United States District Court, W.D. New York
June 9, 2005.
ARTHUR MOORE, Petitioner,
MONROE COUNTY, New York, and STEPHEN T. MILLER, Prosecutor, Respondent.
The opinion of the court was delivered by: JOHN T. ELFVIN, Senior District Judge
MEMORANDUM and ORDER
On April 7, 2005, plaintiff filed in the United States District
Court for the District of Arizona a complaint pursuant to
42 U.S.C. § 1983 presumably alleging that he was unlawfully
convicted in Monroe County, New York and that New York or Monroe
County officials violated the Interstate Agreement on Detainers.
On May 24, 2005, the United States District Court for the
District of Arizona transferred the instant matter to this Court
pursuant to 28 U.S.C. § 1406(a) because the District of Arizona
was not a proper venue. See 28 U.S.C. § 1391(b).
On May 30, 2005, the Clerk of the Court received correspondence
from plaintiff advising him that he intended to file a habeas
corpus petition and that he wants this matter to be considered a
habeas corpus petition.*fn1 While it is apparent to this
Court that plaintiff intended to file a habeas corpus petition
pursuant to 28 U.S.C. § 2254, he utilized a form complaint
supplied by the District Court of Arizona and, therefore, the
complaint was opened as titled i.e., an action under
42 U.S.C. § 1983. Generally, before a matter can be recharacterized as a habeas
corpus petition pursuant to 28 U.S.C. § 2254, the Court has to
give notice to the putative petitioner of the gate-keeping
mechanism of 28 U.S.C. § 2244(b), which places strict limits on
the filing of second or "successive" petitions challenging the
same conviction, and provide the putative petitioner the
opportunity to withdrawal the petition if he does not want it to
be recharacterized as a habeas corpus petition under § 2254. See
Cook v. New York State Div. of Parole, 321 F.3d 274 (2d Cir.
2003); Adams v. United States, 155 F.3d 582 (2d Cir. 1998) (per
curiam). In the present situation, however, plaintiff has
specifically asked the Court to treat his form complaint as a
habeas corpus petition and, therefore, the Court finds that it is
not required to give petitioner notice of the gate-keeping
mechanism of § 2244(b) nor provide him the opportunity to
withdrawal the complaint prior to its recharacterization.
Accordingly, the Court will direct that this complaint be
recharacterized as a habeas corpus petiton pursuant to
28 U.S.C. § 2254.*fn2
IT IS HEREBY ORDERED, as follows:
1. Permission to proceed as a poor person is granted and the
Clerk of the Court is directed to recharacterize the instant
complaint as a petition for habeas corpus relief pursuant to
28 U.S.C. § 2254. 2. Pursuant to Rules 4 and 5 of the Rules Governing Section
2254 Cases in the United States District Courts, respondents
shall file an answer to the petition with the Clerk of Court (and
also serve a copy upon petitioner) no later than July 25, 2005.
The answer shall respond to the allegations of the petition and
shall state, as to every ground raised by petitioner, whether
petitioner has exhausted state remedies, including any available
post-conviction remedies. If any ground is alleged not to have
been exhausted, respondent shall identify such ground and
expressly state whether it waives petitioner's requirement to
exhaust. Further, the answer shall address who is the proper
respondent in this matter and whether the petitioner is now "in
custody" pursuant to a judgment of the State of New York, and
shall state whether a trial or any pre-trial or post-trial
evidentiary proceeding was conducted. If any such proceeding was
conducted, under the authority of Rule 4, the Court hereby
directs respondents to provide to the Court the transcript of the
proceeding, together with any record(s) of such proceeding, and
such documents will be filed in the official record of this case.
Respondents also shall file by the above date a memorandum of
law with the Clerk of Court (and also serve a copy upon
petitioner) addressing each of the issues raised in the petition
and including citations of relevant supporting authority.
Within thirty (30) days of the date this order is served upon
the custodian of the records, the Court Clerk or any other
official having custody of the records of the proceedings in
Court at issue now before this Court shall submit such records to
respondents or the respondents' duly authorized representative.
If petitioner appealed from the judgment of conviction or from
an adverse judgment or order in a post-conviction proceeding,
under the authority of Rule 4, the Court hereby directs respondents to provide to the Court a copy of the
briefs on appeal and the opinions of the appellate courts, if
any, and such documents will be filed in the official record of
Petitioner shall have thirty (30) days upon receipt of the
answer to file a written response to the answer and memorandum of
Within thirty (30) days of the date this order is filed with
the Clerk of Court, respondents may file a motion for a more
definite statement or a motion to dismiss the petition,
accompanied by appropriate exhibits which demonstrate that an
answer to the petition is unnecessary. The timely filing of such
motion shall extend the time for filing an answer for fourteen
(14) days, but the failure of the Court to act upon the motion
within that time shall not further extend the time for filing an
3. The Clerk of Court shall serve a copy of the petition
(complaint), together with a copy of this order, by certified
mail, upon the Assistant Attorney General in Charge, Statler
Towers, 4th Floor, 107 Delaware Avenue, Buffalo, New York 14202
and the District Attorney of Monroe County.
PETITIONER MUST FORWARD A COPY OF ALL FUTURE PAPERS AND
CORRESPONDENCE TO THE ATTORNEY APPEARING FOR RESPONDENTS.