Blanding v. Warden
- Colleen McMahon
- 1:20-cv-05308
- U.S. District Court · Southern District of New York
- 2
In Blanding v. Warden, Judge McMahon transferred a second § 2254 petition to the appeals court because prior authorization was required.
Johnny Blanding, whose second § 2254 petition was transferred to the Second Circuit for authorization rather than decided on its merits.
What happened
In Blanding v. Warden, Johnny Blanding, who was incarcerated and representing himself, challenged his 2013 state-court conviction through a petition under § 2254.
The court found that Blanding had previously filed a petition challenging the same conviction and that the earlier petition had been decided on its merits. Because this was a second or successive petition, Blanding needed permission from the United States Court of Appeals for the Second Circuit before filing it in the district court.
Chief Judge Colleen McMahon transferred the petition to the Second Circuit in the interest of justice and closed the district-court case. She also declined to issue a certificate allowing an appeal and denied permission to proceed without paying filing fees for an appeal.
The detailed version
- Blanding v. Warden · No. 1:20-cv-05308
- Colleen McMahon
- July 10, 2020
Background
Johnny Blanding, who was incarcerated at the Vernon C. Bain Correctional Center on Rikers Island, filed a petition under 28 U.S.C. § 2254 challenging his June 21, 2013 conviction in New York Supreme Court, New York County. The opinion states that he was representing himself.
The district court's records showed that Blanding had filed an earlier § 2254 application challenging the same conviction. The earlier application had been decided on the merits. The court therefore treated the new application as a second or successive petition.
Authorization Requirement
Under 28 U.S.C. § 2244(b)(3)(A), a person must obtain authorization from the appropriate court of appeals before filing a second or successive § 2254 petition in a district court. The court stated that Blanding must ask the United States Court of Appeals for the Second Circuit for permission to pursue the application.
The opinion explains that such a request must show one of the grounds listed in § 2244(b)(2): either that the claim depends on a new, retroactive constitutional rule that was previously unavailable, or that newly undiscoverable facts, if proven, would clearly and convincingly establish that no reasonable factfinder would have found the person guilty without a constitutional error.
Ruling
The court transferred the petition to the United States Court of Appeals for the Second Circuit in the interest of justice under 28 U.S.C. § 1631. The order closed the district-court case and stated that, if the Court of Appeals authorized Blanding to proceed, he could ask to reopen the case under the same civil docket number.
The court also ruled that a certificate of appealability would not issue because Blanding had not made a substantial showing that a constitutional right had been denied. It certified that an appeal would not be taken in good faith and denied permission to proceed without paying filing fees for purposes of an appeal. The order did not decide the merits of Blanding's current challenge to his conviction.
Read the full 2-page opinion on CourtListener, the free public archive maintained by the Free Law Project.