Kellier v. McAuliffe
- Laura Swain
- 1:24-cv-09583
- U.S. District Court · Southern District of New York
- 2
Judge Swain denied Kellier v. McAuliffe without prejudice because Joshua Kellier’s imprisonment petition duplicated his pending case.
Joshua Kellier, whose duplicative imprisonment petition was denied without prejudice; his separate pending action under No. 24-CV-8253 (LTS) was not decided by this order.
What happened
In Kellier v. McAuliffe, Joshua Kellier, who was representing himself, challenged what he called a conviction for criminal contempt of court. The court said the conviction appeared instead to be for first-degree sexual abuse and that Kellier appeared to be serving a seven-year prison term followed by 10 years of probation.
The court found that Kellier had already filed a substantially identical petition challenging the same conviction in a pending case, No. 24-CV-8253 (LTS). It therefore denied the new petition without prejudice as duplicative. The court said that any additional facts or attachments could be included in an amended petition in the pending case.
Judge Laura Taylor Swain also ruled that no certificate allowing an appeal would issue, denied permission to proceed without paying filing fees for an appeal, and directed the Clerk of Court to enter judgment. The court did not decide the underlying challenges to Kellier’s conviction.
The detailed version
- Kellier v. McAuliffe · No. 1:24-cv-09583
- Laura Swain
- Jan. 24, 2025
Background
Joshua Kellier, appearing without a lawyer, filed a petition under 28 U.S.C. § 2241 seeking federal review of his imprisonment. He described the challenged conviction as a July 25, 2024 conviction for “criminal contempt of court.” The court stated that the conviction appeared instead to be a conviction for first-degree sexual abuse in the New York Supreme Court, New York County. The court also stated that Kellier appeared to allege that he was serving a seven-year prison term followed by a 10-year probation term.
Reason for dismissal
The court found that Kellier had previously submitted a substantially identical petition raising the same challenges to the same conviction. That earlier submission began a pending action under docket number 24-CV-8253 (LTS). In that earlier action, the court had construed the submission as a petition under 28 U.S.C. § 2254, notified Kellier about that characterization, and gave him 60 days to notify the court if he did not want to proceed under § 2254 or to file an amended petition addressing specified requirements, including exhaustion of state-court remedies and timeliness.
Because the present petition duplicated the pending action, the court concluded that litigating it separately would serve no useful purpose. The court therefore denied the present petition without prejudice as duplicative of No. 24-CV-8253 (LTS). The court stated that, to the extent the new petition contained facts or attachments not included in the earlier submission, Kellier could include them in an amended petition filed in response to the order in the pending action.
Other rulings
The court determined that the present petition did not make a substantial showing that a constitutional right had been denied, so it ruled that a certificate of appealability would not issue. A certificate of appealability is a document required for an appeal in this type of case. The court also certified that an appeal would not be taken in good faith and denied permission to appeal without paying filing fees. It directed the Clerk of Court to enter judgment.
Effect of the order
This order ended the present duplicative action, but the court expressly denied the petition without prejudice and did not decide the merits of Kellier’s challenges to his conviction. The separate action under No. 24-CV-8253 (LTS) remained pending according to the opinion.
Read the full 2-page opinion on CourtListener, the free public archive maintained by the Free Law Project.