The opinion
C/M
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
wn eee X
PAMELA HANSON, :
: MEMORANDUM DECISION AND
Petitioner, : ORDER
- against - : 23-cv-6847 (BMC)
GOVERNOR HOCHUL and PRESIDENT :
USA, :
Respondent. :
wn eee X
COGAN, District Judge.
Petitioner seeks habeas corpus relief under 28 U.S.C. § 2254 from her 2016 conviction
for second degree murder and fourth degree grand larceny in Kings County, New York. She
previously sought this same relief on the same grounds in the Northern District of New York,
where Judge Brenda K. Sannes denied it on the merits. Hanson v. Hochul, No. 23-cv-822, 2023
WL 5350989 (N.D.N.Y. Aug. 21, 2023). As Judge Sannes explained, petitioner is not
challenging the proceedings that led to her conviction, but, rather, she wants a decision on her
clemency petition from the Governor of New York.! She asserts that she filed that clemency
petition in March 2023 and believes she is entitled to have it determined by now.
Judge Sannes considered whether, instead of denying the petition, the proceeding before
her should be transferred to this district, where plaintiff's conviction occurred, or the Western
District of New York, where her executive clemency proceeding is pending. Judge Sannes
' Despite the caption of this proceeding, it does not appear that petitioner has sought relief from the executive branch
of the federal government, and in any event, the President has no authority to commute state court sentences. See
United States Constitution Article I, Section 2, Clause 1 (limiting pardon and commuting power to “Offenses
against the United States ...”.
decided that although venue before her was improper, transfer was not appropriate because it is
well settled that “clemency proceedings are not part of the trial – or even of the adjudicatory
process … They are conducted by the executive branch, independent of direct appeal and
collateral relief proceedings,” Hanson, 2023 WL 5350989, at *2 (quoting Trisvan v. Ercole, No.
07-cv-4673, 2007 WL 4224815, at *1 (E.D.N.Y. Nov. 27, 2007) (internal quotation marks and
citations omitted). Because the invocation of that executive power is entirely discretionary with
the state, McKithen v. Brown, 626 F.3d 143, 151-52 (2d Cir. 2010), petitioner “cannot challenge
the constitutionality of any procedures available to vindicate an interest in state clemency.” Dist.
Attorney's Off. for Third Jud. Dist. v. Osborne, 577 U.S. 52, 67-68 (2009) (cleaned up). Judge
Sannes recognized that although the usual procedure for an improperly venued case is transfer to
the proper venue, dismissal is appropriate when the case is plainly without merit.
Although plaintiff has recommenced her proceeding in the proper district court, it fails
again for the same reason that Judge Sannes stated: Section 2254 does not allow a district court
to order the Governor of New York to decide a clemency petition. Filing it in the proper forum
does not create a claim where there never was one.
The only remaining question is whether I should transfer the instant proceeding to the
Second Circuit as a “second or successive” habeas corpus proceeding under 28 U.S.C. §§ 1631
and 2244(b)(3), her proceeding before Judge Sannes having been the first. A transfer is not
necessary if the petition is plainly without merit, see Santiago v. United States, 222 F. Supp. 3d
353 (S.D.N.Y. 2016), and that is the case here.
I need not provide petitioner with another opportunity to be heard on whether review of
executive clemency proceedings is within the scope of habeas corpus because she already has
had notice that it is not, as that was the basis of Judge Sannes’ decision, and petitioner has failed
to address that point in her refiling here. Accordingly, the petition is denied and the case is
dismissed. No certificate of appealability shall issue under 28 U.S.C. § 2253(c)(1)(A) because
"the applicant has [not] made a substantial showing of the denial of a constitutional right." 28
U.S.C. § 2253(c)(2). In forma pauperis status is denied for purposes of an appeal as an appeal
would not be taken in good faith. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
SO ORDERED.
Brean VW. Cogan
Dated: Brooklyn, New York
September 17, 2023