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Garcia v. Superintendent of Great Meadow Correctional Facility

United States Court of Appeals, Second Circuit

November 10, 2016

Jesus H. Garcia, Petitioner,
v.
Superintendent of Great Meadow Correctional Facility, Respondent.

          Submitted: October 17, 2016

         Petitioner Jesus H. Garcia moves for leave to file a successive 28 U.S.C. § 2254 petition challenging his 2009 New York conviction for burglary and sexual abuse. His three prior § 2254 petitions challenging that judgment were dismissed as incomprehensible. We hold that those dismissals were "on the merits, " thus triggering, for purposes of the § 2254 petition he now seeks to file, the requirements applicable to successive § 2254 petitions. Additionally, because Garcia's proposed petition does not satisfy the successive-petition standards, we DENY his motion for leave to file it.

          Jesus H. Garcia, pro se, Malone, New York, for Petitioner.

          Lisa Ellen Fleischmann, Assistant Attorney General, New York State Office of the Attorney General, New York, New York, for Respondent.

          Before: Kearse, Jacobs, and Lohier, Circuit Judges.

          PER CURIAM.

         Jesus H. Garcia, pro se, moves for leave to file a successive 28 U.S.C. § 2254 petition challenging his 2009 New York conviction for burglary and sexual abuse. He has previously filed multiple § 2254 petitions challenging that conviction, each of which was dismissed as incomprehensible. The preliminary question is whether such dismissals are "on the merits, " thus making his proposed § 2254 petition "successive."

         We hold that an order denying a § 2254 petition as incomprehensible is "on the merits" for the purposes of the successive-petition requirements if the petitioner was on notice that the district court considered the § 2254 petition to be incomprehensible, and had an opportunity to cure the defect. For the reasons stated in this opinion, we DENY Garcia's motion for leave to file.

         BACKGROUND

         In 2013, Garcia filed a § 2254 petition challenging his 2009 New York conviction for burglary and sexual abuse. Although legible, the petition was incomprehensible in the critical respect that it was impossible to discern Garcia's claims. The district court ordered Garcia to amend, explaining that the petition as originally filed was "indecipherable" and therefore failed to state a claim. After Garcia failed to amend, the district court dismissed the petition as incomprehensible, and this Court denied a certificate of appealability.

         Before expiration of the time to seek Supreme Court review of this Court's order, Garcia filed two additional § 2254 petitions in district court. Since adjudication of Garcia's first § 2254 petition was not yet final, those petitions were not successive within the meaning of § 2244(b). See Hom Sui Ching v. United States, 298 F.3d 174, 177 (2d Cir. 2002) (noting that a new § 2255 petition is not successive until adjudication of a prior § 2255 petition is "final"); Whab v. United States, 408 F.3d 116, 120 (2d Cir. 2005) (adjudication is "final" when opportunity to seek Supreme Court review has expired). The district court dismissed both petitions as incomprehensible. Garcia appealed one of those two dismissals, and this Court dismissed that appeal for failure to move for a certificate of appealability. Garcia did not appeal the other dismissal.

         In 2016, Garcia filed the present motion for leave to file a successive § 2254 petition. Although it appears Garcia is again attempting to challenge his 2009 burglary and sexual abuse conviction, his specific arguments cannot be discerned.

         DISCUSSION

         Under § 2244, a district court may consider a successive § 2254 petition only if the petitioner first obtains an order from this Court authorizing the filing of that petition. See 28 U.S.C. § 2244(b)(3). However, before determining whether to grant leave to file a successive § 2254 petition, this Court must consider whether the proposed petition would indeed be successive. See Vu v. United States, 648 F.3d 111, 113 (2d Cir. 2011). Generally speaking, a ยง 2254 petition is successive if a prior petition challenged the ...


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