James v. Walsh

Decision Date15 October 2002
Docket NumberDocket No. 99-3709.
Citation308 F.3d 162
PartiesRonnie JAMES, Petitioner, v. James WALSH, Superintendent of Ulster Correctional Facility, Respondent.
CourtU.S. Court of Appeals — Second Circuit

Ruth M. Liebesman, Law Office of Ruth M. Liebesman, New York, NY, for Petitioner.

Thomas B. Litsky, State of New York Office of the Attorney General, New York, NY, for Respondent.

Before OAKES, WINTER, and KATZMANN, Circuit Judges.

WINTER, Circuit Judge.

Ronnie James, a paroled prisoner, applied pro se for leave to file a second or successive petition pursuant to 28 U.S.C. § 2254 after his petition was deemed a second, successive petition and transferred to this court by Judge Griesa. We appointed counsel to represent James. Counsel moves to be relieved pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Counsel initially argued that, although James's present habeas petition is not successive within the meaning of 28 U.S.C. § 2244, we should nevertheless dismiss it for its facial lack of merit. In a supplemental letter brief, counsel now argues that because James's present petition is not successive, we have no jurisdiction to dispose of it on the merits. Accordingly, counsel urges us to deny James's application for leave to file a second or successive petition as unnecessary and to refer the matter to the district court.

We hold that James's present petition is not successive within the meaning of Section 2244 and that we lack jurisdiction to review its merits. Thus, we deny James's application as unnecessary, transfer the matter to the district court for a determination of the merits, and grant counsel's motion to be relieved.

BACKGROUND

In 1989, following his conviction by a jury in New York state court of robbery, criminal possession of a weapon, and conspiracy, James was sentenced to nine to eighteen years incarceration. While incarcerated pending trial on these charges, James was charged with narcotics possession and, after pleading guilty, sentenced to an indeterminate term of five to ten years incarceration to run concurrently with his nine to eighteen year sentence.

In December 1997, James filed three Section 2254 petitions, which were consolidated by the district court (together, "the 1997 petition"). The 1997 petition raised claims of ineffective assistance of trial and appellate counsel, an unduly suggestive identification procedure, a Rosario violation, and a due process violation involving a Wade hearing. In October 1998, the district court denied James's 1997 petition as time barred under the Antiterrorism and Effective Death Penalty Act (AEDPA). See James v. Barkley, No. 98 Civ. 4383, 1998 WL 729740, at *1-*2, 1998 U.S. Dist. LEXIS 16174, at *3-*4 (S.D.N.Y. Oct. 16, 1998).

In August 1999, James filed another Section 2254 petition ("the 1999 petition"), claiming that the New York Department of Corrections ("DOCS") had erred in its calculation and application of his sentence and that he was being held in violation of state and federal law. Specifically, James alleged that DOCS had failed to apply the credit for time served on his lesser sentence to his overall sentence, and thus miscalculated his conditional release date as April 2000 instead of April 1999.

In March 1998 James had sought recalculation of his sentence through an Article 78 proceeding filed in state court. At the time his 1999 petition was filed, James stated that more than one year had passed with no decision. However, his state petition was in fact dismissed by the New York Supreme Court in October 1998, although James appears never to have been served with the decision. There is no indication that James appealed from the Article 78 dismissal.

The district court determined that James's 1999 petition was a second or successive petition within the meaning of 28 U.S.C. § 2244 and transferred it to this court. James v. Walsh, No. 99 Civ. 10469, slip op. at 1 (S.D.N.Y. Oct. 13, 1999). Subsequently, James filed the present application for leave to file a second or successive Section 2254 petition. In the application, James reasserted his claim that DOCS erred in the calculation and application of his sentence, and that he was therefore being held in violation of state and federal law.

On December 22, 1999, we issued an order denying James's application for leave to file a successive Section 2254 petition. However, we stayed the order and appointed counsel to brief the issues of whether: (i) James's attack on the administration of his sentence was properly brought in a Section 2254 petition; (ii) James's current application should be treated as a first petition under Stewart v. Martinez-Villareal, 523 U.S. 637, 118 S.Ct. 1618, 140 L.Ed.2d 849 (1998); and (iii) the failure to treat James's application as a first petition would violate the Suspension Clause. This panel retained jurisdiction over the matter. James was released on parole in April 2000.

