United States District Court, W.D. New York
DECISION AND ORDER
ELIZABETH A. WOLFORD United States District Judge.
Theodore Brown ("Petitioner") has filed a Petition
for habeas corpus relief pursuant to 28 U.S.C. § 2241,
alleging that he is in state custody as a result of a state
criminal conviction obtained in Broome County Court in
violation of his due process rights. (Dkt. 1). Petitioner
also seeks permission to proceed in forma pauperis.
(Dkt. 2). The Court finds that Petitioner has met the
requirements to proceed as a poor person pursuant to 28
U.S.C. § 1915(a), and, Petitioner's request to
proceed in forma pauperis is therefore granted.
OF CONVERSION AND OPPORTUNITY TO WITHDRAW
the Petition is brought under § 2241, the Second Circuit
Court of Appeals has held that the proper habeas corpus
statute to challenge a state court conviction or sentence is
28 U.S.C. § 2254 and that, in such a situation, the
district court is required to convert the petition to an
application brought under § 2254. See Cook v. N.Y.
State Div. of Parole, 321 F.3d 274, 275-78 (2d Cir.
2003); Beardsley v. Crowell, No. 16 Civ 0259 (EAW),
2016 WL 4734678, at *1 (W.D.N.Y. Sept. 9, 2016) ("In
situations such as this, where Plaintiff erroneously brings a
claim under § 2241, the district court must convert the
§ 2241 petition to a § 2254 petition.").
Section 2254 governs petitions filed on behalf of any
"person in custody pursuant to the judgment of a State
court... 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 Maldonado v.
Savage, No. 07 Civ 0106A, 2007 WL 952043, at *1
(W.D.N.Y. Mar. 28, 2007) ("By its terms, section 2254 is
not limited to challenges to an underlying conviction or
sentence but can be used by any state prisoner who is in
custody pursuant to a state court judgment and who challenges
that custody on constitutional grounds." (quotations and
citations omitted)); compare James v. Walsh, 308
F.3d 162, 166-67 (2d Cir. 2002) (holding that Section 2241
applies to federal prisoners challenging the
execution of a sentence).
before the Court can convert this § 2241 Petition to one
brought pursuant to § 2254, it must first give
Petitioner notice of its intention to convert the Petition
and an opportunity to withdraw the Petition, without
prejudice, because § 2254 petitions are subject to the
"second" or "successive" petition
restrictions of 28 U.S.C. § 2244(b). 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
Castro v. United States, 540 U.S. 375, 383 (2004)
(adopting the rule set forth in Adams v. United
States, 155 F.3d 582, 584 (2d Cir. 1998) (district
courts should not recharacterize such motions unless the
petitioner is advised of the potential adverse consequences
of such recharacterization)). In addition, a petition
recharacterized as an § 2254 application will be subject
to the one-year period of limitations set forth in §
2244(d)(1). Brown v. Guiney, No. 06 Civ 55S, 2006 WL
1144499, at *2 (W.D.N.Y. Apr. 25, 2006). The Court further
advises Petitioner that although he must be informed of the
restrictions on second or successive petitions in order to be
given meaningful notice of the opportunity to withdraw his
current application, the second or successive prohibition
applies only to issues which Petitioner could have brought in
a previous or subsequent petition but failed to do so.
See James, 308 F.3d at 167 ("[A] claim raised
in a prior Section 2254 petition, but dismissed as premature,
is not subject to the gatekeeping provision of Section
the Court is hereby notifying and advising Petitioner that it
intends to recharacterize this Petition as one brought
pursuant to 28 U.S.C. § 2254 and that the
recharacterized Petition will be subject to the restrictions
set forth in 28 U.S.C. § 2244. The recharacterization of
this Petition to an application brought under 28 U.S.C.
§ 2254 will occur unless Petitioner notifies the Court
in writing by July 14, 2017 that he either (1) consents to
the recharacterization despite the potential adverse
consequences and the period of limitations set forth above,
or (2) voluntarily withdraws the § 2241 Petition instead
of having it recharacterized as a petition brought under
§ 2254. If Petitioner does not advise the Court in
writing by July 14, 2017 of either his consent to the
recharacterization of this Petition as one brought pursuant
to § 2254 or his voluntary withdrawal of this Petition,
the Court will recharacterize this § 2241 Petition as
one brought pursuant to § 2254.
Court further notes that, in the event that this Petition is
converted to a petition under § 2254 due to
Petitioner's notification of his consent to the
recharacterization of his Petition or his failure to withdraw
the Petition, the Petition will be transferred to the United
States District Court for the Northern District of New York.
The Court finds that because all of the records relating to
the Petitioner's underlying criminal conviction are
located in the Northern District of New York, venue is proper
in that district. 28 U.S.C. § 2241(d); Braden v.
30th Judicial Circuit Court of Ky., 410 U.S.
4845 493-494, 499 (1973); see Ford v.
Bradt, 71 F.Supp.3d 364, 367-68 (W.D.N.Y. 2014)
("Federal district courts have not hesitated to transfer
habeas corpus applications to the district of conviction
because the evidence is more readily accessible in the
district where [the] petitioner was convicted."
(quotations and citations omitted)).
all of the events, and related facts, underlying the claims
asserted in the Petition are alleged to have occurred in
Broome County, which is within the geographical confines of
the Northern District of New York. The events giving rise to
Petitioner's habeas claims occurred in the Northern
District of New York, as he asserts that his constitutional
rights were violated during his state court trial in Broome
County. See Ford, 71 F.Supp.3d at 368 (finding that
the plaintiffs transfer from the district of confinement was
appropriate because the relevant court records as well as the
"evidence and witnesses that [were] pertinent to his
claims" were located in the district of conviction).
Therefore, this Court will transfer this Petition to the
Northern District of New York in the event the Petition is
converted to a petition under § 2254.
 28 U.S.C. § 2244(b)(2) provides