Torres v. Senkowski

• Citation: 316 F.3d 147
• Decision Date: 09 January 2003
• Docket Number: Docket No. 02-2159.
• Parties: Angelo TORRES, Petitioner-Appellant, v. Daniel SENKOWSKI, Superintendent, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

316 F.3d 147

Angelo TORRES, Petitioner-Appellant, v. Daniel SENKOWSKI, Superintendent, Respondent-Appellee.

Docket No. 02-2159.

United States Court of Appeals, Second Circuit.

Argued: October 31, 2002.

Decided: January 9, 2003.

COPYRIGHT MATERIAL OMITTED

Randall D. Unger, Kew Gardens, NY, for Appellant.

Ruth E. Ross, Assistant District Attorney, Kings County (Charles J. Hynes, District Attorney, Leonard Joblove, Victor Barall, Assistant District Attorneys, of counsel), Brooklyn, NY, for Appellee.

Before: FEINBERG, CARDAMONE, and SACK, Circuit Judges.

SACK, Circuit Judge.

The appellant, Angelo Torres, appeals from the denial of his second 28 U.S.C. § 2254 application for habeas relief from his state convictions for murder, attempted murder, and weapons possession. Torres's first application for habeas relief, filed in 1984, was denied on the merits. After the effective date of the Antiterrorism and Effective Death Penalty Act ("AEDPA") of 1996, Pub.L. No. 104-132, 110 Stat. 1214 (1996), Torres filed a second application for habeas relief in the United States District Court for the Eastern District of New York. The district court (Jack B. Weinstein, Judge) found that the respondent, the State of New York, had waived AEDPA's requirement that all second or successive applications must be authorized by an order of the appropriate court of appeals. The district court then denied Torres's application for habeas relief on the merits.

This appeal presents the question whether AEDPA's authorization requirement can be waived. On the basis of our decisions in Corrao v. United States, 152 F.3d 188 (2d Cir.1998), and Liriano v. United States, 95 F.3d 119 (2d Cir.1996) (per curiam), we conclude that the authorization requirement is jurisdictional and therefore cannot be waived.

Because Torres filed a previous habeas application before AEDPA's effective date, and filed the current habeas application after AEDPA's effective date, this appeal appears to present another question: whether applying AEDPA's gatekeeping requirements to the current application would create an impermissible retroactive effect. But we need not and do not reach this question because Torres fails to satisfy either the pre-AEDPA or the post-AEDPA substantive standard for successive habeas applications. We do, however, address a related procedural matter, concluding that all successive petitions must comply with AEDPA's authorization requirement, regardless of whether they are governed by the pre-AEDPA or post-AEDPA substantive standard.

BACKGROUND

In a judgment rendered August 6, 1981, after a jury trial in New York State Supreme Court, Kings County (Sybil Hart Kooper, Justice), Torres was convicted of murder in the second degree, N.Y. Penal Law § 125.25[1], attempted murder in the second degree, id. §§ 110.00 & 125.25[1], and criminal possession of a weapon in the second degree, id. § 265.03. Torres was sentenced to consecutive terms of imprisonment of twenty-five years to life for the murder conviction and twelve and one-half to twenty-five years for the attempted murder conviction, to run concurrently with a term of imprisonment of seven and one-half years to fifteen years for the weapons possession conviction.

Torres's first direct appeal to the Appellate Division was denied on February 6, 1984. People v. Torres, 99 A.D.2d 933, 472 N.Y.S.2d 526 (2d Dep't 1984). Leave to appeal that decision to the New York Court of Appeals was denied on April 25, 1984. People v. Torres, 62 N.Y.2d 654, 476 N.Y.S.2d 1050, 464 N.E.2d 1001 (1984) (Jasen, J.). On October 11, 1984, Torres filed pro se in the United States District Court for the Eastern District of New York his first application for a writ of habeas corpus, which was denied on the merits. Torres v. Jones, No. CV-84-4223 (E.D.N.Y. May 22, 1985).

Torres then filed pro se a motion for a writ of error coram nobis, which the Appellate Division granted on November 22, 1988. Pursuant to that writ, on June 19, 1990, Torres, through counsel, filed a second appeal from the state judgment of conviction, asserting versions of the claims raised in the current proceedings. The Appellate Division again affirmed Torres's conviction in a decision and order dated June 3, 1991. People v. Torres, 174 A.D.2d 586, 571 N.Y.S.2d 89 (2d Dep't 1991). After being granted leave to do so, People v. Torres, 79 N.Y.2d 865, 588 N.E.2d 772, 580 N.Y.S.2d 737 (1992) (Alexander, J.), Torres appealed to the New York State Court of Appeals, which affirmed his conviction on October 20, 1992, People v. Torres, 80 N.Y.2d 944, 605 N.E.2d 354, 590 N.Y.S.2d 867 (1992).