In August 2000, counsel filed a brief and joint appendix on James's behalf, arguing that: (i) James's challenge to the administration of his sentence was properly brought in the 1999 petition because Section 2254 is the only means by which James, or any similarly situated state prisoner, can challenge the length of his incarceration; (ii) his present application should be treated as a first petition under Martinez-Villareal because his claims would have been premature if raised in his 1997 petition; and (iii) failure to treat his petition as a first petition violates the Suspension Clause because Congress did not narrowly tailor AEDPA's limitations on successive petitions to an exigency justifying suspension of the writ of habeas corpus. The State notified us that it would not be filing a brief in response.

On January 18, 2001, James's counsel moved to be relieved pursuant to Anders. In support of her Anders motion, counsel submitted a brief reiterating the arguments presented in her original brief filed on James's behalf, but also arguing that: (i) we lack jurisdiction over James's claims because James was not forced to serve more than his maximum sentence; and (ii) James's due process rights were not violated by the State's failure to credit him with time served because no such error occurred. James did not submit a response, although informed of his right to do so.

By order filed November 20, 2001, we ordered counsel to submit a letter brief discussing whether we have authority to dismiss James's application on the merits if, as counsel argued, his 1999 petition was not successive. In her subsequent letter brief, counsel asserts that we do not have the authority to dismiss on the merits an application for leave to file a successive Section 2254 petition if the proposed petition is not successive. Accordingly, she now asks that we: (i) dismiss James's motion for leave to file a successive Section 2254 petition as unnecessary, and (ii) instruct the district court to accept the Section 2254 petition for consideration of the merits.

Thus, the issues before us are: (i) whether AEDPA's gatekeeping requirements apply to James's 1999 petition, given that he challenged the administration, rather than legality, of his sentence, (ii) if so, whether James's 1999 petition is successive within the meaning of Section 2244, and (iii) if the petition is not successive, whether we may consider its merits.

DISCUSSION
a) Whether the 1999 Petition is Subject to AEDPA

AEDPA applies to petitions brought under the post-conviction remedy statutes, 28 U.S.C. §§ 2254 and 2255, but not to petitions brought under the traditional habeas statute, 28 U.S.C. § 2241. See Pub.L. No. 104-132, 110 Stat. 1214 (1996). We have held that it is the substance of the petition, rather than its form, that determines the applicability of AEDPA and that, when a Section 2241 petition is mislabeled as one filed under Section 2255, the gatekeeping provisions are not triggered. See Chambers v. United States, 106 F.3d 472, 475 (2d Cir.1997). Thus, we first must determine whether James's claim that DOCS incorrectly credited his time served was properly brought under Section 2254, and, therefore, is subject to the gatekeeping requirements of AEDPA, or whether it was functionally a Section 2241 petition, which would not trigger AEDPA. We conclude that James's 1999 petition was properly brought under Section 2254 and, as such, is subject to AEDPA.

In Chambers, 106 F.3d at 474, we held that a federal prisoner's challenge to the execution of a sentence is properly filed pursuant to 28 U.S.C. § 2241, rather than Section 2255, because Section 2255 allows a federal prisoner to challenge only the legality of the original imposition of a sentence. Id. at 474-75. We have explained that "[n]othing in the language of section 2255 indicates that the statute may be used to attack" the execution of one's sentence. Cabrera v. United States, 972 F.2d 23, 26 (2d Cir.1992). However, Chambers did not address the issue of whether a similar claim brought by a state prisoner attacking the execution of a sentence is properly brought pursuant to Section 2241 or Section 2254.

Unlike Section 2255, which allows a federal prisoner to challenge only the legality of a judgment imposing a sentence Section 2254 permits a state prisoner to file a habeas petition "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). A claim that one is "in custody" in violation of federal laws is broader than a claim that the imposition of one's sentence is illegal. A federal due process challenge claiming state incarceration beyond that authorized by a judgment and sentence would fall within this broader category of claims. See McGinnis v. United States ex rel. Pollack, 452 F.2d 833 (2d Cir.1971) (affirming a grant of Section 2254 relief to a state prisoner seeking a recomputation of his...

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