Marshall v. Doccs

• Decision Date: 19 May 2017
• Docket Number: 9:16-CV-1501 (GTS)
• Parties: KALVIN MARSHALL, Petitioner, v. NYS DOCCS, et. al., Respondents.
• Court: U.S. District Court — Northern District of New York

KALVIN MARSHALL, Petitioner,
v.
NYS DOCCS, et. al., Respondents.

9:16-CV-1501 (GTS)

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK

May 19, 2017

APPEARANCES:

KALVIN MARSHALL
37417-083
Petitioner, pro se
USP Lee, Inmate Mail/Parcels
P.O. Box 305
Jonesville, VA 24263

HON. ERIC T. SCHNEIDERMAN
Attorney for Respondent
Office of the Attorney General
120 Broadway
New York, New York 10271

PAUL B. LYONS, AAG

GLENN T. SUDDABY Chief United States District Judge

DECISION AND ORDER

I. INTRODUCTION

Petitioner Kalvin Marshall filed a petition for a writ of habeas corpus and exhibits pursuant to 28 U.S.C. § 2241. Dkt. No. 1, Petition ("Pet."); Dkt. Nos. 1-1 and 1-3, Exhibits.¹ Respondent filed an answer, and petitioner filed a reply. Dkt. No. 5, Respondent's Letter Brief; Dkt. No. 8, Traverse. For the reasons that follow, the petition will be transferred to the Second Circuit Court of Appeals.

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II. RELEVANT BACKGROUND

In 2001, petitioner was tried in absentia in the Kings County Supreme Court and was convicted of attempted second degree murder and related charges. Pet. at 2-3, 8; see Dkt. No. 1-1, Hearing Transcript, Feb. 14, 2001; People v. Marshall, 35 A.D.3d 764 (2d Dep't. 2006), lv. denied 8 N.Y.3d 947 (2007).

On October 30, 2002, petitioner pleaded guilty to conspiracy to distribute crack cocaine (21 U.S.C. §846) (Count 1s) and felon in possession of a firearm (18 U.S.C. §922(g)(1)) (Count 5s) in the Eastern District of Virginia. United States v. Marshall, No. 3:02-CR-0225, Dkt. Nos 41-44 (E.D. Va. Oct. 30, 2002). On January 24, 2003, he was sentenced to serve an aggregate term of 384 months in prison followed by 5 years supervised release. Id. at Dkt. No. 53; Pet. at 1.

On or about March 7, 2003, the New York State Department of Corrections and Community Supervision ("DOCCS") lodged a detainer against petitioner based on the 2001 Kings County conviction. Pet. at 8; Dkt. No. 1-3, Letter.

In August 2008, petitioner challenged his 2001 Kings County conviction in a petition brought pursuant to 28 U.S.C. §2254 in the Eastern District of New York. Pet. at 6; Marshall v. Keffer, No. 1:08-CV-3424, Dkt. No. 1. He argued that he was tried in absentia in violation of the United States Constitution, and that appellate counsel was ineffective. See id. at Dkt. No. 1-3. On October 12, 2011, the petition was denied and dismissed on the merits. Marshall v. Keffer, No. 1:08-CV-3424, Dkt. No. 28, 2011 WL 12544179 (E.D.N.Y. Oct. 12, 2011). Petitioner moved to alter or amend the judgment pursuant to Fed. R. Civ Proc. 59(e), and on November 14, 2011, the motion was denied. Id. at Dkt. Nos. 30-31. Petitioner

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appealed the denial of his petition and motion, and on October 4, 2012, the Second Circuit denied a certificate of appealability ("COA") and dismissed the appeal. Id. at Dkt. No. 37.

In June 2013, petitioner moved to reopen the petition pursuant to Rule 60(b)(1) and (d)(1) of the Federal Rules of Civil Procedure. Marshall v. Keffer, No. 1:08-CV-3424, Dkt. No. 38. On November 7, 2013, the motion was denied. See id., Dkt. No. 40, 2013 WL 9894223 (E.D.N.Y. Nov. 7, 2013). Petitioner appealed, and on April 8, 2014, the Second Circuit denied his motion for a COA and dismissed the appeal. Id. at Dkt. No. 45.

