The opinion of the court was delivered by: David N. Hurd United States District Judge
A Petition for a Writ of Habeas Corpus brought by petitioner Gregory Boomer ("petitioner" or "Boomer") pursuant to 28 U.S.C. § 2241, together with an application to proceed in forma pauperis, and an application for release or bail, was filed in the Western District of New York on June 2, 2008. Dkt. Nos. 1-3, 7. Pursuant to a Decision and Order dated June 13, 2008, the case was transferred from the Western District to this District. Dkt. No. 4. Petitioner is presently confined at the Attica Correctional Facility and has not paid the required filing fee.
In his petition, Boomer complains of a judgment of conviction rendered in Albany County Court on May 12, 1994. After a jury trial, petitioner was found guilty of attempted murder (three counts), second and third degree criminal possession of a weapon, first degree reckless endangerment (three counts), attempted aggravated assault (three counts), and fifth degree criminal possession of a controlled substance. Dkt. No. 1, at 2. Boomer states that he was sentenced to a term of "82 1/2 years to life" in prison. Id. The Appellate Division, Third Department, is alleged to have affirmed this conviction on August 15, 1996, and the Court of Appeals is claimed to have denied petitioner leave to appeal on December 31, 1996. Id. at 3. Boomer also states that he filed several motions for collateral relief, including a writ of error coram nobis on March 7, 1998 (Id. at 4), a petition for a writ of habeas corpus under "28 USC. [sic] 2244(b)" in the United States Court of Appeals on November 11, 2005 (Id. at 5), an "Extraordinary Writ" in the United States Supreme Court on July 6, 2007 that was denied on October 1, 2007 (Id. at 5), and a "New York State Habeas Corpus" in May or June 2007 (Id. at 9).
In this petition, Boomer claims, generally, that: (1) the state court lacked jurisdiction over him; (2) the indictment was jurisdictionally defective; (3) no valid certificate of conviction has been issued; (4) his sentence is illegal; and (5) the prosecutor's declaration of readiness for trial was illusory. Dkt. No. 1, 7a, 8a-e. He further asserts that his constitutional rights have been violated because the state courts refuse to respond to his state court filings, including a state habeas corpus, in which he argues similar claims. See Dkt. No. 1 at 21, ¶¶11-15. For a more complete statement of Boomer's claims, refer to the petition.
Boomer previously filed a habeas petition on May 20, 1998, in which he challenged the same conviction that he attacks in his current petition. Boomer v. Kelly, No. 98-CV-808, Dkt. No. 1. In the previous application, Boomer argued that his appellate attorney was ineffective for not raising several claims concerning the effectiveness of his trial attorney and in not seeking reversal of his conviction in the interest of justice. SeeBoomer, No. 98-CV-808, Dkt. Nos. 1, 15. The petition was referred to Magistrate Judge David R. Homer, who, after determining that the petition lacked merit, recommended denying the petition in a Report and Recommendation dated April 12, 1999. SeeBoomer, No. 98-CV-808, Dkt. No. 15. The recommendation was adopted, and the petition was ordered denied and dismissed on June 13, 2000. Id. at Dkt. Nos. 26-27. Boomer's application for a certificate of appealability was denied by the Second Circuit on or about May 21, 2001. Id. at Dkt. No. 37.
Thereafter, petitioner apparently moved the United States Court of Appeals for the Second Circuit for an order authorizing this Court to consider a second or successive petition, which was denied by the Second Circuit on or about February 1, 2006. See Boomer, 98-CV-808, Dkt. No. 39.
III. Petition Brought Under 28 U.S.C. § 2241
Boomer is adamant that his pending petition should be considered pursuant to 28 U.S.C. § 2241(a), (c)(3) and 28 U.S.C. § 1651,*fn1 and not 28 U.S.C. § 2254. See Dkt. Nos. 1, 6. The fact that Boomer has invoked section 2241 does not require the Court to so construe it. Rather," 'it is the substance of the petition, rather than its form, that' governs." Cook v. New York State Div. of Parole, 321 F.3d 274, 278 (2d Cir. 2003)(quoting James v. Walsh, 308 F.3d 162, 166 (2d Cir. 2002)).
While section 2241 and section 2254 have overlapping language, the provisions address different claims. Section 2241 provides that "the Supreme Court, any justice thereof, the district courts and any circuit judge within their respective jurisdictions" may grant a writ of habeas corpus to a petitioner "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(a), (c)(3). That section generally permits federal prisoners to challenge the execution of a sentence, including the computation of the sentence and parole decisions, rather than the imposition of that sentence or the underlying federal conviction under section 2255. Cook, 321 F.3d at 278; Guerra v. United States, No. 07-CV-346, 2007 WL 1176027, at *1 (N.D.N.Y. Apr. 19, 2007)(Scullin, S.J.).*fn2 State prisoners, in contrast, must bring challenges both to the execution of a sentence and to underlying convictions under section 2254, which governs petitions filed by "a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a); see Cook, 321 F.3d at 278; Wright v. Smith, 2007 WL 2412248, at *4 n. 7 (N.D.N.Y. Aug. 21, 2007)(Hurd, J, adopting Report - Recommendation of Lowe, M.J.).
Boomer is plainly disputing his continued custody pursuant to a state court conviction, a challenge properly brought under section 2254. Cook, 321 F.3d at 278 (finding that state prisoner's challenge to parole revocation was properly brought under section 2254, and noting that "if an application that should be brought under 28 U.S.C. § 2254 is mislabeled as a petition under section 2241, the district court must treat it as a section 2254 application instead"); see Wright, 2007 WL 2412248, at *4 & n.7 (a petitioner challenging continuing custody pursuant to a state court conviction must seek relief pursuant to section 2254 and not section 2241); Maldonado v. Savage, No. 07-CV-0106A, 2007 WL 952043, at *1 (W.D.N.Y. Mar. 28, 2007)(challenge to execution of state prisoner's challenge must be brought under section 2254). Boomer's petition must therefore be construed as one brought under section 2254.
IV. Conversion of Petition
Ordinarily, before a habeas petition brought under section 2241 may be properly converted into a section 2254 petition, the petitioner must be given notice of the district court's intent to convert the petition and an opportunity to consent to the conversion or to withdraw the petition rather than having it converted. Cook, 321 F.3d at 282; Adams v. United States, 155 F.3d 582 (2d Cir.1998) (per curiam)(Adams I). This notice requirement was originally developed in the context federal habeas petitions. If the district court converted a motion filed under some other provision into a section 2255 petition, "the movant's one chance at § 2255 relief would be used up - without the movant's consent and despite the movant's possible ignorance of the consequences." Simon v. United States, 359 F.3d 139, 141 (2d Cir. 2004); see Adams I, 155 F.3d at 584 ("A prisoner convicted pursuant to unconstitutional proceedings might lose the right to have a single petition for habeas corpus adjudicated, solely by reason of a district court's having incorrectly recharacterized some prior motion as one brought under § 2255."). Thus, the Second Circuit held that the petitioner must be warned that any subsequent section 2255 petition would be subject to the gate keeping restrictions on second or successive petitions. The Supreme Court affirmed this reasoning in Castro v. United States, 540 U.S. 375, 383 (2003), holding that when a district court recharacterized a pro se petitioner's motion "as a first § 2255 motion[,]" the court must "notify the pro se litigant that it intends to recharacterize the pleading, warn the litigant that this recharacterization means that any subsequent § 2255 motion will be subject to the restrictions on "second or successive" motions, and provide the litigant an opportunity to withdraw the motion or to amend it so that it contains all the § 2255 claims he believes he has." ...