Kelly v. Barometer
- Andrew Carter
- 1:20-cv-04649
- U.S. District Court · Southern District of New York
- 2
In Wesley Kelly v. D. Barometer, Judge Carter transferred Kelly’s successive conviction challenge to the Second Circuit because prior authorization was required.
Wesley Kelly’s federal challenge to his 2002 state-court conviction was transferred to the Second Circuit because the district court required appellate authorization for a second or successive petition. D. Barometer was named as the respondent.
What happened
Wesley Kelly v. D. Barometer concerned a petition by Wesley Kelly, who was incarcerated and represented himself, challenging his 2002 state-court conviction. He filed the petition under a federal law allowing challenges to state convictions.
The court found that Kelly had already filed an earlier petition challenging the same conviction and that the earlier petition had been decided on the merits. Because this was a second or successive petition, Kelly needed permission from the Second Circuit before pursuing it in the district court.
Judge Andrew L. Carter, Jr. transferred the petition to the Second Circuit and closed the district-court case. The court also declined to issue a certificate allowing an appeal and denied permission to appeal without paying filing fees.
The detailed version
- Kelly v. Barometer · No. 1:20-cv-04649
- Andrew Carter
- June 29, 2020
Background
Wesley Kelly, who was incarcerated at Otisville Correctional Facility, filed a petition under 28 U.S.C. § 2254 challenging his November 7, 2002 conviction in New York Supreme Court, New York County. The opinion states that Kelly was representing himself and had paid the $5 filing fee.
Reason for the Transfer
The court’s records showed that Kelly had previously filed an application under § 2254 challenging the same conviction. The earlier related proceeding was decided on the merits. The court therefore treated the new application as a second or successive petition.
Under 28 U.S.C. § 2244(b)(3)(A), a person must obtain authorization from the appropriate federal appeals court before filing a second or successive § 2254 petition in the district court. The opinion states that authorization may require showing either a qualifying new constitutional rule made retroactive by the Supreme Court or qualifying newly discovered facts meeting the statutory standard.
Ruling
In the interest of justice, the court transferred the petition to the United States Court of Appeals for the Second Circuit under 28 U.S.C. § 1631. The order closed the district-court case but stated that Kelly could ask to reopen it under the same civil docket number if the Court of Appeals authorized him to proceed.
The court also ruled that no certificate of appealability would issue because Kelly had not made a substantial showing that a constitutional right was denied. It certified that an appeal would not be taken in good faith and denied permission to appeal without paying filing fees. The opinion does not decide the merits of Kelly’s challenge to his conviction.
Read the full 2-page opinion on CourtListener, the free public archive maintained by the Free Law Project.