PALMER v. PHILLIPS

RONALD ELLIS, Magistrate Judge

To the HONORABLE KIMBA M. WOOD, U.S.D.J.:

I. INTRODUCTION

Pro se petitioner, Lasyah M. Palmer ("Palmer"), seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging the accuracy of his jail time calculations by the New York State Department of Correctional Services ("DOCS"). Palmer is currently incarcerated at the Sullivan Correctional Facility in Fallsburg, New York. Pending before the Court is respondent's motion to dismiss Palmer's petition as a second or successive habeas petition. For the reasons set forth below, I recommend that respondent's motion to dismiss be GRANTED.

II. BACKGROUND

In August 1992, following his conviction for robbery in the first degree, Palmer was sentenced to three concurrent indeterminate terms of four-to-eight years. He was released on parole in March 1996. On May 15, 1996, he was declared delinquent by the Department of Parole for committing new offenses. Palmer was subsequently convicted of robbery in the first degree, kidnapping in the second degree, grand larceny in the second and fourth degrees, burglary in the second degree, and criminal possession of a weapon in the third degree. He was sentenced in July 1997 for these new offenses. His conviction was affirmed by the Appellate Division, First Department, and the New York Court of Appeals denied his application for leave to appeal on December 6, 1999. People v. Palmer, 693 N.Y.S.2d 539 (App.Div. 1st Dep't 1999). At the time of his 1997 sentencing, his 1992 sentence remained undischarged.

In September 6, 2000, Palmer filed a petition for a writ of habeas corpus in this Court, challenging his 1997 conviction. Palmer v. Greiner, 00 Civ. 6677 (WHP) (RLE). The petition was dismissed on the merits, Palmer v. Greiner, 2003 U.S. Dist. LEXIS 14974 (S.D.N.Y. Aug. 22, 2003), and the Court declined to issue a certificate of appealability. On May 20, 2005, the United States Court of Appeals for the Second Circuit denied Palmer's motion for a certificate of appealability.

On June 3, 2004, Palmer filed an Article 78 petition in New York State Supreme Court, Dutchess County, challenging DOCS's computation of his jail time credits. In its response, the State argued that Palmer's 1992 and 1997 sentences run consecutively and not concurrently as he claimed. See New York Penal Law ("N.Y.P.L.") §§ 70.25 and 70.30(1)(a). On August 12, 2004, the court dismissed Palmer's petition, finding that his claim was meritless. Palmer attempted to appeal this decision to the Appellate Division, Second Department, but his application to proceed in forma pauperis was denied. The New York State Court of Appeals dismissed his motion for leave to appeal the denial. Palmer v. New York State Dep't of Corr. Services, 797 N.Y.S.2d 416 (2005). On July 7, 2005, the Appellate Division, Second Department, denied Palmer's appeal concerning the dismissal of his Article 78 petition.

On May 16, 2005, Palmer file a pro se habeas petition in the Eastern District of New York. The court directed him to file an amended petition clarifying his claims and grounds for relief. On August 17, 2005, Palmer filed an amended habeas corpus petition alleging that 1) he was denied access to the courts in violation of his federal constitutional rights because his application to proceed in forma pauperis was denied in the Appellate Division, Second Department; 2) he was denied equal protection because he was not credited with jail time already served; and 3) N.Y.P.L. § 70.25 is unconstitutional. On October 12, 2005, the court found that in challenging the Appellate Division's order denying him in forma pauperis status, Palmer was seeking a mandatory injunction or mandamus relief. It ruled that these were not available remedies in his petition, but that the jail time credit claim could be addressed. The court construed Palmer's petition as one pursuant to 28 U.S.C. § 2241, and transferred it to this Court because the contested jail time calculations occurred in the Green Haven Correctional Facility, located in Dutchess County, within the Southern District.

Although the May 2005 and August 2005 petitions in this case were transferred to this Court from the Eastern District on November 22, 2005, Palmer filed a subsequent amended petition on December 12, 2005. In this latest petition, Palmer claims that he is entitled to receive jail time credits because his sentences run concurrently pursuant to N.Y.P.L. § 70.30(1)(a), but does not challenge the Appellate Division's order denying him in forma pauperis status. On March 9, 2006, the State filed a motion to dismiss the habeas corpus petition as a second or successive petition, arguing that 1) the Eastern District improperly construed the instant petition as a 28 U.S.C. § 2241 petition, and 2) that Palmer's claims do not entitle him to habeas corpus relief.

III. DISCUSSION

A. Palmer's Petition is Construed As a 28 U.S.C. § 2254 Petition

Palmer originally styled his petition for a writ of habeas corpus as a 28 U.S.C. § 2254 petition. The Eastern District, however, construed Palmer's petition challenging the State's computation of his jail time credits as a petition under 28 U.S.C. § 2241. The State argues that the court erred in concluding that a challenge to the execution of a sentence should be brought under 28 U.S.C. § 2241. The Court agrees. Section 2241 authorizes "the Supreme Court, any justice thereof, the district courts and any circuit judge within their respective jurisdictions," to grant a writ of habeas corpus to a "prisoner . . . in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(c)(3). By its terms, § 2254 applies to "application[s] . . . in behalf of . . . a person in custody pursuant to the judgment of a State court . . . on the ground that [the person applying] is in custody in violation of the Constitution . . . of the United States." 28 U.S.C. § 2254(a). "[A] state prisoner may challenge either the imposition or the execution of a sentence under Section 2254." James v. Walsh, 308 F.3d 162, 167 (2d Cir. 2002) (contrasting more restrictive language in 28 U.S.C. § 2255). Section 2254 is the proper jurisdictional statute for Palmer's petition. Cook v. New York State Div. of Parole, 321 F.3d 274, 278 (2d Cir. 2003); Boyd v. Smith, 2004 WL 2915243, at * 8 (S.D.N.Y. Dec. 17, 2004). Palmer's jail time credits claim is therefore properly brought under § 2254.

