Ford v. Smith
- Vincent Briccetti
- 7:12-cv-08993
- U.S. District Court · Southern District of New York
- 2
In Ford v. Smith, Judge Briccetti transferred Ford’s motion to the Second Circuit as a successive habeas petition and denied both appeal certifications.
Corey Ford’s motion was transferred to the Second Circuit, and he was denied a certificate of appealability and permission to appeal without paying filing fees. The order did not resolve the merits of his habeas claims.
What happened
Ford v. Smith involved Corey Ford’s motion labeled a request for relief under Rule 60(b). The court had reclassified it as a second or successive petition challenging custody under federal law and asked Ford, who represented himself, to explain why the motion should not be transferred.
Ford submitted an addendum, but the court found that it did not give sufficient reasons to keep the matter in the district court. The court therefore transferred the motion to the U.S. Court of Appeals for the Second Circuit, which must authorize consideration of a second or successive petition before the district court can proceed.
Judge Vincent L. Briccetti directed the clerk to mail Ford the order, ruled that no certificate allowing an appeal would issue, and denied Ford permission to appeal without paying court fees. The order did not decide the substance of Ford’s habeas claims.
The detailed version
- Ford v. Smith · No. 7:12-cv-08993
- Vincent Briccetti
- Feb. 12, 2021
Background
Corey Ford filed a document titled a “Memorandum of Law Rule 60(b) Motion.” In an earlier order, the court recharacterized—that is, treated—the motion as a second or successive petition under 28 U.S.C. § 2254. Ford was proceeding without a lawyer. The court directed him to show cause, or explain, why it should not transfer the motion to the U.S. Court of Appeals for the Second Circuit.
Ford responded with an “Addendum.” The opinion states that the addendum did not provide sufficient reasons against transfer.
Ruling
The court transferred Ford’s motion to the Second Circuit as a second or successive § 2254 petition under 28 U.S.C. §§ 1631 and 2244(b)(3)(A). Under the cited statute, a petitioner must obtain authorization from the court of appeals before the district court may consider a second or successive petition. The opinion identifies possible authorization grounds involving a previously unavailable, retroactive constitutional rule or newly discovered facts meeting the statutory requirements.
The court did not decide the merits of Ford’s habeas claims. It directed the clerk to mail Ford a copy of the order and note service on the docket. If the Second Circuit authorizes Ford to proceed, the order states that he may ask to reopen this action under docket number 7:12-CV-8993 (VB).
Appeal-related rulings
Judge Vincent L. Briccetti ruled that a certificate of appealability would not issue because Ford had not made the required substantial showing that a constitutional right was denied. The court also certified that an appeal would not be taken in good faith and denied Ford permission to proceed without paying filing fees for the appeal.
Read the full 2-page opinion on CourtListener, the free public archive maintained by the Free Law Project.