PITMAN, United States Magistrate Judge

REPORT AND RECOMMENDATION

: TO THE HONORABLE EDGARDO RAMOS, United States District Judge,

I. Introduction

Petitioner Jamarr Fowler, proceeding pro se, seeks by his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, an Order vacating a judgment entered on July 31, 2008 by the Supreme Court of the State of New York, Bronx County (Stadtmauer, J.), after a jury trial, which convicted Fowler of one count of rape in the second degree, in violation of New York Penal Law Section 130.30(1), colloquially known as statutory rape. By that judgment, petitioner was sentenced as a second felony offender to an indeterminate term of imprisonment of three and one-half to seven years. Petitioner was released from custody on November 6, 2013, after serving the full seven years. At or about the time he completed his sentence, petitioner was adjudicated a Level Two sex offender. At the time he filed his petition, petitioner was incarcerated in the State of Connecticut on unrelated charges brought by that state.

Respondent has moved to dismiss the petition on the ground that petitioner was not "in custody" pursuant to the judgment he seeks to challenge at the time he filed his petition, and, therefore, the Court lacks subject matter jurisdiction. Specifically, respondent contends that petitioner's being subject to the registration and reporting requirements of New York's sex offender registration statute do not constitute "custody" for the purpose of bringing a habeas corpus petition.

For the reasons set forth below, I respectfully recommend that respondent's motion be granted and that the petition be dismissed.

II. Facts

Because they are not material to the pending motion, an extended discussion of the facts giving rise to petitioner's conviction is not necessary. In short, petitioner's conviction arose out of his having sexual intercourse with a fourteen-year-old girl ("AH"). Petitioner was 25 years of age at the time of the crime. The evidence offered at trial tended to established that petitioner engaged in anal and vaginal intercourse with AH through forcible compulsion (see Declaration of Assistant District Attorney Marianne Stracquadanio, dated Aug. 29, 2018 (Docket Item ("D.I.") 14) ("Stracquadanio Aff."), Ex. 2 at 5-10).

Assisted by counsel, petitioner appealed his conviction, claiming that the evidence against him was insufficient and that there was a technical, state law defect in his sentencing. The Appellate Division of the Supreme Court for the First Department affirmed petitioner's conviction on November 10, 2009. Although the Appellate Division found that the evidence against petitioner was sufficient, it remanded for re-sentencing to correct the technical defect in the imposition of petitioner's sentence. People v. Fowler, 67 A.D. 3d 476, 886 N.Y.S.2d 885 (1st Dep't 2009). The New York Court of Appeals denied leave to appeal on March 11, 2010. People v. Fowler, 14 N.Y.3d 800, 925 N.E.2d 938, 899 N.Y.S.2d 134 (2010).

On April 20, 2010, the technical defect concerning petitioner's sentence was corrected, and petitioner was resentenced to the same sentence that was originally imposed (Stracquadanio Aff., Ex. 3).

Again with counsel's assistance, petitioner filed a second appeal to the Appellate Division, this time claiming that the sentence was harsh and excessive (Stracquadanio Aff., Ex. 4). The Appellate Division affirmed the sentence on November 1, 2011. People v. Fowler, 89 A.D.3d 436, 932 N.Y.S.2d 757 (1st Dep't 2011). The New York Court of Appeals denied leave to appeal on February 1, 2012. People v. Fowler, 18 N.Y.3d 924, 965 N.E.2d 965, 942 N.Y.S.2d 463 (2012).

On or about November 23, 2011, petitioner filed a motion in the Trial Court pursuant to New York Criminal Procedure Law Section 440.10, seeking to vacate his conviction on the ground that his trial counsel was ineffective (Stracquadanio Aff., Ex. 6). After conducting an evidentiary hearing, the Trial Court denied the motion on September 2, 2014 (Stracquadanio Aff., Ex. 12). The Appellate Division affirmed the denial of the 440.10 motion on December 1, 2016. People v. Fowler, 145 A.D.3d 437, 43 N.Y.S.3d 275 (1st Dep't 2016). The New York Court of Appeals denied leave to appeal on February 23, 2017 and March 28, 2017. People v. Fowler, 28 N.Y.3d 1184, 75 N.E.3d 102, 52 N.Y.S.3d 710 (2017); People v. Fowler, 29 N.Y.3d 902, 80 N.E.3d 398, 57 N.Y.S.3d 705 (2017).

Petitioner was released from New York State custody on November 6, 2013, while his 440.10 motion was pending in the Trial Court (Stracquadanio Aff., Ex. 8). Shortly after his release from custody, the Trial Court adjudicated petitioner to be a Level Two sex offender, thereby making him subject to the reporting and registration requirements of New York's Sex Offender Registration Act, N.Y. Correction Law, Sections 168-a, et seq. (Stracquadanio Aff. ¶ 15). This adjudication was also affirmed in the Appellate Division's December 1, 2016 decision. People v. Fowler, supra, 145 A.D.3d at 438, 43 N.Y.S.3d at 277-78.

