Opinion
01-CV-0026A.
February 20, 2004
DECISION AND ORDER
Petitioner Frank Minigan, acting pro se, an inmate of the Wende Correctional Facility Correctional Facility at the time of the filing of this action, seeks relief pursuant to 28 U.S.C. § 2254, alleging that his conviction in Supreme Court, County of Monroe, State of New York, was unconstitutionally obtained, as set forth more precisely in the petition. On January 29, 2004, the United States Court of Appeals for the Second Circuit issued an Order denying as unnecessary petitioner's application for permission to file a second or successive petition, pursuant to 28 U.S.C. § 2244(b), because the prior petition was incorrectly found to be untimely. Minigan v. Donnelly, No. 01-3519 (2d Cir. Jan. 29, 2004). Accordingly, the Court of Appeals transferred this matter back to this Court for further proceedings. Id.
Petitioner is reminded of his obligation to notify this Court in writing of any changes in his address, and that his failure to do so could result in the dismissal of his petition with prejudice. See Rule 5.2(d) of the Local Rules of Civil Procedure for the United States District Court Western District of New York.
This Court (Hon. John T. Elfvin) had initially transferred this petition to the Second Circuit Court of Appeals, pursuant to 28 U.S.C. § 2244(b), on the ground that it was a second or successive petition.
Petitioner seeks permission to proceed as a poor person pursuant to 28 U.S.C. § 1915(a)(1).
IT HEREBY IS ORDERED as follows:
1. Permission to proceed as a poor person is granted.
2. Pursuant to Rules 4 and 5 of the Rules Governing Section 2254 Cases in the United States District Courts, respondent shall file an answer to the petition with the Clerk of Court (and also serve a copy upon petitioner) no later than April 5, 2004. The answer shall respond to the allegations of the petition and shall state, as to every ground raised by petitioner, whether petitioner has exhausted state remedies, including any available post-conviction remedies. If any ground is alleged not to have been exhausted, respondent shall identify such ground and expressly state whether it waives petitioner's requirement to exhaust. Further, the answer shall state whether a trial or any pre-trial or post-trial evidentiary proceeding was conducted. If any such proceeding was conducted, under the authority of Rule 4, the Court hereby directs respondent to provide to the Court the transcript of the proceeding, together with any record(s) of such proceeding, and such documents will be filed in the official record of this case.
Respondent also shall file by the above date a memorandum of law with the Clerk of Court (and also serve a copy upon petitioner) addressing each of the issues raised in the petition and including citations of relevant supporting authority.
Within thirty (30) days of the date this order is served upon the custodian of the records, the Court Clerk or any other official having custody of the records of the proceedings in Court at issue now before this Court shall submit such records to respondent or the respondent's duly authorized representative.
If petitioner appealed from the judgment of conviction or from an adverse judgment or order in a post-conviction proceeding, under the authority of Rule 4, the Court hereby directs respondent to provide to the Court a copy of the briefs on appeal and the opinions of the appellate courts, if any, and such documents will be filed in the official record of this case.
Petitioner shall have thirty (30) days upon receipt of the answer to file a written response to the answer and memorandum of law.
Within thirty (30) days of the date this order is filed with the Clerk of Court, respondent may file a motion for a more definite statement or a motion to dismiss the petition, accompanied by appropriate exhibits which demonstrate that an answer to the petition is unnecessary. The timely filing of such motion shall extend the time for filing an answer for fourteen (14) days, but the failure of the Court to act upon the motion within that time shall not further extend the time for filing an answer.
3. The Clerk of Court shall serve a copy of the petition, together with a copy of this order, by certified mail, upon respondent Superintendent of Wende Correctional Facility Correctional Facility and upon the Assistant Attorney General in Charge, Statler Towers, 4th Floor, 107 Delaware Avenue, Buffalo, New York 14202. To advise appropriate County officials of the pendency of this proceeding, the Clerk of Court shall also mail a copy of this order to the District Attorney of Monroe County.
PETITIONER MUST FORWARD A COPY OF ALL FUTURE PAPERS AND CORRESPONDENCE TO THE ATTORNEY APPEARING FOR RESPONDENT.
IT IS SO ORDERED.