Cook v. New York State Div. Of Parole

Decision Date25 February 2003
Docket NumberDocket No. 00-2642.
Citation321 F.3d 274
PartiesAlonzo COOK, Petitioner-Appellant, v. NEW YORK STATE DIVISION OF PAROLE, and New York State Board of Parole, Respondents-Appellees.
CourtU.S. Court of Appeals — Second Circuit

Georgia J. Hinde, Law Office of Georgia J. Hinde, New York, New York, for Petitioner-Appellant.

Eric A. Johnson, Assistant Solicitor General (Eliot Spitzer, Attorney General of the State of New York, Caitlin J. Halligan, Solicitor General, Robin A. Forshaw, Assistant Solicitor General, of counsel), Albany, New York, for Respondents-Appellees.

Before: MESKILL and SACK, Circuit Judges, and MURTHA, District Judge.*

SACK, Circuit Judge.

This is an appeal from an order of the United States District Court for the Eastern District of New York (David G. Trager, Judge) construing petitioner Alzonzo Cook's pro se 28 U.S.C. § 2241 petition as a 28 U.S.C. § 2254 application and dismissing it as time-barred pursuant to 28 U.S.C. § 2244(d)(1). Construing Cook's notice of appeal as a motion for a certificate of appealability, we granted the certificate limited to the following issues: "(1) [W]hether [Cook], a state prisoner, properly challenged the revocation of his parole under 28 U.S.C. [§] 2241 rather than 28 U.S.C. [§] 2254; (2) whether a state prisoner challenging parole revocation must obtain a certificate of appealability to appeal a district court's denial of [§] 2241 relief; and (3) whether the ... one year statute of limitations [provided by the Anti-Terrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 ("AEDPA")] applies to a state prisoner's [§] 2241 petition." Cook v. New York State Bd. of Parole, No. 00-2642 (2d Cir. Feb. 9, 2001). We agree with the district court that a state prisoner challenging his or her parole revocation must file under section 2254 and that the time bar imposed by section 2244(d)(1) applies to such an application. Inasmuch as we conclude that the petition was properly considered an application under section 2254, we do not reach the other issue that we certified: whether section 2253(c)(1) requires a person seeking to appeal the denial of a petition under section 2241 first to obtain a certificate of appealability from us. Because this is Cook's first federal habeas petition and construing it as a section 2254 petition might cause Cook to forfeit unintentionally any otherwise meritorious claims for federal habeas relief he might have, however, we vacate the district court's judgment and remand the case to the district court to afford Cook an opportunity to withdraw his petition pursuant to Adams v. United States, 155 F.3d 582, 584 (2d Cir.1998) (per curiam), and also to enable the district court to determine whether the time limitation imposed by section 2244(d)(1) has in fact run.

BACKGROUND

Petitioner-Appellant Alonzo Cook was convicted of murder in the second degree by a New York State court in 1965. Cook asserts that he received an indeterminate sentence of eight and one-third years to life imprisonment for the crime.1

On May 10, 1976, Cook was released on parole. In May 1983, Cook was re-arrested for disfiguring his wife by throwing lye on her face and chest. He eventually pleaded guilty to attempted assault in the second degree. On October 27, 1983, he was sentenced to an indeterminate term of two to four years' imprisonment.

On December 6, 1983, a hearing officer from the New York State Division of Parole (the "Division") questioned Cook about his second conviction. The hearing officer concluded that there was probable cause to believe that Cook had violated the terms of his 1976 parole.

On March 7, 1984, Cook appeared with counsel before another Division hearing officer for a final hearing to determine if Cook's parole should be revoked. On April 4, 1984, the Division issued a notice sustaining the hearing officer's finding that Cook had violated his parole. The Division also revoked Cook's parole and ordered that he be "return[ed] and h[e]ld in accordance with statutory requirements of [his] new indeterminate sentence."2 Decision Notice — Violation of Parole, FK # 65-A-0055, DCI # 1008888-x (N.Y. Exec. Dep't Apr. 4, 1984). The New York State Board of Parole denied Cook parole after he completed the minimum term of his second sentence in March 1985. People ex rel. Cook v. Sullivan, No. 6463-1986, slip op. at 2 (N.Y. Sup.Ct. June 11, 1986). He remains incarcerated.

