Only one case deserves above-the-fold treatment. Nothing too significant, just wanted to point out a procedural error.
But first, a couple of notes:
(1) Here's something I'll put down in the category of things I should have known: Back in August 2010, Stephen Robinson, who was a SDNY district court judge appointed by Bush II, left the bench to join a law firm.
This week saw a lot of decisions in his old cases that got transferred to at least one other judge. That includes the one with the procedural problem.
(2) After promising last week to try and provide links to decisions, many of this week's decisions were not available on Google Scholar. Oh well, best laid plans and all.
Let's start with the case with the procedural problem:
In Allen v. LeClair, 07-CV-11525, 2010 WL 4258856 (SDNY Oct. 27, 2010) (RO) (LMS), the MJ recommended that the petition be dismissed "as an improperly filed second and successive habeas petition which is also untimely." The DJ accepted that recommendation and dismissed the petition.
It should not have been done that way. If the MJ and the DJ believed that this was a second petition, the proper step is to transfer the petition to the Second Circuit for that court to consider in the first instance whether authorization should be granted to file a second successive petition. See Liriano v. United States, 95 F.3d 119 (1996).
Further, I am not sure whether the statute of limitations would apply to a second or successive petition. From the language of 2244(d), I'd say it's probable. But it's a secondary matter. If this is a second or successive petition, the district court has no jurisdiction to consider it. It has to be shipped over to the Circuit. In fact, the authorization process under 2244(b) does not consider timeliness. So I don't think timeliness is an issue that the court should have addressed.
List of cases below the fold . . .
Maxwell v. Conway, 06-CV-14203, 2010 WL 4273296 (SDNY Oct. 28, 2010) (KMK) (LMS)
Nudukwe v. New York, 08-CV-4984, 2010 WL 4386680 (EDNY Oct. 28, 2010) (NGG) (RLM)
Soto v. Donnelli, 06-CV-5816, 2010 WL 4258879 (SDNY Oct. 27, 2010) (RO) (LMS)
Guzman v. Rivera, 06-CV-3681, 2010 WL 4258923 (SDNY Oct. 27, 2010) (RO) (LMS)
Middleton v. Rivera, 05-CV-3145, 2010 WL 4258951 (SDNY Oct. 27, 2010) (RO) (LMS)
Habeas Dismissed as Untimely, Adopting R&R
Madison v. Hulihan, 08-CV-5195, 2010 WL 4258759 (SDNY Oct. 27, 2010) (RO) (LMS)
Cobb v. Artus, 08-CV-3955, 2010 WL 4258831 (SDNY Oct. 27, 2010) (RO) (GAY)
Fleegle v. Conway, 08-CV-0771, 2010 WL 4316572 (NDNY Oct. 26, 2010) (TJM) (DEP)