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Gary H. Moore v. Fourth Department; New York State Court of Appeals; New York State

February 17, 2011

GARY H. MOORE, PETITIONER,
v.
FOURTH DEPARTMENT; NEW YORK STATE COURT OF APPEALS; NEW YORK STATE ATTORNEY GENERAL OFFICE; NASSAU COUNTY DISTRICT ATTORNEY OFFICE; CHAUTAUQUA COUNTY ATTORNEY OFFICE; JUDGE JAMES H. DILLON OF CHAUTAUQUA COUNTY; AND THE SUPERINTENDENT OF SOUTHPORT CORRECTIONAL FACILITY, RESPONDENTS. GARY H. MOORE, PETITIONER,
v.
JUDGE JAMES H. DILLON OF CHAUTAUQUA COUNTY, SUPREME COURT OF NEW YORK, RESPONDENT.



11-CV-0204 (KAM) JUDGE JAMES H. DILLON of Chautauqua County,

The opinion of the court was delivered by: Matsumoto, United States District Judge

MEMORANDUM AND ORDER

Petitioner Gary H. Moore ("petitioner" or "Moore"), currently incarcerated at Southport Correctional Facility, brings two petitions challenging state court proceedings in Chautauqua County before this court. (See Docket No. 10-CV-05952, ECF No. 1, Pet. dated Dec. 20, 2010 & ECF No. 2, Aff. of Moore attaching Exs. A-H (collectively "12/20/10 Pet."); Docket No. 11-CV-00204, ECF No. 1, Pet. dated Jan. 10, 2011 & ECF No. 4, Letter from Moore attaching Ex. D (collectively "1/10/11 Pet.")). The first petition is styled as a petition for a writ of habeas corpus under 28 U.S.C. § 2254; the second petition seeks a writ of mandamus. For the reasons stated below, this court has no jurisdiction to grant the requested relief, and both petitions are accordingly dismissed.

BACKGROUND

I.Petitioner's Conviction and Filings in State and Federal Courts

Petitioner was convicted in Nassau County on July 28, 1995 of burglary in the second degree, and was sentenced to an indeterminate term of 15 years to life imprisonment. People ex rel. Moorev. Connolly, 56 A.D.3d 847, 847-48, 867 N.Y.S.2d 735, 735-36 (3d Dep't 2008). Petitioner has filed multiple appeals and petitions challenging that conviction in state court. See, e.g., People v. Moore, 248 A.D.2d 405, 405-06, 669 N.Y.S.2d 638, 638-39 (2d Dep't 1998) (affirming conviction), further appeal denied, 698 N.E.2d 967, 91 N.Y.2d 1010, 676 N.Y.S.2d 138 (1998); People v. Moore, 38 A.D.3d 683, 683, 830 N.Y.S.2d 665, 666 (2d Dep't 2007) (error coram nobis denied); People ex rel. Moore, 56 A.D.3d at 847, 867 N.Y.S.2d at 735 (affirming New York Supreme Court, Clinton County's denial of petition for writ of habeas corpus brought pursuant to C.P.L.R. Article 70), leave to appeal denied, 12 N.Y.3d 701, 876 N.Y.S.2d 348, 904 N.E.2d 503 (2009); (see also 12/20/10 Pet., Ex. C, Affirmation in Opp. to Pet. ¶¶ 3-16 (affirming that petitioner filed six New York Criminal Procedure Law section 440 motions in New York Supreme Court, Nassau County, and filed for a writ of habeas corpus in the New York Supreme Court, Clinton County).) On May 25, 2010, petitioner filed a petition for a writ of habeas corpus with the New York Supreme Court, Chautauqua County. (12/20/10 Pet., Ex. A at 7.) This May 25, 2010 petition will be discussed more fully below.

