 09-0210-pr
 Adams v. Corcoran


                               UNITED STATES COURT OF APPEALS
                                   FOR THE SECOND CIRCUIT

                                         SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY THIS COURT’S
LOCAL RULE 32.1.1 AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1. WHEN CITING A
SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE
FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”).
A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED
BY COUNSEL.

         At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
 Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
 on the 25th day of March, two thousand eleven.

 Present:            AMALYA L. KEARSE,
                     ROSEMARY S. POOLER,
                     PETER W. HALL,
                                Circuit Judges.

 _____________________________________________________

 JERRY ADAMS,
                                                         Petitioner-Appellant,

                             -v-                                        09-0210-pr

 MICHAEL CORCORAN,

                                                         Respondent-Appellee.


 Appearing for Appellant:          Jane S. Meyers, Law Offices of Jane S. Meyers, Brooklyn, NY.

 Appearing for Appellee:           Lisa E. Fleischmann, Assistant Attorney General, (Barbara D.
                                   Underwood, Solicitor General, Roseann B. MacKechnie, Deputy
                                   Solicitor General for Criminal Matters, on the brief), for Andrew
                                   Cuomo, Attorney General of the State of New York, New York,
                                   NY.

        Appeal from the United States District Court for the Northern District of New York
 (Singleton, J.).
     ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of said District Court be and it hereby is VACATED.

        Petitioner-Appellant Jerry Adams (“Adams”) appeals the December 9, 2008, decision
issued by Judge Singleton of the United States District Court for the Northern District of New
York granting Petitioner’s writ of habeas corpus pursuant to 28 U.S.C. § 2254. We vacate that
judgment, as we find that the district court was without jurisdiction to entertain the habeas
petition. We assume the parties’ familiarity with the underlying facts, procedural history, and
specification of issues for review.

        Adams’s application for the writ of habeas corpus that is the subject of the instant appeal
indicates that Adams had previously filed a habeas petition in 1997 in the United States District
Court for the Eastern District of New York, asserting claims of, inter alia, perjury, ineffective
assistance of counsel, prosecutorial misconduct during summation, and erroneous information at
sentencing. That petition was denied in an unpublished opinion filed on August 2, 1999. See
Adams v. Artuz, No. 97-CV-2343, at 7 (E.D.N.Y. July 29, 1999) (noting that it “address[ed] the
merits of the petition” which it ultimately decided to deny).

        We must therefore presently address whether Adams’s instant petition is a “second or
successive” petition under § 2254, triggering the gatekeeping provisions of the Antiterrorism and
Effective Death Penalty Act (“AEDPA”). “Under the abuse-of-the-writ doctrine, a subsequent
petition is ‘second or successive’ when it raises a claim that was, or could have been, raised in an
earlier petition.” James v. Walsh, 308 F.3d 162, 167 (2d Cir. 2002). While not every
numerically second petition is considered a second or successive one, “a dismissal on the merits .
. . renders any subsequent petition second or successive within the meaning of AEDPA.” Muniz
v. United States, 236 F.3d 122, 127 (2d Cir. 2001) (internal quotation marks omitted).

         Adams was convicted and sentenced in state court in 1989. Adams had two prior
convictions. Adams’s instant petition alleges a violation of due process based on the decision by
DOCS that his 1989 sentence runs consecutively to his previous undischarged sentences, where
the judge was silent on the issue. The DOCS “Parole Date Computation” records show that
Adams’s 1989 sentence was treated as consecutive to Adams’s previous undischarged sentences.
The time computations show minimum and maximum release dates that reflect service of the full
length of Adams’s 1989 sentence, and the second line of these records includes the heading
“NEW CONSEC TERM.” The earliest time computation record for Adams is dated March 2,
1990.

         The State indicates that the time computation records “were contained in [Adam’s]
institutional file at Woodbourne Correctional Facility,” which is where Adams is currently
confined. Thus, a challenge to the treatment of Adams’s 1989 sentences as consecutive to his
prior, undischarged sentences, was available to Adams as early as March 2, 1990, that is, well
before the filing of his initial 1997 petition. See generally James, 308 F.3d at 166-67 (noting
that a state prisoner’s federal challenge to the execution of his sentence is properly made under §
2254, not under the traditional habeas statute, 28 U.S.C. § 2241). Accordingly, Adams’s instant
habeas petition is second or successive; before the district court could properly entertain it,
Adams was required to apply for, and receive, an order from this Court authorizing the district
court to consider the petition. See 28 U.S.C. § 2244(b)(3)(A). We deem the district court to
have transferred the matter to this Court for that purpose.

                                                 2
        Under 28 U.S.C. § 2244(b)(2)(B)(i), we may authorize Adams to file a second habeas
application with the district court if we determine that his application makes a prima facie
showing that “the factual predicate for the claim could not have been discovered previously
through the exercise of due diligence.” The State asserts that the DOCS time computations are
“provided, as a matter of routine, to the inmate.” Adams does not demonstrate, nor does the
record reveal how, with due diligence, he could not have discovered his present claim in time to
include it in his first habeas petition of 1997.

        Having construed the appeal before us as a motion for authorization to file a second
habeas petition under § 2254, we now deny it, as Adams has failed to meet the necessary
standard. See 28 U.S.C. § 2244(b)(2)(B)(i). The district court was thus without jurisdiction to
entertain Adams’s 2007 petition, and its judgment must be vacated.

        Accordingly, the judgment of the district court hereby is VACATED for lack of
jurisdiction.


                                                    FOR THE COURT:
                                                    Catherine O’Hagan Wolfe, Clerk




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