Scharkey v. Bennett
- Vernon Broderick
- 1:24-cv-01229
- U.S. District Court · Southern District of New York
- 2
In Scharkey v. Bennett, Judge Broderick transferred Scharkey’s habeas petition to the Second Circuit because it was a second petition requiring appellate permission.
James Scharkey’s federal petition was transferred to the Second Circuit, and the district-court action was closed unless the appeals court authorizes him to proceed.
What happened
In Scharkey v. Bennett, James Scharkey challenged the sentence from his 2015 New York state-court conviction through a petition asking a federal court to review his imprisonment. He represented himself.
The court said Scharkey had already filed an earlier petition challenging the same conviction and sentence, and that petition had been denied on its merits. Because of that earlier decision, this petition was a second or successive petition, which requires permission from the federal appeals court before a district court may consider it.
Judge Vernon S. Broderick transferred the case to the United States Court of Appeals for the Second Circuit and closed the district-court action. The court also said no certificate of appealability would issue and denied permission to appeal without paying the filing fee.
The detailed version
- Scharkey v. Bennett · No. 1:24-cv-01229
- Vernon Broderick
- Feb. 26, 2024
Background
James Scharkey, who was incarcerated at Sullivan Correctional Facility and proceeded without a lawyer, filed a petition under 28 U.S.C. § 2254 challenging the sentence imposed after his February 25, 2015 conviction in New York Supreme Court, New York County. The opinion states that Scharkey paid the filing fee for this action.
Reason for the Transfer
The court’s records showed that Scharkey had filed an earlier related federal petition challenging the same conviction and sentence. That earlier petition had been denied on the merits. The court therefore treated the present petition as a second or successive petition. Under 28 U.S.C. § 2244(b)(3)(A), a petitioner must obtain authorization from the appropriate federal court of appeals before filing such a petition in a federal district court.
Ruling
The court transferred the action to the United States Court of Appeals for the Second Circuit in the interest of justice, relying on 28 U.S.C. § 1631. The order closed the action in the district court. It stated that, if the Court of Appeals authorized Scharkey to proceed, he would have to ask the district court to reopen the action under its civil docket number.
The court also stated that no certificate of appealability would issue because Scharkey had not made a substantial showing that a constitutional right had been denied. It certified that an appeal from the order would not be taken in good faith and denied permission to appeal without prepaying the filing fee.
Read the full 2-page opinion on CourtListener, the free public archive maintained by the Free Law Project.