Diaz v. Keyser

Background

Angel Diaz, who was incarcerated at Sullivan Correctional Facility and represented himself, filed a petition under 28 U.S.C. § 2254 challenging his 1990 conviction in New York Supreme Court, Bronx County.

Second or Successive Petition

The district court’s records showed that Diaz had previously sought relief under § 2254 challenging the same conviction. The earlier application had been decided on the merits. The court therefore treated the current 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 court of appeals before filing a second or successive § 2254 petition in the district court. The court stated that Diaz must ask the U.S. Court of Appeals for the Second Circuit for permission to pursue the application. The opinion’s footnote states that such a request must satisfy one of the statutory grounds for authorization, including reliance on a new, retroactive constitutional rule or newly undiscoverable facts meeting the statute’s demanding standard.

Disposition

The court transferred the petition to the Second Circuit under 28 U.S.C. § 1631 and closed the case in the district court. If the Court of Appeals authorizes Diaz to proceed, he may move to reopen the case under the same civil docket number.

Judge Colleen McMahon also ruled that a certificate of appealability would not issue because Diaz had not made a substantial showing that a constitutional right had been denied. The court certified that an appeal would not be taken in good faith and denied permission to appeal without paying filing fees. The court did not decide the merits of Diaz’s challenge to his conviction.