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Marshall v. Doccs

United States District Court, N.D. New York

May 19, 2017

KALVIN MARSHALL, Petitioner,
v.
NYS DOCCS, et al., Respondents.

          KALVIN MARSHALL Petitioner, pro se

          HON. ERIC T. SCHNEIDERMAN PAUL B. LYONS, AAG, Attorney for Respondent Office of the Attorney General

          DECISION AND ORDER

          GLENN T. SUDDABY, Chief United States District Judge

         I. INTRODUCTION

         Petitioner 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, Exhibits.[1]

         Respondent 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.

         II. RELEVANT BACKGROUND

         In 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).

         On 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.

         On or 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.

         In 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.

         In June 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.

         Petitioner 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.

         In June 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 ...


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