United States District Court, W.D. New York
FAY M. HOLLIDAY, Plaintiff,
PAUL CHAPPIUS, Supt. Elmira C.F., Respondent.
DECISION AND ORDER
RICHARD J. ARCARA, District Judge.
Petitioner, Fay M. Holliday, an inmate at the Elmira Correctional Facility, who had filed previously a petition for a writ of a habeas corpus under 28 U.S.C. § 2254, Holliday v. Peo. of State of New York, 10-CV-0193(MAT), which was denied on the merits on July 7, 2011 ( id., Docket No. 7, Decision and Order), has now filed the instant petition for a writ of habeas corpus challenging the same conviction challenged in the petition filed previously. The instant petition is filed on a court-approved form used for filing petitions for writs of habeas corpus under 28 U.S.C. § 2241. The Court does not know if petitioner purposely used the form to file a petition under § 2241 in order to escape the second or successive rule of 28 U.S.C. § 2244(b) or whether he intended to file a petition under 28 U.S.C. § 2254 but used the wrong form. Petitioner also seeks permission to proceed in forma pauperis.
Because petitioner is in custody pursuant to a state court judgment and challenges that custody on constitutional grounds, his petition must be construed as one brought under § 2254. Rossney v. Travis, 2003 WL 135692, at *3 (S.D.N.Y. Jan. 17, 2003); see also James v. Walsh, 308 F.3d 162, 167 (2d Cir.2002) ("[A state prisoner may challenge either the imposition or the execution of a sentence under Section 2254."); Cook v. New York State Div. of Parole, 321 F.3d 274, 278 (2d Cir. 2003). ("[I]f 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.") (citing James, 308 F.3d at 166)).
Generally, however, before a court can convert a § 2241 petition to one brought under § 2254, it must first give petitioner notice of its intention to convert the petition and an opportunity to withdraw the petition without prejudice because a petition filed under § 2254 is subject to the "second" or "successive" petition restrictions of 28 U.S.C. § 2244(b),  and such restrictions "might preclude [petitioner] from ever seeking federal review of claims, even meritorious ones, not raised in th[e] petition." Cook, 321 F.3d at 281-82; see also Adams v. United States, 155 F.3d 582, 584 (2d Cir. 1998) (" Adams I ") (district courts should not recharacterize motions brought under some other provision to ones brought under § 2255 unless petitioner is advised of consequences of such recharacterization, i.e., second or successive petition restrictions, and provided opportunity to withdraw petition).
Because petitioner has already filed a petition for a writ of habeas corpus under § 2254 challenging the conviction he challenges herein, Holliday, 10-CV-0193(MAT), and it was denied on the merits, the instant petition is a second or successive petition under § 2244(b), and thus the notice and an opportunity to withdraw requirement set forth in Adams I is not required herein. See Adams v. United States, 372 F.3d 132, 136 (2d Cir. 2004) (" Adams II ") (citing Jiminian v. Nash, 245 F.3d 144, 146 (2d Cir. 2001). If a first petition has been denied on the merits previously "the concerns raised in Adams I are not implicated when AEDPA's gatekeeping limitations have already been triggered by the prisoner's knowing conduct in filing for habeas relief under § 2255." Adams II, 372 F.3d at 136 (citing Jiminian, 245 F.3d at 148). "In other words, notice is not necessary if a previously filed § 2254 petition has been denied on the merits." McCullough v. Fischer, 2014 WL 576260, at *3 (W.D.N.Y., Feb. 10, 2014) (citing Jiminian, 245 F.3d at 148 (so holding in the context of a § 2255 Motion).
A second or successive petition must be transferred to the Second Circuit for a determination, pursuant to § 2244(b)(2)-(3), whether the Second Circuit will authorize the district court to consider the petition. See Jiminian, 245 F.3d at 148; see also Moore v. Superintendent of Southport Correctional Facility, 2012 WL 5289599, at *1-2 (N.D.N.Y. Oct. 19, 2012) (second or successive petition transferred to Second Circuit because 28 U.S.C. § 2244(b)(3) "allocates jurisdiction to the courts of appeals, not the district courts, to authorize successive habeas motions or applications.'") (quoting Torres v. Senkowski, 316 F.3d 147, 151 (2d Cir.2003)).
IT HEREBY IS ORDERED, that petitioner is granted permission to proceed in forma pauperis and the petition is transferred to ...