United States District Court, N.D. New York
DARRELL GUNN Petitioner, pro se
DECISION AND ORDER
J. McAVOY, SENIOR UNITED STATES DISTRICT JUDGE
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., 
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.
PREVIOUS HABEAS PETITIONS
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.
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.
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.
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."
THE PRESENT PETITION
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, ...