Gooden v. Titus

Filing 10

ORDER DISMISSING CASE: Per the attached Order, the Clerk of Court shall transfer this petition to the United States Court of Appeals for the Second Circuit pursuant to 28 U.S.C. § 1631. See Liriano v. United States, 95 F.3d 119 (2d Cir. 1996). If the Second Circuit authorizes Petitioner to proceed in this matter, he shall move to reopen under this docket number. Petitioner has failed to make a "substantial showing of the denial of a constitutional right," therefore, a ce rtificate of appealability will not issue. See 28 U.S.C. § 2253. Moreover, the Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from this order would not be taken in good faith and, therefore, in forma pauper is status is denied for the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). The Clerk of Court is respectfully directed to close this case and to mail a copy of this order to the Petitioner and to note service on the docket. Ordered by Judge Orelia E. Merchant on 3/5/2025. (SAD)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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UNITED STATES EX REL KARL GOODEN,
Petitioner,
MEMORANDUM AND ORDER
24-CV-00512 (OEM)

-againstSUPERINTENDENT A. TITUS, Orleans
Correctional Facility,
Respondent.
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ORELIA E. MERCHANT, United States District Judge:

Petitioner Karl Gooden (“Petitioner”), who was incarcerated at the Orleans Correctional
Facility 1, filed the instant pro se petition styled as a petition for writ of habeas corpus under 28
U.S.C. § 2241 in the United States District Court for the Western District of New York (“Western
District”). Petition (“Pet.”), ECF 1. On January 23, 2024, the Western District transferred the

Based on the New York State Department of Corrections and Community Supervision website, Petitioner was
released from incarceration and placed on parole supervision on December 18, 2024. Despite Petitioner’s release
from incarceration, “[a] habeas petition is generally not moot so long as the petitioner continues to be held in the
custody that he alleges is unlawful.” Janakievski v. Exec. Dir., Rochester Psychiatric Ctr., 955 F.3d 314, 319 (2d Cir.
2020) (citing Dhinsa v. Krueger, 917 F.3d 70, 77 n.5 (2d Cir. 2019)). The custody that petitioner is held in that he
alleges is unlawful could relate to “experiencing direct physical custody (e.g., incarceration),” or could instead relate
to other “restraints on [] liberty, such as parole.” See id. (citing Spencer v. Kemna, 523 U.S. 1, 7 (1998)) (“An
incarcerated [person’s] (or a parolee’s) challenge to the validity of his conviction always satisfies the case-orcontroversy requirement, because the incarceration (or the restriction imposed by the terms of the parole) constitutes
a concrete injury, caused by the conviction and redressable by invalidation of the conviction.” (emphasis added));
Jones v. Cunningham, 371 U.S. 236, 243, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963) (habeas petition was not mooted by
petitioner’s release on parole because “[w]hile petitioner’s parole releases him from immediate physical
imprisonment, it imposes conditions which significantly confine and restrain his freedom”). A case is “moot only
when it is impossible for a court to grant any effectual relief whatever to the prevailing party.” Knox v. Serv. Emps.
Int’l Union, Local 1000, 567 U.S. 298, 307 (2012) (citation and quotation marks omitted). Therefore, the Court issues
this opinion in response to Plaintiff’s petition.
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action to this Court. Order transferring case, ECF 5. Petitioner’s request to proceed in forma
pauperis (“IFP”) under 28 U.S.C. § 1915 was granted on January 26, 2024.
For the following reasons, the Court construes this petition, although brought under Section
2241, as a second or successive petition for relief under 28 U.S.C. § 2254. As such, the Court
cannot consider the instant petition and transfers it to the United States Court of Appeals for the
Second Circuit (“Second Circuit”) under to 28 U.S.C. § 1631.
BACKGROUND
In 1986, Petitioner was convicted on two counts of Murder in the Second Degree in
violation of N.Y. Penal Law §§ 125.25(1) and 125.25(3) and one count of Criminal Possession of
a Weapon in the First Degree in violation of N.Y. Penal Law § 265.03. Pet. at 2-3.
Petitioner previously filed a petition under Section 2254 challenging his state conviction,
which the Court denied on August 12, 2019. See Gooden v. Crowley, 16-CV-4773 (WFK), 2019
WL 13499952, at *1 (E.D.N.Y. Aug. 12, 2019) (dismissing the petition for the writ of habeas
corpus as time-barred.). Petitioner appealed. The Second Circuit dismissed the appeal finding
that Petitioner had not shown that “jurists of reason would find it debatable whether the district
court was correct in its procedural ruling as to the untimeliness of [Petitioner’s] 28 U.S.C. § 2254
petition.” See Mandate, Gooden v. Crowley, 19-3046 (2d Cir. May 7, 2020), ECF 47; see also
Mandate, 16-CV-4773, ECF 20.
Petitioner sought leave from the Second Circuit to file a successive Section 2254 petition.
On November 7, 2024, the Second Circuit denied Petitioner’s request, finding that Petitioner: (a)
had not made a showing that his claims relied on “a new rule of constitutional law, made retroactive
to cases on collateral review by the Supreme Court, that was previously unavailable,” citing 28
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U.S.C. § 2244(b)(2)(A); (b) had not made a showing that “the facts underlying the claim[s], if
proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear
and convincing evidence that, but for constitutional error, no reasonable factfinder would have
found the applicant guilty” of the underlying offense, citing 28 U.S.C. § 2244(b)(2)(B)(ii); and (c)
had failed to state a claim for actual innocence. See Mandate, 16-CV-4773, ECF 28.
In the instant petition, Petitioner challenges his 1986 Kings County conviction. Pet. at 23. Petitioner argues that his incarceration violates his rights under the Fifth and Fourteenth
Amendments to the Constitution. Id.
DISCUSSION
As a threshold matter, the Court must determine whether Section 2241 is the proper
vehicle for the instant petition, or if it is more appropriately filed as a petition for a writ of habeas
corpus under Section 2254. The Second Circuit has held, “[t]he fact that [Petitioner] invoked
section 2241 [does] not, however, require the district court to treat it as a section 2241 petition. To
the contrary, if an application that should have been 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.” Cook v. N.Y. State Div. of Parole, 321 F.3d 274, 277 (2d Cir. 2003) (citing James v.
Walsh, 308 F.3d 162, 166 (2d Cir. 2002)). The substance of the petition and the relief sought
determine whether a petition for writ of habeas corpus should be considered under Section 2241
or Section 2254. Id. at 278.
Section 2254 allows “a person in custody pursuant to the judgment of a State court” to seek
relief “only 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). On the other hand, Section 2241 allows an incarcerated
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person to challenge the “execution of [his] sentence,” Chambers v. United States, 106 F.3d 472,
474 (2d Cir. 1997) (emphasis in original), such as decisions to deny parole or conditions of
confinement, see, e.g., Dhinsa v. Krueger, 917 F.3d 70, 81 (2d Cir. 2019) (“To challenge ‘the
execution of a sentence,’ including challenges to disciplinary actions, prison conditions, or parole
decisions, . . . an application under 28 U.S.C. § 2241 provides the ‘proper means.’”) (quoting
Adams v. United States, 372 F.3d 132, 135 (2d Cir. 2004); Jiminian v. Nash, 245 F.3d 144, 146
(2d Cir. 2001)).
Petitioner was incarcerated under a state court judgment and appears to continue to be
under parole supervision. He alleges that his custodial sentence violates his Fifth and Fourteenth
Amendment rights and appears to seek release from custody. 2 Therefore, Section 2254 is the
proper vehicle for the relief Petitioner seeks—not Section 2241. See 28 U.S.C. § 2254(a); see
also Cook, 321 F.3d at 278 (2d Cir. 2003); Antrobus v. Warden of OBCC Rikers Island, 24-CV00155, 2024 WL 1468171, at *2 (E.D.N.Y. Mar. 19, 2024).
However, the instant petition under Section 2254 is successive. A Section 2254 petition is
successive when a previous Section 2254 petition challenging the same conviction was adjudicated
on the merits. This includes when the previous Section 2254 was dismissed as time-barred. See
Murray v. Greiner, 394 F.3d 78, 81 (2d Cir. 2005) (holding that dismissal of a § 2254 petition as
untimely “constitutes an adjudication on the merits that renders future petitions under § 2254
challenging the same conviction ‘second or successive’ under § 2244(b)”).