In papers dated April 24, 1997, but filed on April 26, 1997, Torres, represented by counsel, again filed an application for a writ of habeas corpus under 28 U.S.C. § 2254 in the United States District Court for the Eastern District of New York. Torres then sought and received permission to withdraw this application on May 23, 1997. He then filed a motion in State Supreme Court to vacate his conviction under N.Y.Crim. Proc. Law § 440.10, which was denied on September 8, 1998.

On July 11, 2000, Torres, again acting pro se, re-filed the second § 2254 habeas petition, dated April 24, 1997, which had been prepared by his lawyer. In the petition, which is the subject of this appeal, Torres raised four claims: (1) that the trial court improperly delegated to a court officer the duty to respond to a jury question; (2) that the trial court erred by submitting to the jury a verdict sheet containing elements of the crimes charged; (3) that the trial court erroneously discharged a sworn juror in the defendant's absence; and (4) that the defendant was denied effective assistance of trial counsel.

After a hearing on February 26, 2002, the district court denied the petition on the merits. Torres v. Senkowski, No. 00-CV-3997, 2002 WL 732150 (E.D.N.Y. Mar. 8, 2002). The court held that the State had waived AEDPA's requirement that all second or successive § 2254 applications must be authorized by the appropriate court of appeals pursuant to 28 U.S.C. § 2244(b)(3)(A). Torres, 2002 WL 732150, at *1. The court also rejected, on tolling grounds, the State's arguments that the petition was not timely. Tr. of Feb. 26, 2002, Hr'g, at 7-8.

Torres, represented by counsel, appeals.

DISCUSSION

AEDPA imposes "stringent limits on a prisoner's ability to bring a second or successive application for a writ of habeas corpus." Adams v. United States, 155 F.3d 582, 583 (2d Cir.1998) (per curiam). AEDPA's gatekeeping provisions require that second and successive § 2254 applications be dismissed unless "the claim relies on a new rule of constitutional law, made retroactive ... by the Supreme Court" or presents facts that "could not have been discovered previously" and tend to show actual innocence. 28 U.S.C. § 2244(b)(2). Torres filed a first habeas application before AEDPA's effective date, and he filed the instant habeas application after AEDPA's effective date. We have not yet decided whether applying AEDPA's gatekeeping requirements in these circumstances would create an impermissible retroactive effect. See Roccisano v. Menifee, 293 F.3d 51, 56 (2d Cir.2002); Rodriguez v. Mitchell, 252 F.3d 191, 202 (2d Cir.2001). As in Roccisano and Rodriguez, however, we are not required to reach that question here. Irrespective of whether we apply the pre-AEDPA or post-AEDPA substantive standard, Torres's application would be treated procedurally as a motion for permission to file a second habeas application, and it would be denied. See Roccisano, 293 F.3d at 56-61; Rodriguez, 252 F.3d at 202.

I. Analysis Under the AEDPA Standard

Under AEDPA's authorization requirement for second and successive § 2254 applications, the district court should have transferred Torres's application to this Court, rather than deciding it on the merits. Corrao v. United States, 152 F.3d 188, 190-91 (2d Cir.1998); Liriano v. United States, 95 F.3d 119, 123 (2d Cir.1996) (per curiam). As we observed in Corrao, "reaching the merits of an uncertified second or successive § 2255 petition impermissibly circumvents the AEDPA's gatekeeping provisions." 152 F.3d at 191.

This case differs from Corrao in two respects, however. First, Corrao involved a motion by a federal prisoner under 28 U.S.C. § 2255, whereas Torres is a state prisoner and therefore filed his application under 28 U.S.C. § 2254. For these purposes, however, there is no material difference between § 2254 and § 2255. Cf. Liriano, 95 F.3d at 122 (establishing "the procedure to be followed when, as occurred in this case, a second or successive petition for habeas corpus by a state prisoner, or § 2255 motion by a federal prisoner, is filed in a district court in this circuit unaccompanied by the required § 2244(b)(3) motion"). The language of AEDPA indicates that AEDPA's authorization requirement applies equally to successive § 2254 applications and § 2255 motions.¹ For the same reasons a district court is required to transfer a second or successive motion under § 2255 to this Court, Corrao, 152 F.3d at 190-91, a district court therefore must also so transfer a second or successive § 2254 application.

Second, in contrast to Corrao, the district court in this case held that the State had "waived" the authorization requirement of 28 U.S.C. § 2244(b)(3)(A). We disagree. As we indicated in Corrao and Liriano, waiver is not permitted by AEDPA. AEDPA allocates jurisdiction to the courts of appeals, not the district courts, to authorize successive habeas motions or applications. For this reason, we have held that a district court must transfer uncertified successive motions to this Court pursuant to 28 U.S.C. § 1631, the provision authorizing transfer to cure want of jurisdiction. Liriano, 95 F.3d at 121-23.

This reading of AEDPA finds support in the holdings of other circuits.

No matter how powerful a petitioner's showing, only this court may authorize the commencement of a...