Opinion
No. 04 Civ. 7152 (LAP) (AJP).
October 19, 2004
OPINION AND ORDER
Petitioner Michael Groark, represented by counsel, seeks habeas corpus relief from his conviction in County Court, Nassau County, of first degree robbery. (Dkt. No. 1: Pet. ¶¶ 1-4.) Apparently, because petitioner Groark is incarcerated at Green Haven Correctional Facility, which is in the Southern District of New York, his counsel filed the habeas petition in this Court.
The practice, however, supported by the Local Rules, is for habeas petitions from New York convictions to be heard (by original filing or transfer) in the District where the trial occurred. S.D.N.Y./E.D.N.Y. Local Civil Rule 83.3 ("[A]pplications for a writ of habeas corpus made by persons under the judgment and sentence of a court of the State of New York shall be filed, heard and determined in the district court for the district within which they were convicted and sentenced . . . The clerks of the Southern and Eastern District Courts are authorized and directed to transfer such applications to the District herein designated for filing, hearing and determination."); accord N.D.N.Y. Local Rule 72.4(b); see, e.g., Lerner v.Scully, 87 Civ. 8026, 1988 WL 24331 at *1 (S.D.N.Y. Mar. 8, 1988) (transferring habeas petition from Southern to Eastern District of New York because petitioner was convicted and sentenced in N.Y. Sup. Ct., Nassau Co.); see also, e.g., Rosario v. United States, 02 Civ. 3360, 2004 WL 439386 at *2-3 (S.D.N.Y. Mar. 9, 2004) (holding that S.D.N.Y., to which district habeas petition had been transferred and where petitioner had pleaded guilty and had been sentenced, was proper venue to hear petitioner's § 2241 habeas claim, although petitioner was incarcerated in the Eastern District).
Accordingly, since Groark's petition arises from his conviction in County Court, Nassau County, his habeas petition should be transferred to the United States District Court for the Eastern District of New York. The Clerk of Court is to wait ten business days and then transfer the action, unless petitioner's counsel files objections to this Order within that time period.
FILING OF OBJECTIONS TO THIS OPINION AND ORDER
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Opinion to file written objections. See also Fed.R.Civ.P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Loretta A. Preska, 500 Pearl Street, Room 1320, and to my chambers, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Preska. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466 (1985); IUE AFL-CIO Pension Fund v.Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993), cert. denied, 513 U.S. 822, 115 S.Ct. 86 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.),cert. denied, 506 U.S. 1038, 113 S.Ct. 825 (1992); Small v.Secretary of Health Human Servs., 892 F.2d 15, 16 (2d Cir. 1989); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).