United States District Court, N.D. New York
BROWN Petitioner, pro se
DECISION and ORDER
N. HURD United States District Judge
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.
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.
challenges a July 14, 2011 conviction in the Schenectady
County Court of attempted second degree robbery. Pet. at
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).
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.
Petitioner's Prior Habeas Petition
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.
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.
Antiterrorism and Effective Death Penalty Act (AEDPA)
restricted the ability of petitioners to ...