Petitioner has also filed multiple petitions pursuant to 28 U.S.C. § 2254 in the United States District Court for the Eastern District of New York. See Moore v. Miller, No. 99- CV-6722 (NG), slip op. (E.D.N.Y. Aug. 15, 2000) (petition denied), appeal dismissed, Mandate, No. 00-2533 (2d Cir. Nov. 29, 2000); Moore v. Domelli, No. 05-CV-5325 (NG), slip op. (E.D.N.Y. Jan. 18, 2006) (transferring petitioner's habeas application to the Second Circuit as second or successive), certification of successive petition denied, Mandate, No. 06-0322 (2d Cir. Sept. 26, 2006); Moore v. Vann, No. 06-CV-5592 (NG), slip op. (E.D.N.Y. Nov. 16, 2006) (transferring petitioner's habeas application to the Second Circuit as second or successive); Moore v. Vann, No. 07-CV-3896 (NG) (E.D.N.Y. Sept. 25, 2007) (transferring petitioner's habeas application to the Second Circuit as second or successive), certification of successive petition denied, Mandate, No. 07-4132 (2d Cir. Jan. 23, 2008).

II.The Instant Petitions

Petitioner currently has two petitions pending before this court, both of which ask this court to intervene in a recent state court action. The first petition, filed December 20, 2010 (the "December 20, 2010 Petition"), is styled as a petition for a writ of habeas corpus under 28 U.S.C. § 2254 and alleges that the New York Supreme Court, Appellate Division, Fourth Department ("Fourth Department") has failed to take "any action" on his New York State Court writ of habeas corpus appeal. (12/20/10 Pet. at 2.) The second petition, filed January 10, 2011 (the "January 10, 2011 Petition"), seeks a writ of mandamus vacating the Chautauqua County court's denial of his New York state court writ of habeas corpus petition. (1/10/11 Pet. at 1-2, 5.)

The facts underlying these petitions are as follows. Petitioner filed a writ of habeas corpus on May 25, 2010 in the New York Supreme Court, Chautauqua County. (12/20/10 Pet., Ex. A at 7.) After a hearing on June 21, 2010, Justice James H. Dillon issued a written decision on June 28, 2010, denying the petition on the ground that it was barred by res judicata and collateral estoppel. (12/20/10 Pet. at 2 & Ex. A at 7; 1/10/11 Pet. at 2.) Petitioner argues that he was denied his right to due process because the written decision did not state any findings of fact or legal reasoning. (12/20/10 Pet. at 2-3; 1/10/11 Pet. at 2-3.) Petitioner attempted to appeal this decision by mailing an appeal to the Fourth Department. (12/20/10 Pet. at 5.) The Fourth Department notified petitioner, by letters dated July 12, 2010, September 17, 2010, and October 5, 2010, that no notice of appeal was filed in the Chautauqua County Clerk's Office. (12/20/10 Pet., Ex. D at 19-22.) Petitioner asserts that the Fourth Department's failure to take action on his appeal operates as a denial of his rights under the First and Fourteenth Amendments. (12/20/10 Pet. at 2; 1/10/11 Pet. at 2.) In order to remedy this violation, the December 20, 2010 Petition asks this court to grant a writ of habeas corpus and order petitioner's immediate release from prison. (12/20/10 Pet. at 2.) The January 10, 2010 petition for a writ of mandamus asks this court to order Justice Dillon to vacate his June 28, 2010 order, grant petitioner's state court habeas petition and either release petitioner from prison or show cause for not doing so. (1/10/11 Pet. at 1-2, 5.)

DISCUSSION

This court has no jurisdiction over petitioner's claims and cannot grant the relief he seeks through either a petition pursuant to 28 U.S.C. § 2254 or a petition for a writ of mandamus.

I.December 20, 2010 Petition

The December 20, 2010 Petition is styled as a petition pursuant to 28 U.S.C. § 2254. An individual in state custody pursuant to the judgment of a state court may challenge the constitutionality of his conviction or sentence through an application in federal court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254(a), subject to significant procedural requirements, including time limitations, exhaustion of state remedies, and restrictions on ...


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