On July 13, 2015, petitioner was convicted in a Connecticut State court of second degree forgery and interfering with an officer, in violation of Connecticut Penal Code Sections 53a-139 and 53a-167a, respectively. Petitioner was initially given a sentence of probation. However, on November 19, 2015, petitioner was found guilty of violating the terms of his probation and was sentenced to a term on imprisonment of three years (Stracquadanio Aff., ¶ 22 and Ex. 17).

Petitioner signed the pending petition on February 22, 2018, and I deem that to be its filing date. Houston v. Lack, 487 U.S. 266, 276 (1988); Noble v. Kelly. 246 F.3d 93, 97-98 (2d Cir. 2001). Petitioner claims that his conviction should be vacated for two reasons. First, he claims that his trial counsel was ineffective because he failed investigate exculpatory leads, failed to offer exculpatory evidence and committed other errors. Second, he claims that his conviction is defective because the indictment against him charged him with having anal intercourse with AH, but that the Trial Court charged the jury on the theory that petitioner had vaginal intercourse with AH.

III. Analysis

A. Applicable Legal Principles

A federal court's jurisdiction to consider a petition for a writ of habeas corpus is limited to petitions filed on "behalf of a person in custody pursuant to the judgment of a State court 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) (emphasis added); Nowakowski v. New York, 835 F.3d 210, 215 (2d Cir. 2016).

The federal habeas statute gives the United States district courts jurisdiction to entertain petitions for habeas relief only from persons who are "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(c)(3) (emphasis added); see also 28 U.S.C. § 2254(a). We have interpreted the statutory language as requiring that the habeas petitioner be "in custody" under the conviction or sentence under attack at the time his petition is filed. See Carafas v. LaVallee, 391 U.S. 234, 238 (1968).

Actual physical confinement is not required to satisfy the "in custody" requirement.

A petitioner may satisfy this requirement where [he] is subject to a significant restraint upon [his] physical liberty "not shared by the public generally." [Jones v. Cunningham, 371 U.S. 236, 240 (1963)]. The focus is not so much on actual physical custody, but "the 'severity' of an actual or potential restraint on liberty." Poodry v. Tonawanda Band of Seneca Indians, 85 F.3d 874, 894-95 (2d Cir. 1996).

The fact that a petitioner's sentence expired while the petition is pending does not affect the court's jurisdiction so long as the petitioner was "'in custody' when the application for habeas corpus [was] filed." Carafas v. LaVallee, 391 U.S. 234, 238 (1968).

Once a sentence has fully expired, however, it is no longer subject to challenge by way of a petition for a writ of habeas corpus in federal court.

We have never held . . . that a habeas petitioner may be "in custody" under a conviction when the sentence imposed for that conviction has fully expired at the time his petition is filed. . . . [O]nce the sentence imposed for a conviction has completely expired, the collateral consequences of that conviction are not themselves sufficient to render an individual "in custody" for the purposes of a habeas attack upon it.

Six Circuit Courts of Appeal have considered the specific issue of whether the registration and related requirements imposed pursuant to sex offender registration statutes satisfy the "in custody" requirement. The Court of Appeals for the Second Circuit has yet to reach the issue. With the exception of a single decision recently issued by the Court of Appeals for the Third Circuit, these cases have uniformly held that the registration and related requirements of these statutes do not satisfy the "in custody" requirement. Hautzenroeder v. Dewine, 887 F.3d 737, 744 (6th Cir. 2018); Dickey v. Allbaugh, 664 F. App'x 690, 692-94 (10th Cir. 2016); Calhoun v. Attorney Gen. of Colo., 745 F.3d 1070, 1074 (10th Cir. 2014); Wilson v. Flaherty, 689 F.3d 332, 338 (4th Cir. 2012); Virsnieks v. Smith, 521 F.3d 707, 719-20 (7th Cir. 2008); Leslie v. Randle, 296 F.3d 518, 521-23 (6th Cir. 2002); Zichko v. Idaho, 247 F.3d 1015, 1019 (9th Cir. 2001); McNab v. Kok, 170 F.3d 1246, 1247 (9th Cir. 1999) (per curiam); Williams v. Gregoire, 151 F.3d 1180, 1184 (9th Cir. 1998). District Court decisions reaching the same result include Smith v. Bush. C/A No. 8:17-2775-MGL-JDA, 2017 WL 5900088 at *2-*3 (D.S.C. Nov. 13, 2017) (Report & Recommendation); Turner v. N.C. Attorney Gen., No. 5:15-HC-2072-FL, 2015 WL 6110248 at *1 (E.D.N.C. Oct. 15, 2015); Clair v. Maynard, 812 F. Supp. 2d 685, 688 (D. Md. 2011), appeal dismissed, 476 F. App'x 543 (4th Cir. 2012); Rodriguez v. Attorney Gen., 10 Civ. 3868 (PGG)(JLC), 2011 WL 519591 at *8 (S.D.N.Y. Feb. 15, 2011) (Cott, M.J.) (Report & Recommendation), adopted at, 2011 WL 3875328 (S.D.N.Y. Sept. 2, 2011) (Gardephe, D.J.); Williams v. Dist. Attorney of Allegheny Cnty., Civil Action No. 10-353, 2010 WL 4388073 at *9 (W.D. Pa. Oct. 29, 2010); Daniels v. Jones, Civil Action No. 10-cv-00763-BNB, 2010 WL 3629835 at *5 (D. Colo. Sept. 9, 2010); Coleman v. Arpaio, Civil Action No. 09-6308 (PGS), 2010 WL 1707031 at *3 (D.N.J. Apr. 27, 2010); Hansen v. Marr, 594 F. Supp. 2d 1097, 1100-01 (D. Neb. 2009); Stevens v. Fabian, Civil No. 08-1011 ADM/AJB, 2009 WL 161216 at *2 (D. Minn. Jan. 22, 2009); Caires v. Iramina, Civil No. 08-00110 SOM-KSC, 2008 WL 2421640 at *3 (D. Haw. June 16, 2008); Davis v. Nassau County, 524 F. Supp. 2d 182, 187-89 (E.D.N.Y. 2007); Ali v. Carlton, No. 2:04-CV-398, 2005 WL 1118066 at *2 (E.D. Tenn. Apr. 25, 2005).

