Xochimitl v. Miller
- Colleen McMahon
- 1:20-cv-09286
- U.S. District Court · Southern District of New York
- 2
In Xochimitl v. Miller, Chief Judge McMahon transferred the petitioner's habeas case to the Eastern District of New York.
Omar Xochimitl's federal challenge to his New York conviction and sentence was transferred from the Southern District of New York to the Eastern District of New York.
What happened
In Xochimitl v. Miller, Omar Xochimitl, who was incarcerated and representing himself, filed a petition challenging the constitutionality of his New York state conviction and sentence.
Because the conviction and sentence came from Kings County, the court transferred the case to the Eastern District of New York under its local rules. The Southern District of New York closed the action, and the receiving court will decide whether Xochimitl may proceed without paying fees.
Chief Judge Colleen McMahon also ruled that a certificate permitting an appeal would not issue and denied payment-free status for any appeal. The order did not decide whether Xochimitl's conviction or sentence was constitutional.
The detailed version
- Xochimitl v. Miller · No. 1:20-cv-09286
- Colleen McMahon
- Nov. 5, 2020
Background
Omar Xochimitl, who was incarcerated at Great Meadow Correctional Facility and proceeding without a lawyer, filed a petition under 28 U.S.C. § 2254 asking a federal court to review the constitutionality of his conviction and sentence from the New York Supreme Court, Kings County.
Transfer
The court concluded that Kings County is in the Eastern District of New York. Under Southern District of New York Local Civil Rule 83.3, it directed the Clerk of Court to transfer the action to the Eastern District of New York, mail Xochimitl a copy of the order, and record service on the docket. The order states that the Southern District action was closed. It also states that the transferee court—the court receiving the case—would decide whether Xochimitl could proceed without paying fees.
Rulings
Chief Judge Colleen McMahon ruled that a certificate of appealability would not issue because Xochimitl had not made a substantial showing that a constitutional right was denied. The court also certified that an appeal would not be taken in good faith and denied payment-free status for purposes of an appeal. The order transferred the case and did not decide the underlying challenge to Xochimitl's conviction or sentence.
Read the full 2-page opinion on CourtListener, the free public archive maintained by the Free Law Project.