Ishmael v. Montagari
- Laura Swain
- 1:22-cv-08236
- U.S. District Court · Southern District of New York
- 2
In Ishmael v. Montagari, Judge Swain transferred Ishmael’s petition challenging his conviction to the Eastern District of New York because the conviction and sentence were from Queens County.
Darryel Ishmael’s federal challenge to his state-court conviction was transferred from the Southern District of New York to the Eastern District of New York; A. Montagari was the named respondent.
What happened
Ishmael v. Montagari concerns Darryel Ishmael’s petition challenging the constitutionality of his conviction in the New York Supreme Court for Queens County. Ishmael filed the petition without a lawyer and was incarcerated at Mohawk Correctional Facility.
Because Ishmael was convicted and sentenced in Queens County, which is in the Eastern District of New York, the Southern District of New York transferred the case under its local rule. The court did not decide whether Ishmael’s conviction was constitutional.
Judge Laura Taylor Swain ordered the Clerk of Court to transfer the case and closed the Southern District case. She left the decision about whether Ishmael could continue without paying fees to the Eastern District court, declined to issue a certificate allowing an appeal, and denied fee-free status for any appeal.
The detailed version
- Ishmael v. Montagari · No. 1:22-cv-08236
- Laura Swain
- Sept. 28, 2022
Background
Darryel Ishmael, who was incarcerated at Mohawk Correctional Facility, filed a petition without a lawyer under 28 U.S.C. § 2254. This type of petition asks a federal court to review whether a state-court conviction violates the Constitution. Ishmael challenged his conviction in the New York Supreme Court, Queens County.
Transfer ruling
The Southern District of New York transferred the action under Local Rule 83.3. The court explained that Ishmael was convicted and sentenced in Queens County, which is located in the Eastern District of New York. The Clerk of Court was directed to transfer the action to that district.
The opinion did not decide the constitutionality of Ishmael’s conviction or otherwise reach the merits of his petition. It stated that whether Ishmael could proceed without paying fees was for the Eastern District of New York to decide. The transfer order closed the case in the Southern District of New York.
Appeal-related rulings
The court stated that Ishmael had not made a substantial showing that a constitutional right was denied, so it would not issue a certificate of appealability. A certificate of appealability is permission required for an appeal from certain habeas decisions. The court also certified that an appeal would not be taken in good faith and denied fee-free status for purposes of an appeal.
Disposition
The action was transferred to the United States District Court for the Eastern District of New York, and the Southern District of New York case was closed. The court did not rule on the merits of Ishmael’s constitutional challenge.
Read the full 2-page opinion on CourtListener, the free public archive maintained by the Free Law Project.