The foregoing decisions rely primarily on two factors in reaching their results. First, in virtually all of the cases, the registration statute in issue does not limit the offender's movement or employment in any respect. Rather the statute ordinarily just requires notice to state authorities either before or shortly after any change in residence, employment, etc. Second, several of the cases have relied on the fact that the registration requirement was not imposed as part of the sentence and was imposed as a result of a separate, non-criminal proceeding. See, e.g., Rodriguez v. Attorney Gen., supra, 2011 WL 519591 at *8.

The single outlier disclosed by my research is Piasecki v. Court of Common Pleas, Bucks Cty., 917 F.3d 161 (3rd Cir. 2019) which held that a Level Three sex offender under Pennsylvania's sex offender registration statute was "in custody" for the purpose of filing a habeas corpus petition. The Court there relied on three factors in reaching its conclusion. First, the petitioner was placed under sex-offender supervision as part of the sentencing proceeding. 917 F.3d at 164. Second, the petitioner was subject to a substantial number of stringent limitations.

The [sex offender] statute [in issue] required [the petitioner] to appear, in-person, at a registration site if he were to:

• Change his name;

• Change his residence or become transient;

• Begin a new job or lose previous employment;

• Matriculate or end enrollment as a student;

• Add or change a phone number;

• Add, change, or terminate ownership or operatorship of a car or other motor vehicle, and, as part of that visit, provide his license plate number, VIN number, and location where the vehicle will be stored;

• Commence or change "temporary lodging;"

• Add, change, or terminate any email address or other online designation; or

• Add, change, or terminate any information related to an occupational or professional license.

If [the petitioner] were to become homeless, he was required to "appear in person monthly and to be photographed." Prior to any international travel, [the petitioner] had to "appear in person at an approved registration site no less than 21 days" before his anticipated departure.

Based on the foregoing, the Court held that "the custodial jurisdiction requirement is satisfied by severe, immediate, physical, and (according to the state's own definition) punitive restraints on liberty that are imposed pursuant to -- and included in -- the judgment of a state court such as the one here." Piasecki v. Court of Common Pleas, Bucks Cty., supra, 917 F.3d at 176.

B. Application of the Foregoing Principles

The facts of this case are more similar to those in the cases that have held being subject to a sex offender registration statute does not constitute being "in custody" and are materially different from the facts presented in Piasecki. Thus, I conclude that the outcome of this case is controlled by the vast majority of decisions holding that being subject to a sex offender registration statute does not constitute being "in custody."

First, the requirements with which petitioner had to comply as a Level Two offender were relatively minor. As a Level Two offender, petitioner is obligated to complete a registration form prepared by the New York Division of Criminal Justice Services upon his release from prison, complete an annual re-registration form confirming his address and place of employment, report to be photographed every three years, and report any change in his address, internet accounts, internet identifiers or enrollment, attendance, employment or residence at any institution of higher education within ten days of such change. N.Y. Correct. Law § 168-f. He is free to travel anywhere he wanted, to live anywhere he wanted and to accept any employment that is offered to him. The limitations on petitioner here are far less rigorous than the restrictions at issue in Piasecki.

