Kirkland v. United States
- Laura Swain
- 1:24-cv-04434
- U.S. District Court · Southern District of New York
- 3
In Kirkland v. United States, Judge Swain reclassified the petition, required a fee or fee-waiver application, and allowed withdrawal within 30 days.
Tarence Kirkland, who must choose whether to withdraw the reclassified petition and, if he proceeds, must pay the $5 filing fee or submit a signed fee-waiver application within 30 days.
What happened
In Kirkland v. United States, Tarence Kirkland challenged a 2017 Westchester County, New York, conviction under a federal law meant for challenges to federal convictions. The court determined that his challenge belonged under a different federal law for challenges to state-court convictions.
The court reclassified the submission as a petition challenging a state conviction and gave Kirkland 30 days to withdraw it. If he continued, he had to pay the $5 filing fee or submit a signed application asking to proceed without paying the fee in advance.
Judge Laura Taylor Swain ordered these steps and said the case would be processed after Kirkland complied. She stated that failure to comply would result in dismissal without prejudice, did not require an answer yet, denied a certificate of appealability, and denied fee-waiver status for an appeal.
The detailed version
- Kirkland v. United States · No. 1:24-cv-04434
- Laura Swain
- July 12, 2024
Background
Tarence Kirkland, proceeding without a lawyer, filed a petition labeled under 28 U.S.C. § 2255. That statute generally allows a federal prisoner to challenge a federal conviction or sentence. Kirkland instead sought to challenge his September 1, 2017, Westchester County state-court conviction, for which he received a six-year sentence.
Recharacterization under Section 2254
The court determined that the filing had to be treated as a petition under 28 U.S.C. § 2254. Section 2254 is the procedure for challenging a state-court judgment on the ground that custody violates the Constitution, federal laws, or treaties. The court gave Kirkland 30 days from the order's date to notify the court in writing if he wanted to withdraw the reclassified petition. If he did not do so, the filing would remain designated as a Section 2254 petition.
Filing-fee requirement
To continue with the Section 2254 petition, Kirkland had to pay the $5 filing fee or submit a signed application to proceed without prepaying the fee. The court stated that, if the application were granted, he could proceed without paying the fee in advance.
Disposition
The court reclassified Kirkland's submission as a Section 2254 petition and ordered him to notify the court within 30 days if he wished to withdraw it. If he intended to proceed, he had 30 days to pay the filing fee or submit the fee-waiver application. The court stated that failure to comply would result in dismissal without prejudice. No answer was required at that stage, and the court said it would rule on Kirkland's request for an order requiring the government to respond after he paid the fee or submitted the application.
The court also stated that the petition did not make a substantial showing that a constitutional right had been denied, so it would not issue a certificate of appealability. It certified that an appeal would not be taken in good faith and denied permission to proceed without prepaying fees for an appeal. The order did not decide the merits of Kirkland's challenge to his conviction.
Read the full 3-page opinion on CourtListener, the free public archive maintained by the Free Law Project.