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Donald Garver v. Superintendent Oneida Correctional Facility

July 28, 2011

DONALD GARVER, PETITIONER,
v.
SUPERINTENDENT ONEIDA CORRECTIONAL FACILITY RESPONDENT.



The opinion of the court was delivered by: Honorable Michael A. Telesca United States District Judge

DECISION AND ORDER

I. Introduction

Pro se Petitioner Donald Garver("Petitioner") has filed a timely petition for a writ of habeas corpus under 28 U.S.C. § 2254 challenging the constitutionality of his custody pursuant to a judgment entered November 18, 2008, in New York State, Supreme Court, Monroe County, convicting him, upon a plea of guilty, of three counts of Burglary in the Second Degree. Petitioner was subsequently sentenced to a six year term of imprisonment.

For the reasons stated below, habeas relief is denied and the petition is dismissed.

II. Factual Background and Procedural History

On November 18, 2008, Petitioner was convicted, upon a plea of guilty, to three counts of second degree burglary. He was subsequently sentenced, as promised, to a six year term of imprisonment. See Pet. ¶¶ 3, 4; Resp't Answer ¶¶ 2, 3.

Petitioner did not move to withdraw his guilty plea and did not pursue a direct appeal of his conviction.*fn1 See Pet. ¶ 8; Resp't Answer ¶¶ 2, 6.

On or about June 19, 2009, Petitioner moved, pursuant to N.Y. Crim. Proc. Law ("CPL") § 440.10, to vacate his judgment of conviction. See Resp't App. A. On July 29, 2009, by letter decision, the Monroe County Supreme Court denied Petitioner's motion. See Resp't App. C. Leave to appeal was denied. See Resp't App. F.

On or about March 17, 2010, Petitioner filed the instant habeas corpus petition, seeking relief on the following grounds:

(1) various Fourth Amendment violations;*fn2 and (2) ineffective assistance of trial counsel. See Pet. ¶ 12A-B (Dkt. No. 1); Traverse [Tv.] at 3-4 (Dkt. No. 9).

On or about March 2, 2011, Petitioner filed a motion to transfer to a different correctional facility. Dkt. No. 11. That motion is not properly the subject of this § 2254 petition. The Supreme Court has stated that:

Federal law opens two main avenues to relief on complaints related to imprisonment: a petition for habeas corpus, 28 U.S.C. § 2254, and a complaint under the Civil Rights Act of 1871, Rev. Stat. § 1979, as amended, 42 U.S.C. § 1983. Challenges to the validity of any confinement or to particulars affecting its duration are the province of habeas corpus, Preiser v. Rodriguez, 411 U.S. 475, 500 (1973); requests for relief turning on circumstances of confinement may be presented in a § 1983 action.

Muhammad v. Close, 540 U.S. 749, 750 (2004). Petitioner's motion to transfer to a different correctional facility is not a challenge to the validity of his confinement. Rather, it regards the circumstances of his confinement. Accordingly, Petitioner's motion to ...


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