Section 2241 petition in order to identify all grounds on which he seeks relief and to plead facts showing that he has fully exhausted each of his claims. (ECF 6.) The Court's order further stated that if Petitioner fails to respond and does not file a second amended Section 2241 petition, the Court will dismiss the Section 2254 petition without prejudice because Petitioner is not seeking relief from a state court judgment.

On December 6, 2021, the Court received a letter form Petitioner (ECF 7), which is dated December 1, 2021, asking the Court to treat the original petition (ECF 1), rather than the amended petition (ECF 4), as the operative pleading in this action. Petitioner states that the amended petition was only intended to be a signature page in response to the Court's October 20, 2021 order.

The Court denies Petitioner's request. The original petition and the amended petition are substantively similar, and both pleadings suffer from the deficiencies identified in the Court's December 6, 2021 order to amend. The amended petition (ECF 4) will therefore remain the operative pleading at this stage.

In light of Petitioners pro se status, the Court grants Petitioner an extension of time to comply with the Court's December 6, 2021 order. For the reasons stated in the Court's December 6, 2021 order, if Petitioner wishes to proceed with a Section 2241 petition, he must, within 30 days of the date of this order, file a second amended Section 2241 petition in order to: (1) identify all of the grounds on which he seeks relief; and (2) plead facts showing that he has fully exhausted his claims by presenting the grounds for relief to the state courts. If Petitioner fails to respond and does not file a second amended Section 2241 petition, the Court will dismiss this Section 2254 petition without prejudice because Petitioner is not seeking relief from a state court judgment.

CONCLUSION

The Court denies Petitioner's request to treat the original petition, rather than the amended petition, as the operative pleading in this action. (ECF 7.)

If Petitioner wishes to proceed with a petition under 28 U.S.C. § 2241, he must file a second amended petition for a writ of habeas corpus under Section 2241 that: (1) identifies the grounds on which he seeks relief; and (2) pleads facts showing that he has fully exhausted his claims by presenting the grounds for relief to the state courts. The second amended petition for a writ of habeas corpus under Section 2241 must be submitted to the Court's Pro Se Intake unit within thirty days and bear the docket number 21-CV-3690 (LTS). For Petitioner's convenience, a second amended petition form is attached to this order. If Petitioner fails to respond and does not file an amended Section 2241 petition, the Court will dismiss this Section 2254 petition without prejudice because it does not seek relief from a state court judgment.

Because the petition at this time makes no 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 under 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. Cf. Coppedge v. United States, 369 U.S. 438, 444-45 (1962) (holding that an appellant demonstrates good faith when he seeks review of a nonfrivolous issue).

The Clerk of Court is directed mail a copy of this order to the Petitioner and note service on the docket.

SO ORDERED.

Instructions for Filing

Amended Petition for a Writ of Habeas Corpus under

28 U.S.C. § 2241

To Be Used by Prisoners

1. Who should use this form: You should use this form if you are in federal custody or subject to a custodial order of the United States and you wish to challenge the execution - not the validity - of your conviction or sentence (such as, for example, that the BOP miscalculated a sentence or failed to award good time credits properly). A Section 2241 habeas corpus petition may be appropriate in exceptional cases, where you can show that your remedy under 28 U.S.C. § 2255 is “inadequate or ineffective” and that serious constitutional questions may be raised absent collateral review. Section 2241 habeas corpus petitions must be filed in the district where you are confined.

If you are challenging your removal proceeding, immigration detention or other immigration related issues, you should use the form Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2241 (For Immigration Matters).

2. Who should not use this form: If you want to challenge the validity of a federal judgment of conviction and sentence, you should file a motion under 28 U.S.C. § 2255 in the federal court that entered that judgment. If you want to challenge the validity of a state judgment of conviction and sentence, you must first exhaust your state court remedies in the state appellate process and then file a petition for a writ of habeas corpus under 28 U.S.C. § 2254 in the federal district court where your state judgment of conviction was entered.

3. Caption: The caption is located in the top left corner on the first page of the petition. You, as the person filing the petition, are the “petitioner.” Generally, the Warden or Superintendent of the institution in which you are confined is the “respondent.” The respondent may also be the government official responsible for your confinement.

4. Signature: The petition must be signed with a pen.

5. Fee: In the U.S. District Court for the Southern District for New York, there is no filing fee for a habeas petition brought under 28 U.S.C. § 2241. See Standing Order M 10-468.

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Summaries of

Fredricks v. Renie

United States District Court, S.D. New York
Dec 8, 2021
21-CV-8586 (LTS) (S.D.N.Y. Dec. 8, 2021)
Case details for

Fredricks v. Renie

Case Details

Full title:NIGEL FREDRICKS, Petitioner, v. WARDEN RENIE, G.R.V.C., Respondent.

Court:United States District Court, S.D. New York

Date published: Dec 8, 2021

Citations

21-CV-8586 (LTS) (S.D.N.Y. Dec. 8, 2021)