As early as 1984, Cook began filing challenges in state courts to his continued detention on a variety of bases. All of his petitions were denied. See, e.g., People ex rel. Cook v. New York State Bd. of Parole, 122 A.D.2d 240, 505 N.Y.S.2d 383 (2d Dep't 1986) (affirming New York Supreme Court's 1984 denial of Cook's petition for habeas corpus); People ex rel. Cook v. Ross, 232 A.D.2d 591, 591, 648 N.Y.S.2d 948, 948 (2d Dep't 1996) ("This is the third habeas corpus proceeding that the petitioner has brought challenging the revocation of his parole."). These actions continued at least through the year 2000. See Cook v. Goord, 275 A.D.2d 819, 713 N.Y.S.2d 507 (3d Dep't) (denying Cook's Article 78 petition to amend his correctional records to reflect that his 1983 sentence had expired and that he was then serving only his 1965 sentence), lv. to appeal denied, 95 N.Y.2d 769, 745 N.E.2d 392, 722 N.Y.S.2d 472 (Dec. 14, 2000).

In November 1999, proceeding pro se and in forma pauperis, Cook filed a petition in the United States District Court for the Eastern District of New York which he styled as a petition for a writ of habeas corpus under 28 U.S.C. § 2241. This was his first request for federal habeas relief. His petition alleged that his parole revocation hearing had been procedurally flawed, and that the parole board's failure to fix a release date violated his Eighth Amendment right to be free from cruel and unusual punishment. Respondents replied that Cook's petition was time-barred by the AEDPA amendments to 28 U.S.C. § 2244(d)(1). The district court concluded that the limitations period had expired in February 1998, and therefore dismissed Cook's petition as untimely. Cook v. New York State Bd. of Parole, No. CV-99-7712, slip op. at 3 (E.D.N.Y. Sept. 28, 2000). It also declined to grant Cook a certificate of appealability pursuant to 28 U.S.C. § 2253 which would have permitted him to appeal the dismissal to this Court. Id.

Cook filed a notice of appeal. Construing the notice of appeal as a motion for a certificate of appealability, we granted Cook's motion, limiting his appeal to three issues: "(1) [W]hether [Cook], a state prisoner, properly challenged the revocation of his parole under 28 U.S.C. [§] 2241 rather than 28 U.S.C. [§] 2254; (2) whether a state prisoner challenging parole revocation must obtain a certificate of appealability to appeal a district court's denial of [§] 2241 relief; and (3) whether [AEDPA's] one year statute of limitations applies to a state prisoner's [§] 2241 petition." Cook v. New York State Bd. of Parole, No. 00-2642 (2d Cir. Feb. 9, 2001). We also ordered that counsel be assigned to Cook for purposes of this appeal. Id.

DISCUSSION
I. Standard of Review

We review the district court's grant or denial of habeas corpus de novo. LanFranco v. Murray, 313 F.3d 112, 117 (2d Cir.2002). We are, however, bound by the district court's findings of fact unless they are clearly erroneous. Fed.R.Civ.P. 52(a) & 81(a)(2).

II. Jurisdiction Under 28 U.S.C. § 2241 or § 2254

Cook styled his request for relief in the district court as a petition for habeas corpus under 28 U.S.C. § 2241. Section 2241 authorizes "the Supreme Court, any justice thereof, the district courts and any circuit judge within their respective jurisdictions," 28 U.S.C. § 2241(a), 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).

The fact that Cook invoked section 2241 did not, however, require the district court to treat it as a section 2241 petition. On the contrary, if 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. James v. Walsh, 308 F.3d 162, 166 (2d Cir.2002). "[I]t is the substance of the petition, rather than its form, that" governs. Id.

The district court correctly treated Cook's petition as an application under section 2254. By its terms, section 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). That characterizes Cook's petition precisely. Cf. James, 308 F.3d at 166-67.

Cook argues, however, that section 2254 is not applicable to his petition because his custody is "pursuant to" an order of the parole board rather than a state court. Cook bases his argument on a series of cases in which we concluded that federal prisoners whose complaints were not directed at the imposition of their sentences could seek habeas relief under 28 U.S.C. § 2241 and thereby avoid the strictures of section 2255, section 2254's analog for federal prisoners. See, e.g., Carmona v. United States Bureau of Prisons, 243 F.3d 629, 632 (2d Cir.2001) (holding that administrative sanctions imposed for possession of narcotics while federally incarcerated may be challenged under section 2241); Murphy v. United States, 199 F.3d 599, 601 n. 2 (2d Cir.1999) (per curiam) (noting that a challenge to federal extradition was properly brought under section 2241); Chambers v. United States, 106 F.3d 472, 474-75 (2d Cir.1997) (holding that a petition relating to calculation of credit for time served during federal detention was properly brought under section 2241). But, as we observed in James, section 2255,...

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