UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK
April 15, 2011
RONALD MACK, PRO SE, PETITIONER
WILLIAM LEE, SUPERINTENDENT,
GREEN HAVEN CORRECTIONAL FACILITY, RESPONDENT.
The opinion of the court was delivered by: Dora L. Irizarry, U.S. District Judge:
On October 15, 1998, petitioner sought a writ of habeas corpus under 28 U.S.C. § 2254, challenging his New York State Supreme Court, Queens County, convictions, all rendered May 3, 1995, on five counts of robbery in the first degree under Indictment Nos. 5370/93, 257/94 (two counts), and 258/94 (two counts). The petition was denied on November 28, 2000. Mack v. Artuz, 98-CV-6341 (FB) (E.D.N.Y.). By Mandate issued May 10, 2002, the Second Circuit denied petitioner's motion to proceed in forma pauperis and dismissed the appeal. On December 9, 2010, petitioner filed this pro se petition challenging those same convictions and seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons set forth below, the court cannot consider the instant petition and transfers it to the U.S. Court of Appeals for the Second Circuit.
The Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA") "allocates jurisdiction to the courts of appeals, not the district courts, to authorize successive habeas motions or applications." Torres v. Senkowski, 316 F.3d 147, 151 (2d Cir. 2003); 28 U.S.C. § 2244(b)(3)(A).
Subsection (b)(3)(C) of § 2244 directs that: [t]he court of appeals may authorize the filing of a second or successive application only if it determines that the application makes a prima facie showing that the application satisfies the requirements of this subsection.
Therefore, petitioner must move in the U.S. Court of Appeals for the Second Circuit for permission to pursue this application, and "must show that the claim being raised by the instant application relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable, 28 U.S.C. § 2244 (b)(2)(A); or the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable fact finder would have found the applicant guilty of the underlying offense. 28 U.S.C. § 2244 (b)(2)(B)(i-ii)." McCrary v. Artuz, 2008 WL 2096965, at *1 (E.D.N.Y. May 16, 2008).
As this is petitioner's second petition for a writ of habeas corpus challenging the same conviction,*fn1 this court lacks jurisdiction to address it. Accordingly, the petition is transferred to the U.S. Court of Appeals for the Second Circuit. If the Second Circuit authorizes petitioner to proceed in this matter, petitioner shall move to reopen this case under this docket number.
DORA L. IRIZARRY United States District Judge