Rios v. Miller

Background

Johnny Rios, who is incarcerated at Green Haven Correctional Facility, filed a self-represented petition under 28 U.S.C. § 2254 challenging the constitutionality of his August 26, 2010, conviction in New York Supreme Court, Kings County. The opinion states that Rios described the filing as seeking permission to file a second or successive petition under 28 U.S.C. § 2244(b)(3)(A). It also states that Rios had previously filed a habeas petition in the Eastern District of New York that was decided on the merits in an earlier related proceeding.

Transfer

The Southern District of New York transferred the action under Local Rule 83.3 because Kings County, where Rios was convicted and sentenced, is located in the Eastern District of New York. The court directed the Clerk to transfer the action to that district and to mail Rios a copy of the order. The court left to the transferee court the decision whether to transfer the petition to the Court of Appeals as a second or successive petition. The transferee court must also decide whether Rios may proceed without paying filing fees; the opinion states that he had not paid the filing fee or submitted an application to proceed without paying it.

Ruling and Effect

Judge Laura Taylor Swain ordered the transfer and stated that the Southern District of New York case was closed. The order did not decide the constitutionality of Rios's conviction or whether he may proceed with the petition. The court stated that a certificate of appealability would not issue because Rios had not then made a substantial showing that a constitutional right was denied. It also certified that an appeal would not be taken in good faith and denied fee-free status for purposes of an appeal.