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Gunn v. Capra

United States District Court, N.D. New York

December 26, 2019

DARRELL GUNN, Petitioner,
v.
M. CAPRA, Respondent.

          DARRELL GUNN Petitioner, pro se

          DECISION AND ORDER

          THOMAS J. McAVOY, SENIOR UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         Petitioner Darrell Gunn filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, as well as various supporting exhibits. Dkt. No. 1, Petition ("Pet."); Dkt. No. 1-1, Exhibits ("Ex."). Additionally, petitioner filed an application to proceed in forma pauperis ("IFP"). Dkt. No. 2, IFP Application.[1], [2]

         Petitioner states that he previously filed a habeas corpus petition in this Court, for which a certificate of appealability was issued by the Second Circuit. Pet. at 12. Upon further review of the prior petition, and for the reasons discussed below, the petition must be transferred to the Second Circuit.

         II. PREVIOUS HABEAS PETITIONS

         Petitioner previously filed one habeas petition in the Northern District. Gunn v. Chappius, No. 9:10-CV-0060 (JKS) ("Gunn I"), Dkt. No. 1, Petition. Petitioner challenged a 2003 judgment of conviction, upon a guilty plea, in Onondaga County for first degree murder and first degree attempted murder. Gunn I, Dkt. No. 21, Dismissal Order, at 1. Petitioner argued that he was entitled to relief because

(1) his guilty plea was not knowingly and intelligently entered; (2) he did not knowingly and intelligently waive his right to appeal; (3) his guilty plea was coerced by the threat of imposition of the death penalty; and (4) he received ineffective assistance of trial counsel.

Id. at 2.

         The petition was denied and dismissed. Gunn I, Dismissal Order & Dkt. No. 22, Judgment. The Court held that the petition was untimely and petitioner was not entitled to equitable tolling. Gunn I, Dismissal Order at 10-11.

         On September 12, 2011, petitioner filed a Notice of Appeal with the United States Court of Appeals, Second Circuit. Gunn I, Dkt. No. 25, Notice of Appeal. On April 25, 2012, the Second Circuit granted petitioner's appeal and vacated this Court's judgment. Gunn I, Dkt. No. 33, Mandate. The Second Circuit remanded the case back to this Court to determine whether professional misconduct of the Pro Se Litigators - the legal entity which initially agreed to litigate petitioner's case and then declared bankruptcy and closed before filing the petition - was so egregious as to constitute an extraordinary circumstance warranting equitable tolling. Id. Ultimately, this Court determined that the petition was still untimely and should be dismissed. Gunn I, Dkt. No. 40, Order on Remand; Dkt. No. 41, Judgment.

         On November 14, 2013, petitioner filed a second Notice of Appeal with the Second Circuit. Gunn I, Dkt. No. 42, Second Notice of Appeal. On January 27, 2014, the Second Circuit dismissed petitioner's appeal finding that he "ha[d] not shown that jurists of reason would find it debatable whether the district court was correct in its procedural ruling . . . as to the untimeliness of the [petitioner's] petition filed pursuant to 28 U.S.C. § 2254." Id.

         III. THE PRESENT PETITION

         Petitioner's present petition again challenges his 2003 judgment of conviction, upon a guilty plea, from Onondaga County for first degree murder and first degree attempted murder. Pet. at 1-2; see also People v. Gunn, 35 A.D.3d 1243, 1243 (4th Dep't 2006). Petitioner references his prior habeas petition and alludes to a stall in its procedural posture as he awaits a decision from this Court after the Second Circuit granted his appeal and remanded the action. Id. at 12; see also Ex. at 1-12 (Dismissal Order); Id. at 13 (First Mandate remanding case back to this Court). However, ...


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