Filed: Nov. 09, 2018
Latest Update: Nov. 09, 2018
Summary: ORDER RICHARD J. ARCARA , District Judge . Petitioner has filed a petition for a writ of habeas corpus, pursuant to 28 U.S.C. 2241, challenging his detention by the New York State Department of Corrections and Community supervision after he was released from federal custody in March 2018. Section 2241, however, is "unavailable" to a state prisoner "challenging . . . the execution of his . . . sentence." Cook v. N.Y.S. Div. of Parole, 321 F.3d 274 , 278 (2d Cir. 2003). Such a prisoner m
Summary: ORDER RICHARD J. ARCARA , District Judge . Petitioner has filed a petition for a writ of habeas corpus, pursuant to 28 U.S.C. 2241, challenging his detention by the New York State Department of Corrections and Community supervision after he was released from federal custody in March 2018. Section 2241, however, is "unavailable" to a state prisoner "challenging . . . the execution of his . . . sentence." Cook v. N.Y.S. Div. of Parole, 321 F.3d 274 , 278 (2d Cir. 2003). Such a prisoner mu..
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ORDER
RICHARD J. ARCARA, District Judge.
Petitioner has filed a petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2241, challenging his detention by the New York State Department of Corrections and Community supervision after he was released from federal custody in March 2018. Section 2241, however, is "unavailable" to a state prisoner "challenging . . . the execution of his . . . sentence." Cook v. N.Y.S. Div. of Parole, 321 F.3d 274, 278 (2d Cir. 2003). Such a prisoner must instead bring a habeas corpus petition pursuant to 28 U.S.C. § 2254. Id. "[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." Id. at 277.
A court, however, may "not convert a post-conviction motion into a § [2254] [petition] without first giving the prisoner notice of such proposed action, and giving the prisoner an opportunity to withdraw his § [2241] [petition]." Adams v. United States, 372 F.3d 132, 136 (2d Cir. 2004). Petitioner is therefore advised that, should he elect to convert his § 2241 petition into a § 2254 petition, and if that § 2254 petition is ultimately denied, he may be prohibited from filing a second § 2254 petition, except in certain limited circumstances. See Adams v. United States, 155 F.3d 582, 583-84 (2d Cir. 1998). In other words, if Petitioner elects to convert his § 2241 petition into a § 2254 petition, that decision "may result" in a "deprivation of a future opportunity to have a well-justified grievance adjudicated." Id. at 583.
On or before December 13, 2018, Petitioner shall advise the Court whether he consents to the conversion of his § 2241 petition into a § 2254 petition. If Petitioner wishes to convert his § 2241 petition into a § 2254 petition, he shall, on or before December 13, 2018, file a reply to the Respondents' response memorandum. If Petitioner does not consent to the conversion of his § 2241 petition into a § 2254 petition, this case will be dismissed unless Petitioner advises the Court that he wishes to withdraw his § 2241 petition.
SO ORDERED.
