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Lewis v. Brown

United States District Court, Second Circuit

May 20, 2013

RYDELLE LEWIS, Petitioner,
v.
DAWSON BROWN, Superintendent of Groveland Correctional Facility, Respondent.

ORDER TO SHOW CAUSE

MICHAEL A. TELESCA, District Judge.

I. Background

On October 4, 2010, Rydelle Lewis ("Lewis" or "Petitioner") filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, alleging that his 2007 parole revocation hearing was constitutionally flawed. This Court issued a Decision and Order on December 12, 2011 (Dkt # 16), dismissing the petition and declining to grant a certificate of appealability. Judgment (Dkt #17) was entered on December 13, 2011.

Lewis timely filed a notice of appeal (Dkt #19) with the United States Court of Appeals for the Second Circuit. On July 5, 2012, the Second Circuit issued an order (Dkt #23) denying Lewis' motions for leave to appeal in forma pauperis and for a certificate of appealability because he had not made a "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c).

On August 1, 2012, [1] Lewis filed a motion for leave to file a second or successive petition ("the Second Petition") with the Second Circuit, which was opened as a new case.[2] See Lewis v. Brown, 12-3115-pr (2d Cir. 2012). On September 20, 2012, the Second Circuit issued an order denying the Second Petition as "unnecessary" because the adjudication of Lewis' prior § 2254 petition (the First Petition) was not final as of the date the Second Petition was filed. See Dkt ##24, 25 (Mandate of Second Circuit in Lewis v. Brown, 12-3115-pr) (citing Whab v. United States , 408 F.3d 116, 118-19 (2d Cir. 2005)). The Second Circuit explained that Lewis' time to seek certiorari from the Supreme Court[3] with respect to his appeal from this Court's December 2011 judgment denying the prior § 2254 petition had not expired as of the date he filed the Second Petition. See Dkt ##24, 25 (Mandate of Second Circuit in Lewis v. Brown, 12-3115-pr ("Mandate")) (citing Whab , 408 F.3d at 120) ("[A]djudication [of a habeas petition] will not be final until petitioner's opportunity to seek review in the Supreme Court has expired.")). Because the First Petition was not "finally adjudicated", the Second Petition was not a "second or successive" petition within the meaning of 28 U.S.C. § 2244(b).

The Second Circuit transferred the Second Petition to this Court for "whatever further action the district court finds appropriate, as if it had been filed directly in the district court.'" (Dkt ##24, 25) (Mandate) (quoting Whab , 408 F.3d at 119).[4] However, the Second Circuit provided no indication as to what further action might be appropriate.

II. Characterization of the Second Petition

With regard to how this Court should treat the Second Petition, one possibility is to consider it a motion to amend the First Petition. However, "Whab indicates that a district court should not entertain a motion to amend a habeas petition where the court does not have simultaneously before it both the original petition and the motion to amend." Williams v. United States, Nos. 00 CR. 1008 NRB, 09 CIV. 2179 NRB, 2013 WL 239839, at *2 (S.D.N.Y. Jan. 23, 2013); see also D'Amico v. Conway, No. 04 Civ. 2253, 2008 WL 5819622, at *2 (S.D.N.Y. Oct. 30, 2008); Lynch v. Lord, No. 01-CV-0641(VEB), 2008 WL 343085, at *5 n. 4 (W.D.N.Y. Feb. 6, 2008); Breeden v. Ercole, No. 06 CV 3860, 2007 WL 3541184, at *1 (E.D.N.Y. Nov.14, 2007). Here, because the Second Circuit ultimately denied a certificate of appealability as to Lewis' First Petition, the two petitions will not be before this Court simultaneously. Thus, "there is no longer a [f]irst petition to amend[, ]" Lynch, 2008 WL 343085, at *5 n.4. The Second Petition cannot amend a non-existent pleading.

Another possibility is to treat Lewis's Second Petition as a motion to amend or alter the judgment, FED. R. CIV. P. 59(e), or for relief from judgment, FED. R. CIV. P. 60(b). However, Lewis raises four new grounds for relief, and therefore this characterization is not appropriate. See Negron v. United States, No. 08-3233-pr, 394 F.Appx. 788, 793, 2010 WL 3818099, at **4 (2d Cir. Oct. 1, 2010) ("A motion to reconsider... is an improper means to raise new grounds for habeas relief that could have been presented in the earlier habeas proceeding.") (citation omitted).

The only remaining possibility is to treat Lewis' Subsequent Petition, which advances four new claims, as an independent § 2254 petition. See Negron, 394 F.Appx. at 794 ("Consequently, we deem Negron's May 24, 2008 motion for reconsideration[, ] to the extent it advances five new claims[, ] to be an independent section 2255 petition and not a motion to amend the earlier purported section 2255 petition.") (emphasis in original). However, treating the Second Petition as a wholly new pleading raises issues of timeliness under AEDPA's statute of limitations, see 28 U.S.C. § 2244(d)(1). See also Hoffenberg v. United States, No. 06-3208-pr, 333 F.Appx. 625, 628, 2009 WL 1740050, at **3 (2d Cir. June 19, 2009) (declining to transfer subsequent petition back to district court, pursuant to Whab; finding that "a transfer would be futile because the subsequent petition was filed eight years after Petitioner's conviction, and the petition must therefore, as a matter of law, be denied by the District Court as untimely") (citation omitted). The abuse-of-the-writ doctrine also must be considered if the subsequently filed petition raises claims that could have been raised in the initial petition. See Whab , 408 F.3d at 119 n.2 (stating that a petition might not technically be successive but "[t]raditional doctrines, such as abuse of the writ, continue to apply").

As discussed further below, the Court finds that Lewis' Second Petition constitutes an abuse of the writ, and must be dismissed on that basis. The Court accordingly has no need to reach the somewhat more complicated issue of whether the Second Petition is timely.

III. Abuse of the Writ Doctrine

"The rationale behind the abuse-of-the-writ doctrine is that a suitor's conduct in relation to the matter at hand may disentitle him to the relief he seeks.'" Ching v. United States , 298 F.3d 174, 179 (2d Cir. 2002) (quoting Sanders v. United States , 373 U.S. 1, 17 (1963)). "Nothing in the traditions of habeas corpus requires the federal courts to tolerate needless, piecemeal litigation, or to entertain collateral proceedings whose only purpose is to vex, harass, or delay." Sanders , 373 U.S. at 18; accord, e.g., McCleskey v. Zant , 499 U.S. 467, 485 (1991), superceded in part by 28 U.S.C. § 2244(b) (1996). A habeas claim that "was, or could have been, raised in an earlier petition" is generally considered an "abuse of the writ." James v. Walsh , 308 F.3d 162, 167 (2d Cir. 2002); accord, e.g., Hoffenberg, 333 F.Appx. at 629.

The Supreme Court has stated that "[w]hen a prisoner files a second or subsequent application, the government bears the burden of pleading abuse of the writ[, ]" McCleskey , 499 U.S. at 495. Once abuse-of-the-writ has been raised, it becomes the petitioner's burden to excuse his failure to raise the claim earlier by showing cause for failing to raise it and prejudice therefrom as those concepts have been defined in the Supreme Court's procedural default decisions. 499 U.S. at 494. In the abuse-of-the-writ context, as in the procedural default context, the prejudice prong requires that the petitioner show "actual prejudice, " McCleskey , 499 U.S. at 493, "not merely that the errors at his trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with ...


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