United States District Court, W.D. New York
DECISION AND ORDER
ELIZABETH A. WOLFORD UNITED STATES DISTRICT JUDGE
Peter King, who is incarcerated at the Wyoming Correctional
Facility serving a sentence of imprisonment of twenty-five
(25) years to life based on a conviction of two counts of
Murder in the Second Degree in violation of N.Y. Penal Law
§ 125.25(1) ("Intentional Murder") and N.Y.
Penal Law § 125.25(3) ("Felony Murder"), has
filed a Petition for a Writ of Habeas Corpus challenging said
conviction claiming that his trial counsel was ineffective
when he filed a notice of appeal from the conviction one day
late due to his alcohol and drug abuse. (Dkt. 1). Petitioner
also seeks permission to proceed in forma pauperis.
(Dkt. 2). As will be more fully set forth below, the instant
Petition constitutes a "second" or
"successive" petition, and the Court will direct
the Clerk of Court to transfer this action to the Second
Circuit for a determination regarding whether that court will
authorize the filing of the Petition. See Liriano v.
United States, 95 F.3d 119, 123 (2d Cir. 1996).
about December 15, 1986, following a jury trial, Petitioner
was convicted of two counts of Murder in the Second Degree
and sentenced to two indeterminate sentences of 25 years to
life to run concurrently. (Dkt. 1 at 2, 10). Petitioner's
Commitment Order to State incarceration reflected only that
Petitioner was convicted of "Murder 2[d Degree, ] 2
counts;" it did not indicate, however, what specific
sections of New York Penal Law his convictions were based
upon. (Id. at 10). Petitioner had been convicted of
Intentional Murder and Felony Murder, but his Inmate Status
Report and Criminal History Report erroneously stated that he
had been convicted of one count of Intentional Murder and one
count of murder in the second degree pursuant to N.Y.Penal
Law § 125.25(2) ("Depraved Indifference
Murder"). (Id. at 4, 17-28).
January 15, 1987, Petitioner's counsel filed a notice of
appeal one day late (id., at 2, 13), and on April 4,
1994, Petitioner filed a motion for an extension of time to
file a notice of appeal with the New York State Supreme
Court, Appellate Division, Fourth Department ("Fourth
Department"), which was denied on May 20, 1994.
(Id. at 3). On December 21, 1999, Petitioner filed
with the Fourth Department an application for a writ of error
coram nobis based on ineffective assistance of
counsel, which was denied on March 29, 2000. (Id.).
Petitioner's motion for reargument, filed on November 2,
2016, was also denied on December 8, 2016. (Id.).
April 10, 2000, Petitioner, by counsel, filed in this Court a
petition for a writ of habeas corpus challenging the same
conviction at issue in the instant Petition. King v.
Bennett, et al, 1:00-CV-00301-EAW. On January 12, 2004,
the late United States District Judge John T. Elfvin adopted
a Magistrate Judge's Report and Recommendation and
dismissed the petition as untimely pursuant to 28 U.S.C.
§ 2244(d)(1). (Id., Dkt. 34; see King v.
Bennet, No. 00-CV-00301-E (Sc), 2004 WL 625629 (W.D.N.Y.
Jan. 12, 2004)). Petitioner's notice of appeal and motion
for a certificate of appealability was denied by the United
States Court of Appeals for the Second Circuit. (King v.
Bennet, 1:00-CV-00301-EAW, Dkt. 37; Dkt. 38). On July
26, 2016, Petitioner filed in this Court a Motion to Vacate
the dismissal of the prior petition (id., Dkt. 39),
which was denied by the undersigned on September 12, 2016, as
was Petitioner's motion for a certificate of
appealability, (id, Dkt. 41; Dkt. 42).
April 27, 2015, Petitioner filed another application for a
writ of error coram nobis with the Fourth Department
on the basis that his trial counsel was ineffective when he
filed a late notice of appeal. (Dkt. 1 at 4). This
application was denied on May 20, 2015, as was his
application for a certificate granting leave to appeal to the
New York Court of Appeals on August 20, 2015, and his motion
for reargument of the denial of leave to appeal on October 8,
2015. (Id.). Petitioner also filed a petition for a
writ of certiorari with the United States Supreme Court,
which was denied on January 19, 2016. (Id.).
