Opinion
99-CV-6586CJS(B)
February 5, 2003
DECISION and ORDER
INTRODUCTION
Petitioner Shawn Green, acting pro se, seeks relief pursuant to 28 U.S.C. § 2254, alleging that his convictions in two prison disciplinary hearings held at Southport Correctional Facility, Chemung County, State of New York, were unconstitutionally obtained. The petition has been timely filed for purposes of 28 U.S.C. § 2244(d)(1). For the reasons stated below, the Court denies the petition and dismisses the action.
BACKGROUND
The petition was originally filed in the Northern District of New York as one of three filed by petitioner on the same day and transferred to this Court on November 23, 1999. Petitioner asserted that his convictions in the disciplinary proceedings were unconstitutional because he was deprived of an opportunity to present a defense and the hearing officer was not impartial and relied on insubstantial evidence.
Petitioner was issued misbehavior reports on November 22, 1997 and November 28, 1997 for, among other things, refusing to remove a sheet covering his cell bars. Tier II disciplinary hearings were conducted on December 1, 1997 and December 8, 1997 to address the misbehavior reports. Petitioner did not attend the December 1 hearing and was found guilty and sentenced to 30 days Keeplock, to be served between June 6, 1999 and July 19, 1999. He attended the December 8 hearing and was found guilty and sentenced to 21 days Keeplock, with such sentence suspended for 90 days.
Petitioner challenged the disciplinary determinations of December 1, 1997 and December 8, 1997 through an Article 78 proceeding under New York Civil Procedure Law in Chemung County (Index #97-2949). The petition was transferred to the Appellate Division, Third Judicial Department. The grounds reviewed were that he should have had an opportunity to present a defense to the charges, the disciplinary hearing was not conducted in an impartial manner, and the evidence relied upon was insubstantial. The Appellate Division, Third Judicial Department affirmed the decision and dismissed the petition on December 10, 1998. Leave to appeal to the Court of Appeals was denied on June 3, 1999. A Motion for Reargument or Reconsideration was also denied by the Court of Appeals. Matter of Green v. McGinnis, 93 N.Y.2d 1042 (September 14, 1999). In the meantime, the disciplinary sentences in question were served and/or expired. Petitioner filed the instant petition, alleging violation of his constitutional rights as discussed above. Petitioner seeks "relief to which he may be entitled."
Respondent concedes that petitioner has exhausted his administrative and state court remedies. However, respondent asserts that none of petitioner's constitutional rights were violated and that petitioner is not in custody as a result of the disciplinary hearings which he challenges, having served the sentences in question. Respondent's memorandum of law cites to no precedent for this proposition. Petitioner filed an affirmation in response in which he did not address respondent's assertions regarding his entitlement to habeas corpus relief, but rather, addressed anew the denial of his rights.
DISCUSSION
There is no question that petitioner has exhausted his state court remedies and cannot be denied review on that basis. However, habeas corpus review is not available to petitioner because he is not in custody pursuant to the disciplinary determinations he challenges. The sentences in the instant case had expired by the time petitioner brought this habeas petition. Petitioner has not alleged any collateral consequences resulting from his disciplinary hearing convictions. Habeas corpus review is available only to persons in custody in violation of the Constitution, laws or treaties of the United States. 28 U.S.C. § 2254(a). The custody requirement has been held to include situations in which a petitioner's sentence has fully expired, but he continues to be subject to collateral consequences of the conviction. Carafas v. LaVallee, 88 S.Ct. 1556, 1559-60 (1968). The Supreme Court has recently addressed the issue of what constitutes "in custody" for purposes of a writ of habeas corpus in Spencer v. Kemna, 118 S.Ct. 978 (1998). In Spencer, the Court reaffirmed the holding in Lane v. Williams, 102 S.Ct 1332 (1982); the presumption that wrongful criminal conviction has continuing collateral consequences such that habeas corpus relief would be available does not extend to parole revocation hearings. Spencer v. Kemna, 118 S.Ct. at 985. The principle that there are insufficient collateral consequences to a revocation of parole to invoke habeas corpus relief is all the more applicable to an expired sentence from a prison disciplinary hearing. The Seventh Circuit Court of Appeals describes the issue well in Diaz v. Duckworth, 143 F.3d 345 (7th Cir. 1998).
The more difficult question is whether the burden of establishing collateral consequences of a judgment other than a conviction can, after Spencer, ever be carried when, as in Bryan and this case, the only consequences of which the defendant is complaining are contingent upon committing future crimes or future disciplinary violations (such consequences as being subject to enhanced punishment for a future violation, by virtue of the punishment that he is challenging), as distinct from a case in which the disciplined prisoner shows that some statute or regulation attaches a disability to him that is not contingent on his future misconduct. Spencer suggests that the answer is no . . .
Diaz v. Duckworth, 143 F.3d at 346-347. The petitioner has not alleged any collateral consequences to his expired disciplinary hearing convictions. The Court cannot presume any. Because petitioner's sentence had expired or been fully served before this petition was filed, the Court must dismiss this habeas petition as moot.
CONCLUSION
For the above stated reasons, this petition for habeas corpus relief is denied as moot, and the case is dismissed.
SO ORDERED.