Smith v. Reardon, No. 9:2022cv00732 - Document 32 (N.D.N.Y 2023)
Court Description: DECISION AND ORDER: ORDERED that the Clerk respectfully send petitioner courtesy copies of respondent's limited answer, Dkt. No. 25; the Court's last two Orders, Dkt. Nos. 28 & 30; and the docket sheet. ORDERED that petitioner is grante d a final opportunity to reply to respondent's limited answer, consistent with the Court's prior orders. Failure to file a reply within thirty (30) days of this Order will result in petitioner forfeiting his opportunity to do so. Signed by Chief Judge Brenda K. Sannes on April 10, 2023. ( Notice of Compliance Deadline 5/11/2023){order and referenced documents served via regular mail on petitioner} (nas )
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Smith v. Reardon Doc. 32 Case 9:22-cv-00732-BKS Document 32 Filed 04/11/23 Page 1 of 4 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK PERRY F. SMITH, JR., Petitioner, v. 9:22-CV-0732 (BKS) REARDON, Superintendent, Respondent. APPEARANCES: OF COUNSEL: PERRY F. SMITH, JR. Petitioner, pro se 22-B-1570 Marcy Correctional Facility P.O. Box 3600 Marcy, NY 13403 HON. LETITIA JAMES Attorney for Respondent New York State Attorney General The Capitol Albany, New York 12224 MICHELLE ELAINE MAEROV, ESQ. Ass't Attorney General BRENDA K. SANNES Chief United States District Judge DECISION and ORDER Petitioner Perry Smith seeks federal habeas relief pursuant to 28 U.S.C. § 2254. Dkt. No. 1, Petition (seeking relief pursuant to 28 U.S.C. § 2241); Dkt. No. 6, Decision and Order, at 5, 7-8 (ordering either withdrawal or conversion of the original petition); Dkt. No. 7 at 1 (consenting to conversion); Dkt. No. 8, Decision and Order, at 2-3 (directing amendment of the petition); Dkt. No. 9, Amended Petition ("Am. Pet."). After an initial review, respondent was directed to answer the Amended Petition. Dkt. No. 10, Decision and Order. Dockets.Justia.com Case 9:22-cv-00732-BKS Document 32 Filed 04/11/23 Page 2 of 4 Respondent requested, and was granted, permission to file an answer limited to the issue of exhaustion. Dkt. No. 25, Letter Motion; Dkt. No. 26, T ext Order (granting request for a limited answer). Petitioner was given thirty days to file a reply. Dkt. No. 26, Text Order. Petitioner then filed two letters which seemed to request clarification of the procedural posture of the case. Dkt. Nos. 27 & 29. In similar Orders, the Court explained that petitioner could, if he so desired, file a reply addressing only those issues argued in respondent's limited answer. Dkt. Nos. 28 & 30. Petitioner recently sent a third letter. Dkt. No. 31, Letter. Liberally construing the submission, petitioner asserts that, since respondent f iled the limited answer in January of 2023, he has not received any of the filings from his habeas case. Id. At a minimum, petitioner claims he does not have copies of the limited response or the Court's last order "because they got sent to the wrong place[.]" Id. The Second Circuit has repeatedly held that where mail is "properly addressed and mailed . . . it is entitled to a presumption that . . . [it was] received." Akey v. Clinton County, New York, 375 F.3d 231, 235 (2d Cir 2004) (citing Meckel v. Continental Resources Co., 758 F.2d 811, 817 (2d Cir. 1985)); see also Hoffenburg v. C.I.R., 905 F.2d 665. 666 (2d Cir. 1990) ("A properly addressed piece of mail placed in the care of the Postal Service is presumed to have been delivered."). "Denial of receipt, without more, is insufficient to rebut the presumption." Akey, 375 F.3d at 235 (citing Meckel, 758 F.2d at 817 (explaining that "[t]here must [also] be . . . some proof that the regular . . . practice was not followed or was carelessly executed so the presumption that [the document] was mailed becomes unreasonable.")). 2 Case 9:22-cv-00732-BKS Document 32 Filed 04/11/23 Page 3 of 4 Here, petitioner has failed to rebut that presumption. Other than conclusory assertions, petitioner has provided no other proof that the respondent or this Court failed to properly mail the aforementioned documents. The docket demonstrates that petitioner has had frequent contact with the Court, as evidenced by the procedural history commencing and converting the action. Further, petitioner has filed a total of fourteen letters during its duration. Dkt. Nos. 4, 7, 12-14, 17, 20-22, 24, 27, 29, 31. It is only in the last few months that petitioner apparently has a problem; however, he has remained incarcerated at the same facility and provides no explanation for what did occur, or might have occurred, to result in him not receiving his mail despite it being sent to the same address to which it has always been sent. Further, none of the mailings have been returned by the post office as undeliverable. Therefore, the Court is not persuaded by petitioner's representations. However, given this was the first time that petitioner explicitly advanced this argument, in conjunction with the special solicitude offered to pro se petitioners, the Court will provide petitioner with one last opportunity to reply to the respondent's arguments. WHEREFORE, it is hereby ORDERED that the Clerk respectfully send petitioner courtesy copies of respondent's limited answer, Dkt. No. 25; the Court's last two Orders, Dkt. Nos. 28 & 30; and the docket sheet; and it is further ORDERED that petitioner is granted a final opportunity to reply to respondent's limited answer, consistent with the Court's prior orders. Failure to file a reply within thirty (30) days of this Order will result in petitioner forfeiting his opportunity to do so; and it is further ORDERED that the Clerk serve a copy of this Decision and Order on the parties in 3 Case 9:22-cv-00732-BKS Document 32 Filed 04/11/23 Page 4 of 4 accordance with the Local Rules. Dated: April 10, 2023 Syracuse, New York 4
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