Opinion
22 Civ. 4519 (KPF)
06-10-2022
EDWARD GREEMAN, Petitioner, v. STATE OF NEW YORK, Respondent.
ORDER
KATHERINE POLK FAILLA, DISTRICT JUDGE:
On May 25, 2022, Petitioner Edward Greeman filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254, seeking to challenge his January 23, 2020, New York County judgment of conviction, in which a jury found him guilty of criminal possession of a forged instrument in the second degree (15 counts), criminal tampering in the first degree (9 counts), and criminal impersonation in the second degree (“Greeman I”). (See 22 Civ. 4300, Dkt. #2).
By Order dated June 1, 2022, the Court dismissed the State of New York from Greeman I and substituted the Superintendent of Fishkill Correctional Facility as Respondent pursuant to Rule 21 of the Federal Rules of Civil Procedure. (Dkt. #5). See Fed.R.Civ.P. 21; see also Rule 2(a) of the Rules Governing Section 2254 Cases in the United States District Courts (providing that the only proper respondent in a habeas corpus petition is the warden, custodian, or superintendent of the facility where petitioner is in custody). The Order also directed: (i) the Clerk of Court to serve a copy of the order and petition on the Attorney General of the State of New York and the District Attorney for New York County; (ii) the Attorney General of the State of New York to answer within 60 days from the date of the order; and (iii) Petitioner to file any reply within 30 days thereafter. (Id.)
On June 1, 2022, Petitioner filed a second petition for a writ of habeas corpus under 28 U.S.C. § 2254, challenging the same conviction as in Greeman I. The Clerk of Court opened this petition as a new civil action under docket number 22 Civ. 4519 (“Greeman II”). (See 22 Civ. 4519, Dkt. #2). Greeman II is not considered to be second or successive under 28 U.S.C. § 2244(b)(3)(A), because Greeman I is pending. See Littlejohn v. Artuz, 271 F.3d 360, 363 (2d Cir. 2001) (per curiam). Instead, Greeman II may be treated as an amended or supplemental petition in the Greeman I action. See Littlejohn, 271 F.3d at 363; see also § 2242 (a habeas corpus petition “may be amended or supplemented as provided in the rules of procedure applicable to civil actions”). Because the two petitions are substantially similar, the Court construes the petition in Greeman II as supplemental to the petition in Greeman I.
CONCLUSION
For the foregoing reasons, the Clerk of Court is directed to: (i) administratively close the action under docket number 22 Civ. 4519; (ii) file the Section 2254 petition, which is currently docketed as docket entry 2 in the action under docket number 22 Civ. 4519, as a supplemental petition in the action under docket number 22 Civ. 4300; and (iii) file a copy of this order in the action under docket number 22 Civ. 4300.
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 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 review of a nonfrivolous issue).
SO ORDERED.