later moved the state trial court to modify the Certificate
of Conviction because his Division of Parole
records-i.e., Inmate Status Report and Criminal
History Report-erroneously reflected that he had been
convicted of Intentional Murder and Depraved Indifference
Murder, as opposed to what he was actually convicted of:
Intentional Murder and Felony Murder. (See Id . at
4-5). On August 31, 2016, the Clerk of Erie County entered a
new or amended Certificate Conviction stating that at a Term
of the Supreme Court held in and for the County of Erie on
December 15, 1986, Petitioner was convicted of Intentional
Murder in the Second Degree, N.Y. Penal Law § 125.25(1),
and Felony Murder in the Second Degree, id. §
125.25(3), and sentenced to twenty-five (25) years to life on
each, to run concurrent to each other, and indicated that a
"$95.00/$5.00 Mandatory Surcharge/CVAF [was i]mposed,
" (Dkt. 1 at 4-5, 29).
about October 1, 2016, Petitioner moved the trial court for
an order correcting information contained in both his Uniform
Sentence and Commitment Form and Certificate of Conviction on
the basis that: (1) the Uniform Sentence and Commitment Form
failed to specify the correct subdivision of the New York
Penal Law, which resulted in erroneous information on file
with the New York State Division of Criminal Justice that
inaccurately noted a conviction for Depraved Indifference
Murder; (2) the Petitioner's Date of Birth was stated
incorrectly on the Certificate of Conviction; and (3) the
Certificate of Conviction was incorrect because it referenced
that Petitioner was ordered to pay a $5.00 Crime Victim Fee
despite the fact that the Fee was not in effect until after
the date of Petitioner's conviction. (Id. at 5,
44). New York State Supreme Court, Erie County, granted the
motion in part and denied it in part and ordered the Clerk of
Erie County to amend the Certificate of Conviction by
removing any reference to the Crime Victim Fee and correcting
Petitioner's Date of Birth. (Id. At 45). The
trial court denied that part of the motion that sought to
amend the Uniform Sentence and Commitment on the basis that
"[w]hile the [Petitioner]'s Uniform Sentence and
Commitment form does not indicate the subdivisions of the two
counts of second degree murder on which he was convicted, his
Certificate of Conviction on file in the Erie County
Clerk's Office specifies that the [Petitioner] was
convicted of two counts of murder in the second degree,
subdivisions 1 and 3 of P.L. § 125.25."
(Id. at 44-45). On February 10, 2017, pursuant to
New York State Supreme Court's Order, a new or amended
Certificate of Conviction was entered by the Acting Clerk of
Erie County. (Id. at 48).
SECOND OR SUCCESSIVE PETITION
presented in the instant Petition, the preliminary issue is
whether the Petition is a "second" or
"successive" petition pursuant to 28 U.S.C. §
2244(b). If it is, it would need to be transferred to the
Second Circuit. Liriano v. United States, 95 F.3d
119, 123 (2d Cir. 1996); see 28 U.S.C. § 1631.
Petitioner claims that as a result of a "new" or
"amended" Certificate of Conviction, entered by the
Clerk of Erie County on or about February 10, 2017, the
instant Petition is not a second or successive petition
because it challenges a different judgment of conviction and
is timely because it was brought within one year of entry of
the "new" or "amended" Certificate of
Conviction. (Dkt. 1 at 6). Based on the reasons set forth
below, the Court finds that this is a "second" or
"successive" petition pursuant to 28 U.S.C. §
2244(b), and the Clerk of Court will be directed to transfer
this action to the Second Circuit for a determination
regarding whether that court will authorize the filing of the
Petition. See Liriano, 95 F.3d at 123.
to 28 U.S.C. § 2244(b), before a district court may
entertain a second or successive application for a writ of
habeas corpus filed pursuant to § 2254, the petitioner
must have first requested and obtained an order from the
appropriate court of appeals which authorizes the filing of
such a second or successive petition. In Magwood v.
Patterson,561 U.S. 320 (2010), the Supreme Court held
that "where . . . there is a new judgment intervening
between the two habeas petitions, an application challenging
the resulting new judgment is not second or successive at
all." Id. at 341-42 (internal quotation marks
and citation omitted). In Magwood, the petitioner
challenged only his new sentence, and the Supreme Court
declined to address whether "a petitioner who obtains a
conditional writ as to his sentence [would be permitted] to
file a subsequent application challenging not only his
resulting, new sentence, but also his original,
undisturbed conviction." Id. at 342
(emphasis in original). The Second Circuit thereafter,
applying Magwood, held in Johnson v. United
States,623 F.3d 41 (2d Cir. 2010), that "where a
first habeas petition results in an amended judgment, a
subsequent petition is not successive ...