The opinion of the court was delivered by: Kimba M. Wood, U.S.D.J.
MEMORANDUM OPINION AND ORDER
Pro se Petitioner Lasyah M. Palmer seeks a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, to modify the calculation of his jail time by the New York State Department of Correctional Services ("DOCS"). By report and recommendation dated July 5, 2006 (the "Report"), Magistrate Judge Ronald L. Ellis recommended that this Court grant Respondent's motion to dismiss. For the reasons explained below, this Court agrees with the Report, and the petition is dismissed.
Petitioner was convicted of first-degree robbery in 1992 and sentenced to three concurrent indeterminate terms of four to eight years. He was released on parole in March 1996. Two months later, the Department of Parole declared him delinquent for committing new offenses. Petitioner was convicted of first- degree robbery, second-degree kidnaping, second- and fourth-degree grand larceny, second-degree burglary, and third-degree criminal possession of a weapon. He was sentenced on July 21, 1997, to concurrent terms of twenty years, twenty years, seven-and-one-half to fifteen years, two to four years, fifteen years, and seven years, respectively. His conviction was affirmed. People v. Palmer, 693 N.Y.S.2d 539 (App. Div.), leave denied, 93 N.Y.2d 1024, cert. denied, 528 U.S. 1051 (1999).
On July 28, 2000, Petitioner filed an application for habeas corpus, pursuant to 28 U.S.C. § 2254, raising a variety of constitutional challenges to his conviction. Magistrate Judge Ellis recommended that the petition be dismissed, Palmer v. Greiner, No. 00 Civ. 6677 (WHP) (RLE), 2003 U.S. Dist. LEXIS 14974 (S.D.N.Y. Aug. 22, 2003), and the Court accepted the recommendation on March 29, 2004. On May 20, 2005, the Second Circuit denied Petitioner's motion for a certificate of appealability ("COA").
Petitioner wrote to DOCS on December 15, 2003, arguing principally that he should have received credit on his current sentence for four years of time served on his 1992 conviction. On April 21, 2004, DOCS responded in writing, rejecting his argument. Petitioner commenced an Article 78 proceeding in the Supreme Court, Dutchess County, on May 19, 2004. The Supreme Court dismissed his petition; the Appellate Division denied leave to proceed in forma pauperis, and the Court of Appeals refused to reconsider by order dated April 28, 2005. Palmer v. N.Y. State Dep't of Corr. Servs., 4 N.Y.3d 848 (2005).
On May 16, 2005, Petitioner filed a petition for habeas corpus in the Eastern District of New York. By order dated July 28, 2005, the court directed him to submit an amended petition that clearly specified the desired relief. Petitioner did so on August 17, 2005. That petition alleged that (1) the Appellate Division's rejection of Petitioner's application to proceed in forma pauperis amounted to an unconstitutional denial of access to the courts; (2) DOCS's refusal to credit Petitioner with jail time served on his 1992 conviction denied him equal protection of the laws; and (3) New York Penal Law § 70.25(2-a) is "unconstitutionally ambiguous." On October 12, 2005, the court held that Petitioner's claims about the denial of in forma pauperis status were not reviewable. The court construed the remaining claims as a petition for habeas corpus pursuant to 28 U.S.C. § 2241, and it transferred the petition to the Southern District of New York.
On December 12, 2005, Petitioner filed an amended version of the instant petition, which maintains his challenge to his jail-time calculation but withdraws the claims relating to his in forma pauperis status. Respondent moved to dismiss the petition. Magistrate Judge Ellis's Report recommended that Respondent's motion be granted. Palmer v. Phillips, No. 05 Civ. 9894 (KMW) (RLE), 2006 U.S. Dist. LEXIS 46416 (S.D.N.Y. July 5, 2006).
I. The Petition Properly Arises Under § 2254
The Report concluded that the Eastern District erred in recharacterizing Petitioner's challenge to his sentence as a petition for habeas corpus under 28 U.S.C. § 2241. This Court agrees. The Second Circuit has held that where a state prisoner challenges the calculation and application of his sentence by a state department of corrections, the petition is properly brought under 28 U.S.C. § 2254, not § 2241. James v. Walsh, 308 F.3d 162, 167 (2d Cir. 2002).
Petitioner objects that this Court cannot consider his petition under § 2254 without giving him an opportunity to withdraw or amend it, citing Castro v. United States, 540 U.S. 375 (2003). In Castro, the Supreme Court barred the lower court from recharacterizing, without warning, a pro se motion for a new trial as a petition for habeas corpus.*fn1 The Court noted that such a recharacterization "may make it significantly more difficult for that litigant to file another such motion" and that unfairness might result "unless the court first warns the pro se litigant about the consequences of the recharacterization." Castro, 540 U.S. at 382. Here, by contrast, Petitioner initially filed his petition under § 2254; he cannot now complain that he had no warning that the Court might indeed consider his petition according to the rules governing § 2254 petitions. Moreover, Castro applies only where the recharacterized petition would be a petitioner's first habeas filing, lest subsequent petitions be barred as "second or successive." Id. at 383. Because this is not Petitioner's first § 2254 petition, he has already triggered any applicable "second or successive" bar, and so consideration under § 2254 will add no further adverse consequences for any future petition.
II. The Petition Is Not "Second or Successive"
The Report concluded that the petition should be denied as a "second or successive" habeas petition. 28 U.S.C. § 2244(b). The district court denied Petitioner's first petition on March 29, 2004, and it refused to issue a COA. The Second Circuit denied Petitioner's motion for a COA on May 20, 2005. The instant petition was filed May 16, 2005, four days before the Second Circuit denied him a COA on his first petition. The instant petition is thus not subject to the procedural and substantive limitations governing "second or successive" habeas petitions. Whab v. United States, 408 F.3d 116, ...