Kellier v. Warden Brian Auliffe

Background

The court had previously denied Joshua Kellier’s second amended petition for a writ of habeas corpus under 28 U.S.C. § 2254 because he had not exhausted available state-court remedies. It dismissed the action without prejudice, meaning the dismissal did not bar refiling. The court also ruled that no certificate of appealability would issue because Kellier had not made a substantial showing that a constitutional right had been denied. It certified that any appeal would not be taken in good faith and denied permission to proceed without paying filing fees for an appeal.

Kellier, who was incarcerated and representing himself, later filed an application for a certificate of appealability. Because the court had already denied a certificate, it treated that filing as a notice of appeal. Kellier then filed another notice of appeal, a motion for permission to proceed without paying filing fees on appeal, and an application to appeal without paying fees. He also filed a motion under Rule 59(e) of the Federal Rules of Civil Procedure and Local Civil Rule 6.3 seeking to alter or reconsider the judgment.

Notice of Appeal

The court concluded that Kellier’s application for a certificate of appealability functioned as a timely original notice of appeal. Although it was not titled a notice of appeal, it identified the parties, the judgment or order being appealed, and the United States Court of Appeals for the Second Circuit. The court treated Kellier’s later filing as a timely amended notice of appeal.

Jurisdiction Over Reconsideration Motion

Ordinarily, filing a notice of appeal transfers control over the appealed matters to the appeals court. But a timely Rule 59(e) motion delays the effectiveness of the notice of appeal until the district court rules on that motion. The court found that Kellier’s reconsideration motion was timely under the prison-mailbox rule, which treats a self-represented prisoner’s filing as made when it is given to prison officials for mailing. The court therefore had authority to decide the motion.

Reconsideration

The court denied Kellier’s motion under Rule 59(e) and Local Civil Rule 6.3. Such a motion requires showing that the court overlooked controlling law or factual matters that had already been presented. The court found that Kellier had not shown that it overlooked anything concerning the dismissal without prejudice for failure to exhaust available state-court remedies.

Permission to Appeal Without Paying Fees

The court denied Kellier’s motion for permission to proceed without paying filing fees on appeal and his application to appeal without paying fees. The court had already certified that an appeal from its earlier order and judgment would not be taken in good faith. Kellier must seek permission to appeal without paying fees from the Second Circuit.

Disposition

The court denied the reconsideration motion, denied the motion for permission to proceed without paying filing fees on appeal, and denied the application to appeal without paying fees. It directed the Clerk of Court to terminate ECF 73. The court also ruled that a certificate of appealability would not issue and certified that any appeal from this order would not be taken in good faith.