UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK
June 10, 2010
LESLIE BECKER, PLAINTIFF,
HON. DAVID A. PATERSON, DEFENDANT.
The opinion of the court was delivered by: Norman A. Mordue, Chief U.S. District Judge
MEMORANDUM-DECISION AND ORDER
On March 25, 2010, judgment was entered (Dkt. No. 33) dismissing plaintiff's pro se 42 U.S.C. § 1983 complaint. Presently before the Court are plaintiff's motions for reconsideration (Dkt. No. 34) and conversion of the complaint to a habeas corpus petition (Dkt. No. 38).
Reconsideration is denied. Plaintiff fails to demonstrate any intervening change in controlling law, previously unavailable evidence, clear error of law, manifest injustice, or other basis for reconsideration. See Doe v. N.Y. City Dep't of Social Servs., 709 F.2d 782, 789 (2d Cir. 1983).
The Court denies plaintiff's request to convert his section 1983 complaint to a habeas corpus petition under 28 U.S.C. § 2254. Plaintiff has not exhausted his state court remedies; as of this date, the New York Court of Appeals has not resolved plaintiff's application for leave to appeal from the Third Department's affirmance of his re-sentencing. See People v. Becker, 899 N.Y.S.2d 408 (3d Dept. 2010). Moreover, the defendant here, Governor Patterson, is not the proper respondent in a habeas corpus proceeding; the proper respondent is the prisoner's custodian, typically the warden of the prison in which the prisoner resides. See Rumsfeld v. Padilla, 542 U.S. 426, 434 (2004). The Court notes also that granting the conversion motion would not expedite this matter because the Court would have to give plaintiff an opportunity to withdraw or amend the pleading after notifying him that section 2244(b)(2) would likely preclude federal review of claims not raised therein.*fn1 See Cook v. New York State Div. of Parole, 321 F.3d 274, 281 (2d Cir. 2003). Finally, because he was granted in forma pauperis status, plaintiff has not paid the filing fee and thus will not suffer monetary loss by having to commence a new proceeding. Accordingly, once he has exhausted his state court remedies, plaintiff may, if he so desires, commence a section 2254 habeas corpus proceeding against his custodian. Plaintiff is advised that once he brings a section 2254 proceeding, any subsequent section 2254 petition will be subject to the restrictions on "second" or "successive" petitions set forth in 28 U.S.C. § 2244(b). See Cook, 321 F.3d at 281.
It is therefore ORDERED that plaintiff's motion for reconsideration (Dkt. No. 34) is denied; and it is further
ORDERED that plaintiff's motion to convert his complaint to a habeas corpus petition (Dkt. No. 38) is denied.
IT IS SO ORDERED.