A court may

recharacterize a petition brought under Section 2241 as a successive petition under Section 2254
without providing Petitioner an opportunity to withdraw the submission. Jiminian, 245 F.3d at
The Court assumes, for purposes of this petition, that Petitioner’s request for release from custody applies to his
parole supervision.
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148; Hizbullahankhamon v. Yehl, 99-CV-05016, 2024 WL 4756346, at *1 (S.D.N.Y. Oct. 11,
2024).
Because Petitioner has previously challenged his conviction by filing a petition pursuant
to 28 U.S.C. § 2254—which was denied on the merits as untimely—and the Second Circuit has
previously denied Petitioner’s request to file a successive petition, the Court finds that the instant
petition is in fact as a second or successive Section 2254 petition. Before Petitioner may file a
successive petition, he must move in the Second Circuit for authorization pursuant to 28 U.S.C. §
2244(b)(3)(A). Petitioner has not done so here.
CONCLUSION
For the foregoing reasons, in the interest of justice, the Clerk of Court shall transfer this
petition to the United States Court of Appeals for the Second Circuit pursuant to 28 U.S.C. § 1631.
See Liriano v. United States, 95 F.3d 119 (2d Cir. 1996). This Order closes this case. If the Second
Circuit authorizes Petitioner to proceed in this matter, he shall move to reopen under this docket
number.
Petitioner has failed to make a “substantial showing of the denial of a constitutional
right,” therefore, a certificate of appealability will not issue. See 28 U.S.C. § 2253. Moreover, the
Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from this order would not be
taken in good faith and, therefore, IFP status is denied for the purpose of an appeal. See Coppedge
v. United States, 369 U.S. 438, 444-45 (1962).

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The Clerk of Court is respectfully directed to mail a copy of this order to the Petitioner
and to note service on the docket.
SO ORDERED.
Dated: March 5, 2025
Brooklyn, New York

/s/
ORELIA E. MERCHANT
United States District Judge

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