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Brown v. Chappius

United States District Court, N.D. New York

January 9, 2018

MARK BROWN, Petitioner,
v.
P. CHAPPIUS, JR., Superintendent, Respondent.

          MARK BROWN Petitioner, pro se

          DECISION and ORDER

          DAVID N. HURD United States District Judge

         I. INTRODUCTION

         In July 2017, petitioner Mark Brown ("Brown" or "petitioner") filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 along with supporting exhibits consisting of certain state court records. Dkt. No. 1, Petition ("Pet."); Dkt. No. 1-1, Exhibits.

         Currently pending is respondent Superintendent P. Chappius, Jr.'s ("respondent") letter motion seeking to transfer this case to the United States Court of Appeals for the Second Circuit as a second or successive petition pursuant to 28 U.S.C. § 2244(b). Dkt. No. 17, Letter Motion. For the reasons that follow, respondent's motion is granted and the petition is transferred to the Second Circuit.

         II. DISCUSSION

         A. The Petition

         Brown challenges a July 14, 2011 conviction in the Schenectady County Court of attempted second degree robbery. Pet. at 1.[1] Petitioner asserts that on December 13, 2012 the New York State Supreme Court, Appellate Division, Third Department, affirmed this judgment of conviction; that on July 16, 2013 the New York Court of Appeals denied him leave to appeal; and that on January 13, 2014 the United States Supreme Court denied his petition for a writ of certiorari. Id. at 2-3; accord, People v. Brown, 101 A.D.3d 1267 (3d Dep't 2012), lv. denied, 21 N.Y.3d 1014 (2013), cert. denied, 134 S.Ct. 938 (2014).

         Brown argues that he is entitled to habeas relief because (1) he was coerced to plead guilty and (2) the Schenectady County Court "reinstated and preserved" his right to appeal, despite his earlier waiver of the right to appeal, when it imposed a sentence outside of his "plea bargain guidelines." Pet. at 5-7. Petitioner asserts in his pending petition that he has not previously filed any type of petition, application, or motion in federal court regarding the conviction he is now challenging. Id. at 12.

         B. Petitioner's Prior Habeas Petition

         On or about March 10, 2014, Brown filed a petition pursuant to 28 U.S.C. § 2254 in this Court, challenging the same conviction at issue in his current petition. Brown v. Racette, No. 9:14-CV-0262 (TJM), Dkt. No. 1, Petition.

         On April 29, 2015, Senior United States District Court Judge Thomas J. McAvoy issued a Decision and Order denying and dismissing the petition. Id. at Dkt. No. 9. Judge McAvoy concluded that (1) Brown's claim that his waiver of the right to appeal was invalid was based on state law and did not entitle him to federal habeas relief; (2) petitioner's claim that his legal sentence was nevertheless harsh and severe was not cognizable; and (3) the Appellate Division's decision finding that petitioner was advised that sentencing could proceed in his absence, and of the potential sentence he faced if he failed to appear at sentencing, was not contrary to, or an unreasonable application of, clearly established Supreme Court precedent. Id.

         C. Analysis

         The Antiterrorism and Effective Death Penalty Act (AEDPA) restricted the ability of petitioners to ...


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