Petitioner moved for reconsideration of the Eastern District Court's November 7, 2013 decision denting his Rule 60(b) motion. Marshall v. Keffer, No. 1:08-CV-3424, Dkt. No. 46. On November 17, 2014, the motion was denied. Id. at Dkt. No. 51, 2014 WL 6460687 (E.D.N.Y. Nov. 17, 2014). Petitioner appealed, and on May 6, 2015, the Second Circuit denied his request for a COA and dismissed the appeal. Id. at Dkt. No. 55.

In June 2015, petitioner again moved to reopen his petition pursuant to Fed. R. Civ. P. 60(b), and the motion was denied on June 29, 2015. Marshall v. Keffer, No. 1:08-CV-3424, Dkt. Nos. 56-57. Between August 2015 and October 2015, petitioner filed additional motions related to his petition. Id. at Dkt. Nos. 58-60. On February 9, 2016, these motions were dismissed with prejudice, and the district court advised petitioner that "any further successive motions for reconsideration may be an abuse of the process of this Court and could result in an order denying Marshall the ability to bring any further motions for reconsideration." Id. at Dkt. No. 63, 2016 WL 541137 (E.D.N.Y. Feb. 9, 2016) (internal quotation marks and citation omitted).

Within days of the court's February 9, 2016 order, petitioner filed a motion to alter the judgment. Marshall v. Keffer, No. 1:08-CV-3424, Dkt. No. 64. On July 25, 2016, the district

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court dismissed the motion with prejudice, and again warned petitioner that "any further motions of this kind, ..., may be an abuse of the process of the court and could thus result in an order denying Marshall the ability to bring any further such motions." Id., Dkt. No. 67 at 8. Petitioner appealed, but later moved to withdraw his appeal. On October 5, 2016, petitioner's motion to withdraw his appeal was granted. Id., Dkt. No. 70.

On December 13, 2016, the district court denied petitioner's motion for a COA to appeal from its February 8 and July 21, 2016 Orders. Marshall v. Keffer, No. 1:08-CV-3424, Dkt. No. 71 (referencing orders at Dkt. Nos. 63 and 67). On February 14, 2017, the Second Circuit also denied petitioner's motion for a COA and dismissed his appeal. Id. at Dkt. No. 72.

III. THIS ACTION

In the midst of the ongoing litigation in the Eastern District, petitioner filed this action on or about December 12, 2016. Pet. at 15. He claims that the 2003 New York detainer is invalid because the 2001 Kings County conviction upon which it is based is "constitutionally defective" because he was tried in absentia but did not waive his right to be present at trial. Pet. at 6, 8-13; see Dkt. No. 1-1, Hearing Transcript, Feb. 14, 2001. He asks this Court to release him from custody or to order "any other relief this court may deem proper." Pet. at 14; see Dkt. No. 8 at 2.

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IV. DISCUSSION²

A. Governing Statute

Petitioner is adamant that his petition should be considered pursuant to 28 U.S.C. §2241. Pet.; see Dkt. No. 8, Reply. Respondent argues that because petitioner is challenging the validity of a New York state conviction upon which a state detainer is based, the petition is properly brought pursuant to 28 U.S.C. §2254. Dkt. No. 5, Letter Brief. This Court agrees with respondent.

The fact that petitioner has invoked section 2241 does not require the Court to so construe the petition. Rather, "'it is the substance of the petition, rather than its form, that' governs." Cook v. New York State Div. of Parole, 321 F.3d 274, 278 (2d Cir. 2003) (quoting James v. Walsh, 308 F.3d 162, 166 (2d Cir. 2002)). Sections 2241 and 2254 have overlapping language, but the sections address different claims. Section 2254 governs petitions filed by "a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or...