Kemp v. Noeth
- Ronnie Abrams
- 1:20-cv-09121
- U.S. District Court · Southern District of New York
- 2
In Kemp v. Noeth, Judge McMahon moved Gary Kemp’s signed habeas petition into the original case and closed the duplicate action.
Gary Kemp’s federal custody challenge will proceed under docket number 20-CV-9121; docket number 20-CV-10012 was administratively closed, and no merits ruling was made.
What happened
Kemp v. Noeth involves Gary Kemp’s petition challenging his custody under federal law. The Court had previously told Kemp that his original petition was missing a signature. Kemp later filed a signed petition, but it was opened as a new case instead of being filed in the original case.
The Court ordered the Clerk to administratively close the newer case, 20-CV-10012, and file that case’s petition as an amended petition in the original case, 20-CV-9121. Kemp’s claims will continue under the original docket number.
Judge Colleen McMahon also ruled that an appeal from this order would not be taken in good faith and denied permission to appeal without paying the filing fee. The order did not decide the claims in Kemp’s petition.
The detailed version
- Kemp v. Noeth · No. 1:20-cv-09121
- Ronnie Abrams
- Dec. 8, 2020
Background
Gary Kemp filed a petition under 28 U.S.C. § 2254, a federal procedure for challenging state-court custody. The petition was opened under docket number 20-CV-9121, but the Court notified Kemp that it was deficient because the signature page was missing.
On November 25, 2020, Kemp filed a signed § 2254 petition. The Court stated that this filing likely responded to its earlier order, but the Clerk opened it as a new action under docket number 20-CV-10012 rather than filing it as an amended petition in the original action.
Court’s action
The Court directed the Clerk to administratively close the action under docket number 20-CV-10012. It also directed the Clerk to file the petition currently docketed as ECF No. 1 in that action as an amended petition in docket number 20-CV-9121. The claims in Kemp’s November 25 petition will therefore proceed under docket number 20-CV-9121.
The Court directed the Clerk to mail Kemp a copy of the order and record service on the docket. It certified under 28 U.S.C. § 1915(a)(3) that an appeal from the order would not be taken in good faith and denied permission to appeal without paying the filing fee. The order did not rule on the merits of Kemp’s custody-related claims.
Disposition
The Court administratively closed docket number 20-CV-10012 and transferred the petition filed there into the earlier action as an amended petition. It did not dismiss or deny the petition’s claims. The opinion is signed by Colleen McMahon, Chief United States District Judge.
Read the full 2-page opinion on CourtListener, the free public archive maintained by the Free Law Project.