Second, unlike the facts in Piasecki, the registration requirement was not part of petitioner's sentencing. Rather, it was the result of a separate proceeding held after the completion of petitioner's sentence of incarceration (see Stracquadanio Aff. Exs. 3 and 14 at 1, 4). In New York, the Board of Examiners of Sex Offenders makes a recommendation to the sentencing court sixty days before a sex offender's discharge, parole or release to post-release supervision concerning whether the individual should designated as a sex offender and, if so, the nature of the designation, i.e., Level One, Two or Three. N.Y. Correct. Law § 168-1. After notice to the defendant, the sentencing court makes the ultimate determination concerning designation as a sex offender. N.Y. Correct. Law § 168-n. That decision is subject to appellate review. Thus, the sex offender adjudication process to which the petitioner was subject was separate and distinct from the sentencing process.

Third, New York's sex offender registration statute "'is not a penal statute and the registration requirement is not a criminal sentence. Rather than imposing punishment for a past crime, [New York's sex offender registration statute] is a remedial statute intended to prevent future crime.'" People v. Gravino, 14 N.Y.3d 546, 556, 928 N.E.2d 1048, 1054, 902 N.Y.S.2d 851, 857 (2010) (emphasis in original), quoting In re North v. Bd. of Examiners of Sex Offenders of State of N.Y., 8 N.Y.3d 745, 752, 871 N.E.2d 1133, 1138, 840 N.Y.S.2d 307, 312 (2007); see also Doe v. Pataki, 120 F.3d 1263, 1276 (2d Cir. 1997) ("The legislative history of [New York's sex offender registration act] supports the preamble's characterization of the twin purposes served by the SORA -- protecting communities by notifying them of the presence of individuals who may present a danger and enhancing law enforcement authorities' ability to fight sex crimes.").

Thus, because the facts of this case demonstrate that the restrictions on petitioner were not demanding, were not part of the sentencing process and are regarded by New York itself as being non-criminal in nature, I conclude that petitioner was not "in custody" at the time he filed his petition.

In his reply, petitioner claims that his delay in filing his habeas petition should be excused because he had to exhaust his state remedies with respect to his ineffective assistance claim before he could file his habeas petition (Affirmation of Jamarr Fowler in Opposition to Respondent's Motion to Dismiss, dated Sept. 12, 2018 (D.I. 19)). Petitioner is half right. Petitioner is correct that exhaustion of his state remedies was a condition precedent to his habeas petition. However, petitioner could have filed his 440.10 motion as soon as sentence was imposed in 2008. There was nothing in New York's law that required him to wait until 2011 to file his 440.10 motion. Thus, the fact that the adjudication of his 440.10 motion was not completed until he was released from custody (and, therefore, no longer eligible to seek federal habeas relief) is the result of his delay in pursuing his state remedies.

IV. Conclusion

Accordingly, for all the foregoing reasons, I respectfully recommend that respondent's motion be granted and that the petition be dismissed for lack of subject matter jurisdiction.

I also recommend that a certificate of appealability not be issued. 28 U.S.C. § 2253. To warrant the issuance of a certificate of appealability, "petitioner must show that reasonable jurists could debate whether . . . the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further." Middleton v. Attorneys Gen., 396 F.3d 207, 209 (2d Cir. 2005) (per curiam) (internal quotation marks omitted); see also Love v. McCray, 413 F.3d 192, 195 (2d Cir. 2005) (per curiam). For the reasons set forth above, I conclude that there would be no difference of opinion among reasonable jurists that petitioner was not in custody at the time he filed his petition and that the Court, therefore, lacks subject matter jurisdiction.

I further recommend that certification pursuant to 28 U.S.C. § 1915(a)(3) not be issued because any appeal from this Report and Recommendation, or any Order entered thereon, would not be taken in good faith. See Coppedge v. United States, 369 U.S. 438, 445 (1962).

V. OBJECTIONS

Pursuant to 28 U.S.C. § 636(b)(1)(c) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from receipt of this Report to file written objections. See also Fed.R.Civ.P. 6(a). Such objections (and responses thereto) shall be filed with the Clerk of the Court, with courtesy copies delivered to the Chambers of the Honorable Edgardo Ramos, United States District Judge, 40 Foley Square, Room 410, New York, New York 10007, and to the Chambers of the undersigned, 500 Pearl Street, Room 1670, New York, New York 10007. Any requests for an extension of time for filing objections must be directed to Judge Ramos. FAILURE TO OBJECT WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. Thomas v. Arn, 474 U.S. 140, 155 (1985); United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-238 (2d Cir. 1983). Dated: New York, New York

May 30, 2019

Respectfully submitted,

/s/_________

HENRY PITMAN

United States Magistrate Judge Copy mailed to: Mr. Jamarr Fowler
3323 Baychester Avenue
Bronx, New York 10469 Copy transmitted to: Counsel for Respondent