B. A Second or Successive Habeas Corpus Petition

The AEDPA establishes a gatekeeping mechanism for the consideration of a "second or successive" habeas corpus petition, 28 U.S.C. § 2244(b); Felker v. Turpin, 518 U.S. 651, 657 (1996), but does not define the phrase. Slack v. McDaniel, 529 U.S. 473, 486 (2000); Martinez-Villareal, 523 U.S. at 643-45, James v. Walsh, 308 F.3d at 167; Muniz v. United States, 236 F.3d 122, 127 (2d Cir. 2001). As an initial matter, however, the earlier habeas petition must have been adjudicated on the merits. Villanueva v. United States, 346 F.3d 55, 60 (2d Cir. 2003); Murray v. Greiner, 394 F.3d 78, 80-81 (2d Cir. 2005). In addition, a second or successive habeas petition may only be filed if authorized by the Second Circuit. 22 U.S.C. § 2244(b)(3)(A).

This Court dismissed Palmer's original habeas petition on August 22, 2003. On May 20, 2005, the Second Circuit denied Palmer's application for a certificate of appealability. Before the Second Circuit denied his motion for a certificate of appealability in the first petition, Palmer filed another petition in the Eastern District on May 16, 2005. In Ching v. United States, the Second Circuit held that a later petition filed while the denial of an initial petition was pending on appeal before the Second Circuit, should be construed as an amendment to the initial petition. 298 F.3d 174, 177 (2d Cir. 2002). Unlike Ching, Palmer's May 2005 petition cannot be construed as an amendment because there was already a final decision on the merits with respect to the original petition. After reviewing the May 2005 petition, the Court finds that it raises claims that could have been raised in the original submission, and that it is a second or successive habeas petition pursuant to 28 U.S.C. § 2244(b). Because the pending petition is a second or successive petition, and Palmer has not received leave from the Second Circuit, the Court does not have jurisdiction to decide the merits of his claims. 28 U.S.C. § 2244(b)(3). The "issue here . . . is whether to dismiss the petition or transfer it to the Second Circuit pursuant to 28 U.S.C. § 1631." Terrace v. Artus, 2005 U.S. Dist. LEXIS 14677, at *4 (S.D.N.Y. July 20, 2005). Having reviewed the petition in this case, the Court finds that transfer to the Second Circuit is unwarranted because 1) the petition is untimely; 2) the factual predicate for Palmer's jail time credits claim could have been discovered previously through the exercise of due diligence; and 3) Palmer's claim that the State improperly calculated his jail time credits is meritless.

1. Timeliness

A petitioner must file an application for a writ of habeas corpus within one year of his conviction becoming final. See 28 U.S.C. § 2244(d)(1). A "conviction becomes final when the time to seek direct review in the United States Supreme Court by writ of certiorari expires," that is, ninety days after the final determination by the state court. Williams v. Artuz, 237 F.3d 147, 150 (2d Cir. 2001) ( quoting Ross v. Artuz, 150 F.3d 97, 98 (2d Cir. 1998). Since Palmer's conviction became final on December 6, 1999, his petition had to be filed within one year of that date. The later habeas corpus petition, dated May 9, 2005, is therefore untimely.

2. Palmer's Jail Time Credits Claim Could Have Been Discovered Previously

A subsequent petition is second or successive if it "raises a claim that was, or could have been, raised in an earlier petition." James v. Walsh, 308 F.3d at 167. Documents concerning the contested jail time computation which are attached to the pending habeas corpus petition, are dated September 22, 1997, and indicate that the State credited Palmer with time served between his arrest and sentence, but not with the time served for his 1992 convictions. Since he was aware of the State's calculation of his jail time credits in 1997, Palmer could have raised his jail time credits claim in his initial petition. He does not explain his failure to do so.

3. Palmer's Jail Time Credits Claim is Meritless

Pursuant to N.Y.P.L. § 70.25(2-a), Palmer's 1997 sentences run consecutively to his 1992 sentences. "When an indeterminate or determinate sentence of imprisonment is imposed . . . and such person is subject to an undischarged indeterminate or determinable sentence of imprisonment imposed prior to the date on which the present crime was committed, the court must impose a sentence to run consecutively with respect to such undischarged sentence." N.Y.P.L. § 70.25(2-a). Since Palmer's 1992 sentence was undischarged as of May 15, 1996, when he committed a series of new offenses, his 1997 sentence should run consecutively to his earlier sentences. Since the 1992 and 1997 sentences run consecutively, Palmer is not entitled to jail time credits for time served for the 1992 sentences. N.Y.P.L. § 70.30.

IV. CONCLUSION

For the foregoing reasons, I recommend that respondent's motion to dismiss be GRANTED. Pursuant to Rule 72, Federal Rules of Civil Procedure, the parties shall have ten (10) days after being served with a copy of the recommended disposition to file written objections to this Report and Recommendation. Such objections shall be filed with the Clerk of the Court and served on all adversaries, with extra copies delivered to the chambers of the Honorable Kimba M. Wood, 500 Pearl Street, Room 1610, and to the chambers of the undersigned, Room 1970. Failure to file timely objections shall constitute a waiver of those objections both in the District Court and on later appeal to the United States Court of Appeals. See Thomas v. Arn, 474 U.S. 140, 150 (1985); Small v. Secretary of Health and Human Services, 892 F.2d 15, 16 (2d Cir. 1989) ( per curiam ); 28 U.S.C. § 636(b)(1) (West Supp. 1995); Fed.R.Civ.P. 72, 6(a), 6(e).