United States District Court, N.D. New York
MARSHALL Petitioner, pro se
ERIC T. SCHNEIDERMAN PAUL B. LYONS, AAG, Attorney for
Respondent Office of the Attorney General
DECISION AND ORDER
T. SUDDABY, Chief United States District Judge
Kalvin Marshall filed a petition for a writ of habeas corpus
and exhibits pursuant to 28 U.S.C. § 2241. Dkt. No. 1,
Petition ("Pet."); Dkt. Nos. 1-1 and 1-3,
filed an answer, and petitioner filed a reply. Dkt. No. 5,
Respondent's Letter Brief; Dkt. No. 8, Traverse. For the
reasons that follow, the petition will be transferred to the
Second Circuit Court of Appeals.
2001, petitioner was tried in absentia in the Kings County
Supreme Court and was convicted of attempted second degree
murder and related charges. Pet. at 2-3, 8; see Dkt.
No. 1-1, Hearing Transcript, Feb. 14, 2001; People v.
Marshall, 35 A.D.3d 764 (2d Dep't. 2006), lv.
denied 8 N.Y.3d 947 (2007).
October 30, 2002, petitioner pleaded guilty to conspiracy to
distribute crack cocaine (21 U.S.C. §846) (Count 1s) and
felon in possession of a firearm (18 U.S.C. §922(g)(1))
(Count 5s) in the Eastern District of Virginia. United
States v. Marshall, No. 3:02-CR-0225, Dkt. Nos 41-44
(E.D. Va. Oct. 30, 2002). On January 24, 2003, he was
sentenced to serve an aggregate term of 384 months in prison
followed by 5 years supervised release. Id. at Dkt.
No. 53; Pet. at 1.
about March 7, 2003, the New York State Department of
Corrections and Community Supervision ("DOCCS")
lodged a detainer against petitioner based on the 2001 Kings
County conviction. Pet. at 8; Dkt. No. 1-3, Letter.
August 2008, petitioner challenged his 2001 Kings County
conviction in a petition brought pursuant to 28 U.S.C.
§2254 in the Eastern District of New York. Pet. at 6;
Marshall v. Keffer, No. 1:08-CV-3424, Dkt. No. 1. He
argued that he was tried in absentia in violation of the
United States Constitution, and that appellate counsel was
ineffective. See Id. at Dkt. No. 1-3. On October 12,
2011, the petition was denied and dismissed on the merits.
Marshall v. Keffer, No. 1:08-CV-3424, Dkt. No. 28,
2011 WL 12544179 (E.D.N.Y. Oct. 12, 2011). Petitioner moved
to alter or amend the judgment pursuant to Fed. R. Civ Proc.
59(e), and on November 14, 2011, the motion was denied.
Id. at Dkt. Nos. 30-31. Petitioner appealed the
denial of his petition and motion, and on October 4, 2012,
the Second Circuit denied a certificate of appealability
("COA") and dismissed the appeal. Id. at
Dkt. No. 37.
2013, petitioner moved to reopen the petition pursuant to
Rule 60(b)(1) and (d)(1) of the Federal Rules of Civil
Procedure. Marshall v. Keffer, No. 1:08-CV-3424,
Dkt. No. 38. On November 7, 2013, the motion was denied.
See id., Dkt. No. 40, 2013 WL 9894223 (E.D.N.Y. Nov.
7, 2013). Petitioner appealed, and on April 8, 2014, the
Second Circuit denied his motion for a COA and dismissed the
appeal. Id. at Dkt. No. 45.
moved for reconsideration of the Eastern District Court's
November 7, 2013 decision denting his Rule 60(b) motion.
Marshall v. Keffer, No. 1:08-CV-3424, Dkt. No. 46.
On November 17, 2014, the motion was denied. Id. at
Dkt. No. 51, 2014 WL 6460687 (E.D.N.Y. Nov. 17, 2014).
Petitioner appealed, and on May 6, 2015, the Second Circuit
denied his request for a COA and dismissed the appeal.
Id. at Dkt. No. 55.
2015, petitioner again moved to reopen his petition pursuant
to Fed.R.Civ.P. 60(b), and the motion was denied on June 29,
2015. Marshall v. Keffer, No. 1:08-CV-3424, Dkt.
Nos. 56-57. Between August 2015 and October 2015, petitioner
filed additional motions related to his petition.
Id. at Dkt. Nos. 58-60. On February 9, 2016, these
motions were dismissed with prejudice, and the district court
advised petitioner that "any further successive motions
for reconsideration may be an abuse of the process of this
Court and could result in an order denying Marshall the
ability to bring ...