Mercado v. Lee
- Colleen McMahon
- 1:20-cv-06340
- U.S. District Court · Southern District of New York
- 2
In Mercado v. Lee, Judge McMahon transferred the successive petition to the Second Circuit because appellate authorization was required.
Oscar Mercado's § 2254 petition was transferred to the Second Circuit for authorization, and the Southern District of New York case was closed without a decision on the conviction challenge.
What happened
Oscar Mercado, who was incarcerated and representing himself, filed a petition under 28 U.S.C. § 2254 challenging his New York state-court conviction. The case was Mercado v. Lee, decided by the U.S. District Court for the Southern District of New York.
The court found that Mercado had previously filed a petition challenging the same conviction and that the earlier petition had been decided on its merits. As a result, this petition was considered a later petition requiring permission from the Second Circuit before it could proceed in the district court.
The court transferred the petition to the Second Circuit and closed the district-court case. Judge Colleen McMahon also declined to issue a certificate of appealability and denied permission to appeal without paying filing fees.
The detailed version
- Mercado v. Lee · No. 1:20-cv-06340
- Colleen McMahon
- Aug. 26, 2020
Background
Oscar Mercado filed a petition under 28 U.S.C. § 2254 challenging his September 22, 2002 conviction in New York Supreme Court, Westchester County. The opinion states that Mercado was incarcerated at Eastern Correctional Facility and was representing himself. A footnote states that state-court records identify the judgment of conviction as entered on October 29, 2002, and amended on January 22, 2003.
Reason for the Transfer
The district court's records showed that Mercado had previously sought relief under § 2254 concerning the same conviction. The court stated that the earlier application had been decided on the merits, making the present application a second or successive petition. The opinion also notes that this was actually Mercado's third § 2254 application and references a prior related proceeding.
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 a federal district court. The court therefore concluded that Mercado had to ask the U.S. Court of Appeals for the Second Circuit for permission to pursue the application. The opinion identifies the possible statutory bases for authorization as a previously unavailable new constitutional rule made retroactive by the Supreme Court, or newly discoverable facts that could establish by clear and convincing evidence that no reasonable factfinder would have found the applicant guilty absent a constitutional error.
Ruling
The court transferred the action to the Second Circuit under 28 U.S.C. § 1631 and closed the district-court case. It stated that, if the Court of Appeals authorized Mercado to proceed, he could move to reopen the case under the same civil docket number. The court did not decide the underlying challenge to the conviction.
The court also stated that a certificate of appealability would not issue because Mercado 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 appeal without paying filing fees. Judge Colleen McMahon signed the order.
Read the full 2-page opinion on CourtListener, the free public archive maintained by the Free Law Project.